2002 Federal Sentencing Guidelines
Chapter Two - Offense Conduct Part B - Basic Economic Offenses
1. Theft, Embezzlement, Receipt of Stolen Property, Property
Destruction, and Offenses Involving Fraud or Deceit
§ 2B1.1. Larceny, Embezzlement, and Other Forms of
Theft; Offenses Involving Stolen Property; Property Damage
or Destruction; Fraud and Deceit; Forgery; Offenses Involving
Altered or Counterfeit Instruments Other than Counterfeit
Bearer Obligations of the United States
(a) Base Offense Level: 6
(b) Specific Offense Characteristics
(1) If the loss exceeded $5,000, increase the offense level as follows:
||(Apply the Greatest)
||Increase in Level
||$5,000 or less
||More than $5,000
||More than $10,000
||More than $30,000
||More than $70,000
||More than $120,000
||More than $200,000
||More than $400,000
||More than $1,000,000
||More than $2,500,000
||More than $7,000,000
||More than $20,000,000
||More than $50,000,000
||More than $100,000,000
(2) (Apply the greater) If the offense--
(A) (i) involved more than 10, but less than 50, victims; or (ii) was committed
through mass-marketing, increase by 2 levels; or
(B) involved 50 or more victims, increase by 4 levels.
(3) If the offense involved a theft from the
person of another, increase by 2 levels.
(4) If the offense involved receiving stolen property, and the defendant
was a person in the business of receiving and selling stolen property,
increase by 2 levels.
(5) If the offense involved misappropriation of a trade secret and the
defendant knew or intended that the offense would benefit a foreign government,
foreign instrumentality, or foreign agent, increase by 2 levels.
(6) If the offense involved theft of, damage to, or destruction of, property
from a national cemetery, increase by 2 levels.
(7) If the offense involved (A) a misrepresentation that the defendant
was acting on behalf of a charitable, educational, religious, or political
organization, or a government agency; (B) a misrepresentation or other
fraudulent action during the course of a bankruptcy proceeding; (C) a
violation of any prior, specific judicial or administrative order, injunction,
decree, or process not addressed elsewhere in the guidelines; or (D)
a misrepresentation to a consumer in connection with obtaining, providing,
or furnishing financial assistance for an institution of higher education,
increase by 2 levels. If the resulting offense level is less than level
10, increase to level 10.
(8) If (A) the defendant relocated, or participated in relocating, a fraudulent
scheme to another jurisdiction to evade law enforcement or regulatory
officials; (B) a substantial part of a fraudulent scheme was committed
from outside the United States; or (C) the offense otherwise involved
sophisticated means, increase by 2 levels. If the resulting offense level
is less than level 12, increase to level 12.
(9) If the offense involved (A) the possession or use of any device- making
equipment; (B) the production or trafficking of any unauthorized access
device or counterfeit access device; or (C)(i) the unauthorized transfer
or use of any means of identification unlawfully to produce or obtain
any other means of identification; or (ii) the possession of 5 or more
means of identification that unlawfully were produced from, or obtained
by the use of, another means of identification, increase by 2 levels.
If the resulting offense level is less than level 12, increase to level
(10) If the offense involved an organized scheme to steal vehicles or vehicle
parts, and the offense level is less than level 14, increase to level
(11) If the offense involved (A) the conscious or reckless risk of death
or serious bodily injury; or (B) possession of a dangerous weapon (including
a firearm) in connection with the offense, increase by 2 levels. If the
resulting offense level is less than level 14, increase to level 14.
(12) (Apply the greater) If--
(A) the defendant derived more than $1,000,000 in gross receipts
from one or more financial institutions as a result of the
offense, increase by 2 levels; or
(B) the offense substantially jeopardized the safety and soundness
of a financial institution, increase by 4 levels.
If the resulting offense level determined under
subdivision (A) or (B) is less than level 24, increase to level
(c) Cross References
(1) If (A) a firearm, destructive device,
explosive material, or controlled substance was taken,
or the taking of any such item was an object of the offense;
or (B) the stolen property received, transported, transferred,
transmitted, or possessed was a firearm, destructive device,
explosive material, or controlled substance, apply § 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses);
Attempt or Conspiracy), § 2D2.1 (Unlawful Possession;
Attempt or Conspiracy), § 2K1.3 (Unlawful Receipt,
Possession, or Transportation of Explosive Materials; Prohibited
Transactions Involving Explosive Materials), or § 2K2.1
(Unlawful Receipt, Possession, or Transportation of Firearms
or Ammunition; Prohibited Transactions Involving Firearms
or Ammunition), as appropriate.
(2) If the offense involved arson, or property damage by use of explosives,
apply § 2K1.4 (Arson; Property Damage by Use of Explosives),
if the resulting offense level is greater than that determined above.
(3) If (A) neither subdivision (1) nor (2) of this subsection applies;
(B) the defendant was convicted under a statute proscribing false,
fictitious, or fraudulent statements or representations generally
U.S.C. § 1001
, § 1341
, § 1342
or § 1343
and (C) the conduct set forth in the count of conviction establishes
an offense specifically covered by another guideline in Chapter Two
(Offense Conduct), apply that other guideline.
(4) If the offense involved a cultural heritage resource, apply § 2B1.5
(Theft of, Damage to, or Destruction of, Cultural Heritage Resources;
Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural
Heritage Resources), if the resulting offense level is greater than
that determined above.
Statutory Provisions: 7
U.S.C. § § 6, 6b, 6c, 6h, 6o, 13, 23; 15
U.S.C. § § 50, 77e, 77q, 77x, 78j, 78ff, 80b-
6, 1644, 6821; 18
U.S.C. § § 38, 225, 285-289, 471- 473, 500, 510, 553(a)(1), 641, 656, 657, 659, 662, 664, 1001-1008, 1010-1014, 1016-1022, 1025, 1026, 1028, 1029, 1030(a)(4)-(5), 1031, 1341-1344, 1361, 1363, 1702, 1703 (if
vandalism or malicious mischief, including destruction of
mail, is involved), 1708, 1831, 1832, 1992, 1993(a)(1), (a)(4),
2113(b), 2312-2317, 2332b(a)(1); 29
U.S.C. § 501(c); 42
U.S.C. § 1011; 49
U.S.C. § § 30170, 46317(a), 60123(b).
For additional statutory provision(s), see Appendix A (Statutory
1. Definitions.--For purposes of this guideline:
"Cultural heritage resource" has the meaning given that term in Application
Note 1 of the Commentary to § 2B1.5 (Theft of, Damage to, or Destruction
of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation,
or Receipt of Cultural Heritage Resources).
"Financial institution" includes any institution described in 18
U.S.C. § 20
, § 656
, § 657, § 1005
, § 1006
, § 1007
or § 1014
any state or foreign bank, trust company, credit union, insurance company, investment
company, mutual fund, savings (building and loan) association, union or employee
pension fund; any health, medical, or hospital insurance association; brokers
and dealers registered, or required to be registered, with the Securities and
Exchange Commission; futures commodity merchants and commodity pool operators
registered, or required to be registered, with the Commodity Futures Trading
Commission; and any similar entity, whether or not insured by the federal government. "Union
or employee pension fund" and "any health, medical, or hospital insurance
association," primarily include large pension funds that serve many persons
(e.g., pension funds of large national and international organizations, unions,
and corporations doing substantial interstate business), and associations that
undertake to provide pension, disability, or other benefits (e.g., medical or
hospitalization insurance) to large numbers of persons.
"Firearm" and "destructive device" have the meaning given
those terms in the Commentary to § 1B1.1 (Application Instructions).
"National cemetery" means a cemetery (A) established under section
2400 of title 38, United States Code
; or (B) under the jurisdiction of the
Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force,
or the Secretary of the Interior.
"Theft from the person of another" means theft, without the use of
force, of property that was being held by another person or was within arms'
reach. Examples include pick-pocketing and non-forcible purse-snatching, such
as the theft of a purse from a shopping cart.
2. Loss Under Subsection (b)(1).--This application note applies to the
determination of loss under subsection (b)(1).
(A) General Rule.--Subject to the exclusions in subdivision
(D), loss is the greater of actual loss or intended loss.
(i) Actual Loss.--"Actual loss" means
the reasonably foreseeable pecuniary harm that resulted from
(ii) Intended Loss.--"Intended loss" (I) means the pecuniary
harm that was intended to result from the offense; and (II) includes intended
pecuniary harm that would have been impossible or unlikely to occur (e.g.,
as in a government sting operation, or an insurance fraud in which the
claim exceeded the insured value).
(iii) Pecuniary Harm.--"Pecuniary harm" means harm that is monetary
or that otherwise is readily measurable in money. Accordingly, pecuniary
harm does not include emotional distress, harm to reputation, or other
non- economic harm.
(iv) Reasonably Foreseeable Pecuniary Harm.--For purposes of this guideline, "reasonably
foreseeable pecuniary harm" means pecuniary harm that the defendant
knew or, under the circumstances, reasonably should have known, was a potential
result of the offense.
(v) Rules of Construction in Certain Cases.--In the cases described in
subdivisions (I) through (III), reasonably foreseeable pecuniary harm
shall be considered to include the pecuniary harm specified for those
cases as follows:
(I) Product Substitution Cases.--In the case of a product substitution
offense, the reasonably foreseeable pecuniary harm includes the reasonably
foreseeable costs of making substitute transactions and handling or disposing
of the product delivered, or of retrofitting the product so that it can
be used for its intended purpose, and the reasonably foreseeable costs
of rectifying the actual or potential disruption to the victim's business
operations caused by the product substitution.
(II) Procurement Fraud Cases.--In the case of a procurement fraud, such
as a fraud affecting a defense contract award, reasonably foreseeable
pecuniary harm includes the reasonably foreseeable administrative costs
to the government and other participants of repeating or correcting the
procurement action affected, plus any increased costs to procure the
product or service involved that was reasonably foreseeable.
(III) Protected Computer Cases.--In the case of an offense involving
unlawfully accessing, or exceeding authorized access to, a "protected
computer" as defined in 18
U.S.C. § 1030(e)(2), actual loss includes the following pecuniary
harm, regardless of whether such pecuniary harm was reasonably foreseeable:
reasonable costs to the victim of conducting a damage assessment, and
restoring the system and data to their condition prior to the offense,
and any lost revenue due to interruption of service.
(B) Gain.--The court shall use the gain that
resulted from the offense as an alternative measure of loss
only if there is a loss but it reasonably cannot be determined.
(C) Estimation of Loss.--The court need only make a reasonable estimate
of the loss. The sentencing judge is in a unique position to assess
the evidence and estimate the loss based upon that evidence. For this
reason, the court's loss determination is entitled to appropriate deference.
U.S.C. § 3742(e) and (f).
The estimate of the loss shall be based on available information,
taking into account, as appropriate and practicable under the
circumstances, factors such as the following:
(i) The fair market value of the property unlawfully taken
or destroyed; or, if the fair market value is impracticable
to determine or inadequately measures the harm, the cost to
the victim of replacing that property.
(ii) The cost of repairs to damaged property.
(iii) The approximate number of victims multiplied by the
average loss to each victim.
(iv) More general factors, such as the scope and duration
of the offense and revenues generated by similar operations.
(D) Exclusions from Loss.--Loss shall not include
(i) Interest of any kind, finance charges, late fees, penalties,
amounts based on an agreed-upon return or rate of return, or
other similar costs.
(ii) Costs to the government of, and costs incurred by victims
primarily to aid the government in, the prosecution and criminal
investigation of an offense.
(E) Credits Against Loss.--Loss shall be reduced
by the following:
(i) The money returned, and the fair market value of the property
returned and the services rendered, by the defendant or other
persons acting jointly with the defendant, to the victim before
the offense was detected. The time of detection of the offense
is the earlier of (I) the time the offense was discovered by
a victim or government agency; or (II) the time the defendant
knew or reasonably should have known that the offense was detected
or about to be detected by a victim or government agency.
(ii) In a case involving collateral pledged or otherwise provided
by the defendant, the amount the victim has recovered at the
time of sentencing from disposition of the collateral, or if
the collateral has not been disposed of by that time, the fair
market value of the collateral at the time of sentencing.
(F) Special Rules.--Notwithstanding subdivision
(A), the following special rules shall be used to assist in
determining loss in the cases indicated:
(i) Stolen or Counterfeit Credit Cards and Access Devices;
Purloined Numbers and Codes.--In a case involving any counterfeit
access device or unauthorized access device, loss includes
any unauthorized charges made with the counterfeit access device
or unauthorized access device and shall be not less than $500
per access device. However, if the unauthorized access device
is a means of telecommunications access that identifies a specific
telecommunications instrument or telecommunications account
(including an electronic serial number/mobile identification
number (ESN/MIN) pair), and that means was only possessed,
and not used, during the commission of the offense, loss shall
be not less than $100 per unused means. For purposes of this
subdivision, "counterfeit access device" and "unauthorized
access device" have the meaning given those terms in Application
(ii) Government Benefits.--In a case involving government
benefits (e.g., grants, loans, entitlement program payments),
loss shall be considered to be not less than the value of the
benefits obtained by unintended recipients or diverted to unintended
uses, as the case may be. For example, if the defendant was
the intended recipient of food stamps having a value of $100
but fraudulently received food stamps having a value of $150,
loss is $50.
(iii) Davis-Bacon Act Violations.--In a case involving a Davis-Bacon
Act violation (i.e., a violation of 40
U.S.C. § 276a, criminally prosecuted under 18
U.S.C. § 1001), the value of the benefits shall be
considered to be not less than the difference between the legally
required wages and actual wages paid.
(iv) Ponzi and Other Fraudulent Investment Schemes.--In a
case involving a fraudulent investment scheme, such as a Ponzi
scheme, loss shall not be reduced by the money or the value
of the property transferred to any individual investor in the
scheme in excess of that investor's principal investment (i.e.,
the gain to an individual investor in the scheme shall not
be used to offset the loss to another individual investor in
(v) Certain Other Unlawful Misrepresentation Schemes.--In
a case involving a scheme in which (I) services were fraudulently
rendered to the victim by persons falsely posing as licensed
professionals; (II) goods were falsely represented as approved
by a governmental regulatory agency; or (III) goods for which
regulatory approval by a government agency was required but
not obtained, or was obtained by fraud, loss shall include
the amount paid for the property, services or goods transferred,
rendered, or misrepresented, with no credit provided for the
value of those items or services.
(vi) Value of Controlled Substances.--In a case involving
controlled substances, loss is the estimated street value of
the controlled substances.
(vii) Value of Cultural Heritage Resources.--In a case involving
a cultural heritage resource, loss attributable to that cultural
heritage resource shall be determined in accordance with the
rules for determining the "value of the cultural heritage
resource" set forth in Application Note 2 of the Commentary
to § 2B1.5.
3. Victim and Mass-Marketing Enhancement under
(A) Definitions.-- For purposes of subsection
(i) "Mass-marketing" means a plan, program, promotion,
or campaign that is conducted through solicitation by telephone,
mail, the Internet, or other means to induce a large number
of persons to (I) purchase goods or services; (II) participate
in a contest or sweepstakes; or (III) invest for financial
profit. "Mass-marketing" includes, for example, a
telemarketing campaign that solicits a large number of individuals
to purchase fraudulent life insurance policies.
(ii) "Victim" means (I) any person who sustained
any part of the actual loss determined under subsection (b)(1);
or (II) any individual who sustained bodily injury as a result
of the offense. "Person" includes individuals, corporations,
companies, associations, firms, partnerships, societies, and
joint stock companies.
(B) Undelivered United States Mail.--
(i) In General.--In a case in which undelivered United States
mail was taken, or the taking of such item was an object of
the offense, or in a case in which the stolen property received,
transported, transferred, transmitted, or possessed was undelivered
United States mail, "victim" means any person (I)
described in subdivision (A)(ii) of this note; or (II) who
was the intended recipient, or addressee, of the undelivered
United States mail.
(ii) Special Rule.--A case described in subdivision (B)(i)
of this note that involved a Postal Service (I) relay box;
(II) collection box; (III) delivery vehicle; or (IV) satchel
or cart, shall be considered to have involved 50 or more victims.
(iii) Definition.--"Undelivered United States mail" means
mail that has not actually been received by the addressee or
his agent (e.g., mail taken from the addressee's mail box).
(C) Vulnerable Victims.--If subsection (b)(2)(B)
applies, an enhancement under § 3A1.1(b)(2) shall not
4. Enhancement for Business of Receiving and Selling Stolen
Property under Subsection (b)(4).--For purposes of subsection
(b)(4), the court shall consider the following non-exhaustive
list of factors in determining whether the defendant was in
the business of receiving and selling stolen property:
(A) The regularity and sophistication of the
(B) The value and size of the inventory of stolen property maintained by
(C) The extent to which the defendant's activities encouraged or facilitated
(D) The defendant's past activities involving stolen property.
5. Application of Subsection (b)(7).--
(A) In General.--The adjustments in subsection
(b)(7) are alternative rather than cumulative. If, in a particular
case, however, more than one of the enumerated factors applied,
an upward departure may be warranted.
(B) Misrepresentations Regarding Charitable and Other Institutions.-- Subsection
(b)(7)(A) applies in any case in which the defendant represented that
the defendant was acting to obtain a benefit on behalf of a charitable,
educational, religious, or political organization, or a government agency
(regardless of whether the defendant actually was associated with the
organization or government agency) when, in fact, the defendant intended
to divert all or part of that benefit (e.g., for the defendant's personal
gain). Subsection (b)(7)(A) applies, for example, to the following:
(i) A defendant who solicited contributions for a non-existent
famine relief organization.
(ii) A defendant who solicited donations from church members
by falsely claiming to be a fundraiser for a religiously affiliated
(iii) A defendant, chief of a local fire department, who conducted
a public fundraiser representing that the purpose of the fundraiser
was to procure sufficient funds for a new fire engine when,
in fact, the defendant intended to divert some of the funds
for the defendant's personal benefit.
(C) Fraud in Contravention of Prior Judicial
Order.--Subsection (b)(7)(C) provides an enhancement if the
defendant commits a fraud in contravention of a prior, official
judicial or administrative warning, in the form of an order,
injunction, decree, or process, to take or not to take a specified
action. A defendant who does not comply with such a prior,
official judicial or administrative warning demonstrates aggravated
criminal intent and deserves additional punishment. If it is
established that an entity the defendant controlled was a party
to the prior proceeding that resulted in the official judicial
or administrative action, and the defendant had knowledge of
that prior decree or order, this enhancement applies even if
the defendant was not a specifically named party in that prior
case. For example, a defendant whose business previously was
enjoined from selling a dangerous product, but who nonetheless
engaged in fraudulent conduct to sell the product, is subject
to this enhancement. This enhancement does not apply if the
same conduct resulted in an enhancement pursuant to a provision
found elsewhere in the guidelines (e.g., a violation of a condition
of release addressed in § 2J1.7 (Commission of Offense
While on Release) or a violation of probation addressed in § 4A1.1
(Criminal History Category)).
(D) College Scholarship Fraud.--For purposes of subsection (b)(7)(D):
"Financial assistance" means any scholarship, grant, loan, tuition,
discount, award, or other financial assistance for the purpose of financing an
"Institution of higher education" has the meaning given that term in
section 101 of the Higher Education Act of 1954 (20
U.S.C. § 1001
(E) Non-Applicability of Enhancements.--
(i) Subsection (b)(7)(A).--If the conduct that forms the basis
for an enhancement under subsection (b)(7)(A) is the only conduct
that forms the basis for an adjustment under § 3B1.3 (Abuse
of Position of Trust or Use of Special Skill), do not apply
that adjustment under § 3B1.3.
(ii) Subsection (b)(7)(B) and (C).--If the conduct that forms
the basis for an enhancement under subsection (b)(7)(B) or
(C) is the only conduct that forms the basis for an adjustment
under § 3C1.1 (Obstructing or Impeding the Administration
of Justice), do not apply that adjustment under § 3C1.1.
6. Sophisticated Means Enhancement under Subsection (b)(8).--
(A) Definition of United States.--For purposes
of subsection (b)(8)(B), "United States" means each
of the 50 states, the District of Columbia, the Commonwealth
of Puerto Rico, the United States Virgin Islands, Guam, the
Northern Mariana Islands, and American Samoa.
(B) Sophisticated Means Enhancement.--For purposes of subsection (b)(8)(C), "sophisticated
means" means especially complex or especially intricate offense conduct
pertaining to the execution or concealment of an offense. For example,
in a telemarketing scheme, locating the main office of the scheme in one
jurisdiction but locating soliciting operations in another jurisdiction
ordinarily indicates sophisticated means. Conduct such as hiding assets
or transactions, or both, through the use of fictitious entities, corporate
shells, or offshore financial accounts also ordinarily indicates sophisticated
(C) Non-Applicability of Enhancement.--If the conduct that forms the basis
for an enhancement under subsection (b)(8) is the only conduct that forms
the basis for an adjustment under § 3C1.1, do not apply that adjustment
under § 3C1.1.
7. Application of Subsection (b)(9).--
(A) Definitions.--For purposes of subsection
"Counterfeit access device" (i) has
the meaning given that term in 18
U.S.C. § 1029(e)(2)
; and (ii) includes a telecommunications
instrument that has been modified or altered to obtain unauthorized
use of telecommunications service. "Telecommunications
service" has the meaning given that term in 18
U.S.C. § 1029(e)(9).
"Means of identification" has the meaning given that term in 18
U.S.C. § 1028(d)(4)
, except that such means of identification shall
be of an actual (i.e., not fictitious) individual, other than the defendant or
a person for whose conduct the defendant is accountable under § 1B1.3 (Relevant
"Produce" includes manufacture, design, alter, authenticate, duplicate,
or assemble. "Production" includes manufacture, design, alteration,
authentication, duplication, or assembly.
(B) Identification Documents.--Offenses involving identification documents,
false identification documents, and means of identification, in violation
U.S.C. § 1028
, also are covered by this guideline. If the primary
purpose of the offense, under 18
U.S.C. § 1028
, was to violate, or assist another to violate,
the law pertaining to naturalization, citizenship, or legal resident
status, apply § 2L2.1 (Trafficking in a Document Relating to Naturalization)
or § 2L2.2 (Fraudulently Acquiring Documents Relating to Naturalization),
as appropriate, rather than this guideline.
(C) Application of Subsection (b)(9)(C)(i).--
(i) In General.--Subsection (b)(9)(C)(i) applies in a case
in which a means of identification of an individual other than
the defendant (or a person for whose conduct the defendant
is accountable under § 1B1.3 (Relevant Conduct)) is used
without that individual's authorization unlawfully to produce
or obtain another means of identification.
(ii) Examples.--Examples of conduct to which subsection (b)(9)(C)(i)
applies are as follows:
(I) A defendant obtains an individual's name and social security
number from a source (e.g., from a piece of mail taken from
the individual's mailbox) and obtains a bank loan in that individual's
name. In this example, the account number of the bank loan
is the other means of identification that has been obtained
(II) A defendant obtains an individual's name and address
from a source (e.g., from a driver's license in a stolen wallet)
and applies for, obtains, and subsequently uses a credit card
in that individual's name. In this example, the credit card
is the other means of identification that has been obtained
(iii) Nonapplicability of Subsection (b)(9)(C)(i): --Examples
of conduct to which subsection (b)(9)(C)(i) does not apply
are as follows:
(I) A defendant uses a credit card from a stolen wallet only
to make a purchase. In such a case, the defendant has not used
the stolen credit card to obtain another means of identification.
(II) A defendant forges another individual's signature to
cash a stolen check. Forging another individual's signature
is not producing another means of identification.
(D) Application of Subsection (b)(9)(C)(ii).--Subsection (b)(9)(C)(ii)
applies in any case in which the offense involved the possession
of 5 or more means of identification that unlawfully were produced
or obtained, regardless of the number of individuals in whose
name (or other identifying information) the means of identification
were so produced or so obtained.
8. Chop Shop Enhancement under Subsection (b)(10).--Subsection
(b)(10) provides a minimum offense level in the case of an
ongoing, sophisticated operation (such as an auto theft ring
or "chop shop") to steal vehicles or vehicle parts,
or to receive stolen vehicles or vehicle parts. "Vehicles" refers
to all forms of vehicles, including aircraft and watercraft.
9. Gross Receipts Enhancement under Subsection (b)(12)(A).--
(A) In General.--For purposes of subsection
(b)(12)(A), the defendant shall be considered to have derived
more than $1,000,000 in gross receipts if the gross receipts
to the defendant individually, rather than to all participants,
(B) Definition.--"Gross receipts from the offense" includes all
property, real or personal, tangible or intangible, which is obtained directly
or indirectly as a result of such offense. See 18
U.S.C. § 982(a)(4)
10. Enhancement for Substantially Jeopardizing the Safety
and Soundness of a Financial Institution under Subsection (b)(12)(B).--For
purposes of subsection (b)(12)(B), an offense shall be considered
to have substantially jeopardized the safety and soundness
of a financial institution if, as a consequence of the offense,
the institution (A) became insolvent; (B) substantially reduced
benefits to pensioners or insureds; (C) was unable on demand
to refund fully any deposit, payment, or investment; (D) was
so depleted of its assets as to be forced to merge with another
institution in order to continue active operations; or (E)
was placed in substantial jeopardy of any of subdivisions (A)
through (D) of this note.
11. Cross Reference in Subsection (c)(3).--Subsection (c)(3)
provides a cross reference to another guideline in Chapter
Two (Offense Conduct) in cases in which the defendant is convicted
of a general fraud statute, and the count of conviction establishes
an offense more aptly covered by another guideline. Sometimes,
offenses involving fraudulent statements are prosecuted under 18
U.S.C. § 1001, or a similarly general statute, although
the offense is also covered by a more specific statute. Examples
include false entries regarding currency transactions, for
which § 2S1.3 (Structuring Transactions to Evade Reporting
Requirements) likely would be more apt, and false statements
to a customs officer, for which § 2T3.1 (Evading Import
Duties or Restrictions (Smuggling); Receiving or Trafficking
in Smuggled Property) likely would be more apt. In certain
other cases, the mail or wire fraud statutes, or other relatively
broad statutes, are used primarily as jurisdictional bases
for the prosecution of other offenses.
12. Continuing Financial Crimes Enterprise.--If the defendant
is convicted under 18
U.S.C. § 225 (relating to a continuing financial crimes
enterprise), the offense level is that applicable to the underlying
series of offenses comprising the "continuing financial
13. Partially Completed Offenses.--In the case of a partially
completed offense (e.g., an offense involving a completed theft
or fraud that is part of a larger, attempted theft or fraud),
the offense level is to be determined in accordance with the
provisions of § 2X1.1 (Attempt, Solicitation, or Conspiracy)
whether the conviction is for the substantive offense, the
inchoate offense (attempt, solicitation, or conspiracy), or
both. See Application Note 4 of the Commentary to § 2X1.1.
14. Multiple-Count Indictments.--Some fraudulent schemes may
result in multiple-count indictments, depending on the technical
elements of the offense. The cumulative loss produced by a
common scheme or course of conduct should be used in determining
the offense level, regardless of the number of counts of conviction.
See Chapter Three, Part D (Multiple Counts).
15. Departure Considerations.--
(A) Upward Departure Considerations.--There
may be cases in which the offense level determined under this
guideline substantially understates the seriousness of the
offense. In such cases, an upward departure may be warranted.
The following is a non-exhaustive list of factors that the
court may consider in determining whether an upward departure
(i) A primary objective of the offense was an aggravating,
non-monetary objective. For example, a primary objective of
the offense was to inflict emotional harm.
(ii) The offense caused or risked substantial non-monetary
harm. For example, the offense caused physical harm, psychological
harm, or severe emotional trauma, or resulted in a substantial
invasion of a privacy interest (through, for example, the theft
of personal information such as medical, educational, or financial
(iii) The offense involved a substantial amount of interest
of any kind, finance charges, late fees, penalties, amounts
based on an agreed-upon return or rate of return, or other
similar costs, not included in the determination of loss for
purposes of subsection (b)(1).
(iv) The offense created a risk of substantial loss beyond
the loss determined for purposes of subsection (b)(1).
(v) The offense endangered the solvency or financial security
of one or more victims.
(vi) In a case involving stolen information from a "protected
computer", as defined in 18
U.S.C. § 1030(e)(2), the defendant sought the stolen
information to further a broader criminal purpose.
(vii) In a case involving access devices or unlawfully produced
or unlawfully obtained means of identification:
(I) The offense caused substantial harm to the victim's reputation
or credit record, or the victim suffered a substantial inconvenience
related to repairing the victim's reputation or a damaged credit
(II) An individual whose means of identification the defendant
used to obtain unlawful means of identification is erroneously
arrested or denied a job because an arrest record has been
made in that individual's name.
(III) The defendant produced or obtained numerous means of
identification with respect to one individual and essentially
assumed that individual's identity.
(B) Downward Departure Consideration.--There
may be cases in which the offense level determined under this
guideline substantially overstates the seriousness of the offense.
In such cases, a downward departure may be warranted.
Background: This guideline covers offenses involving theft, stolen property,
property damage or destruction, fraud, forgery, and counterfeiting (other
than offenses involving altered or counterfeit bearer obligations of
the United States). It also covers offenses involving altering or removing
motor vehicle identification numbers, trafficking in automobiles or automobile
parts with altered or obliterated identification numbers, odometer laws
and regulations, obstructing correspondence, the falsification of documents
or records relating to a benefit plan covered by the Employment Retirement
Income Security Act, and the failure to maintain, or falsification of,
documents required by the Labor Management Reporting and Disclosure Act.
Because federal fraud statutes often are broadly written, a single pattern
of offense conduct usually can be prosecuted under several code sections,
as a result of which the offense of conviction may be somewhat arbitrary.
Furthermore, most fraud statutes cover a broad range of conduct with
extreme variation in severity. The specific offense characteristics and
cross references contained in this guideline are designed with these
considerations in mind.
The Commission has determined that, ordinarily, the sentences of defendants
convicted of federal offenses should reflect the nature and magnitude
of the loss caused or intended by their crimes. Accordingly, along with
other relevant factors under the guidelines, loss serves as a measure
of the seriousness of the offense and the defendant's relative culpability
and is a principal factor in determining the offense level under this
Theft from the person of another, such as pickpocketing or non-forcible
purse-snatching, receives an enhanced sentence because of the increased
risk of physical injury. This guideline does not include an enhancement
for thefts from the person by means of force or fear; such crimes are
robberies and are covered under § 2B3.1 (Robbery).
A minimum offense level of level 14 is provided for offenses involving
an organized scheme to steal vehicles or vehicle parts. Typically, the
scope of such activity is substantial, but the value of the property
may be particularly difficult to ascertain in individual cases because
the stolen property is rapidly resold or otherwise disposed of in the
course of the offense. Therefore, the specific offense characteristic
of "organized scheme" is used as an alternative to "loss" in
setting a minimum offense level.
Use of false pretenses involving charitable causes and government agencies
enhances the sentences of defendants who take advantage of victims' trust
in government or law enforcement agencies or the generosity and charitable
motives of victims. Taking advantage of a victim's self-interest does
not mitigate the seriousness of fraudulent conduct; rather, defendants
who exploit victims' charitable impulses or trust in government create
particular social harm. In a similar vein, a defendant who has been subject
to civil or administrative proceedings for the same or similar fraudulent
conduct demonstrates aggravated criminal intent and is deserving of additional
punishment for not conforming with the requirements of judicial process
or orders issued by federal, state, or local administrative agencies.
Offenses that involve the use of financial transactions or financial accounts
outside the United States in an effort to conceal illicit profits and
criminal conduct involve a particularly high level of sophistication
and complexity. These offenses are difficult to detect and require costly
investigations and prosecutions. Diplomatic processes often must be used
to secure testimony and evidence beyond the jurisdiction of United States
courts. Consequently, a minimum offense level of level 12 is provided
for these offenses.
Subsection (b)(7)(D) implements, in a broader form, the directive in section
3 of the College Scholarship Fraud Prevention Act of 2000,
Public Law 106- 420
Subsections (b)(9)(A) and(B) implement the instruction to the Commission
in section 4 of the Wireless Telephone Protection Act, Public
Subsection (b)(9)(C) implements the directive to the Commission in section
4 of the Identity Theft and Assumption Deterrence Act of 1998,
Public Law 105- 318
. This subsection focuses principally on an aggravated
form of identity theft known as "affirmative identity theft" or "breeding",
in which a defendant uses another individual's name, social security
number, or some other form of identification (the "means of identification")
to "breed" (i.e., produce or obtain) new or additional forms
of identification. Because 18
U.S.C. § 1028(d)
broadly defines "means of identification",
the new or additional forms of identification can include items such
as a driver's license, a credit card, or a bank loan. This subsection
provides a minimum offense level of level 12, in part because of the
seriousness of the offense. The minimum offense level accounts for the
fact that the means of identification that were "bred" (i.e.,
produced or obtained) often are within the defendant's exclusive control,
making it difficult for the individual victim to detect that the victim's
identity has been "stolen." Generally, the victim does not
become aware of the offense until certain harms have already occurred
(e.g., a damaged credit rating or an inability to obtain a loan). The
minimum offense level also accounts for the non-monetary harm associated
with these types of offenses, much of which may be difficult or impossible
to quantify (e.g., harm to the individual's reputation or credit rating,
inconvenience, and other difficulties resulting from the offense). The
legislative history of the Identity Theft and Assumption Deterrence Act
of 1998 indicates that Congress was especially concerned with providing
increased punishment for this type of harm.
Historical Note: Effective November 1, 1987. Amended effective
June 15, 1988 (see Appendix C, amendment 7); November 1, 1989
(see Appendix C, amendments 99- 101 and 303); November 1, 1990
(see Appendix C, amendments 312, 317, and 361); November 1,
1991 (see Appendix C, amendments 364 and 393); November 1,
1993 (see Appendix C, amendments 481 and 482); November 1,
1995 (see Appendix C, amendment 512); November 1, 1997 (see
Appendix C, amendment 551); November 1, 1998 (see Appendix
C, amendment 576); November 1, 2000 (see Appendix C, amendment
596); November 1, 2001 (see Appendix C, amendment 617); November
1, 2002 (see Appendix C, amendments 637, 638, and 646).
USSG § 2B1.1 (11/1/02)