Amendment 363 GUIDELINES MANUAL November 1, 1997 This amendment implements the instructions in Section 401 of the Crime Control Act of 1990 (Public Law 101-647), in some cases with a broader scope, by adding specific offense characteristics at subsections (b)(5) and (b)(6). With respect to the portion of the Congressional instruction pertaining to aiders or abettors, no amendment was required because §1B1.3 (Relevant Conduct) provides an offense level greater than that required by the Congressional instruction. A separate amendment (amendment 388) clarifies that maltreatment to a life threatening degree constitutes life-threatening bodily injury. In addition, this amendment replaces the current subsection (b)(5) with a revised subsection (b)(7) that addresses other offenses connected with kidnapping, abduction, or unlawful restraint in a manner that more appropriately reflects the combined seriousness of such offenses, and inserts a cross reference to address the case in which the victim was murdered. The effective date of this amendment is November 1, 1991. 364. Section 2B1.1(b)(7) is amended by inserting "-- (A)" immediately before "substantially"; and by deleting the comma immediately following "institution" and inserting in lieu thereof "; or (B) affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense,". The Commentary to §2B1.1 captioned "Statutory Provisions" is amended by inserting "225," immediately before "641". The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 9 by deleting "215" and inserting in lieu thereof "20"; and by deleting "1008, 1014, and 1344" and inserting in lieu thereof "1007, and 1014". The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 10 by deleting: "as a consequence of the offense the institution became insolvent, substantially reduced benefits to pensioners or insureds, was unable on demand to refund fully any deposit, payment or investment, or was so depleted of its assets as to be forced to merge with another institution in order to continue active operations", and inserting in lieu thereof: ", as a consequence of the offense, the institution became insolvent; substantially reduced benefits to pensioners or insureds; was unable on demand to refund fully any deposit, payment, or investment; was so depleted of its assets as to be forced to merge with another institution in order to continue active operations; or was placed in substantial jeopardy of any of the above". The Commentary to §2B1.1 captioned "Application Notes" is amended by inserting the following additional notes: "11. ‘The defendant derived more than $1,000,000 in gross receipts from the offense,’ as used in subsection (b)(7)(B), generally means that the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000. ‘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). 12. 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 crimes enterprise.’ 13. If subsection (b)(7)(A) or (B) applies, there shall be a rebuttable presumption that the offense involved ‘more than minimal planning.’". The Commentary to §2B1.1 captioned "Background" is amended in the seventh paragraph by deleting "(b)(7)" and inserting in lieu thereof "(b)(7)(A)", and by deleting "statutory directive" and inserting in lieu thereof "instruction"; and by inserting the following additional paragraph at the end: – 174 – November 1, 1997 GUIDELINES MANUAL Amendment 364 " Subsection (b)(7)(B) implements the instruction to the Commission in Section 2507 of Public Law 101-647.". Section 2B4.1(b)(2) is amended by inserting "-- (A)" immediately before "substantially"; and by deleting the comma immediately following "institution" and inserting in lieu thereof "; or (B) affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense,". The Commentary to §2B4.1 captioned "Statutory Provisions" is amended by inserting ", 225" immediately following "224". The Commentary to §2B4.1 captioned "Application Notes" is amended in Note 2 by deleting "Bribery" and inserting in lieu thereof "Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right". The Commentary to §2B4.1 captioned "Application Notes" is amended in Note 3 by deleting "215" and inserting in lieu thereof "20"; and by deleting "1008, 1014, and 1344" and inserting in lieu thereof "1007, and 1014". The Commentary to §2B4.1 captioned "Application Notes" is amended in Note 4 by deleting: "as a consequence of the offense the institution became insolvent, substantially reduced benefits to pensioners or insureds, was unable on demand to refund fully any deposit, payment or investment, or was so depleted of its assets as to be forced to merge with another institution in order to continue active operations", and inserting in lieu thereof: ", as a consequence of the offense, the institution became insolvent; substantially reduced benefits to pensioners or insureds; was unable on demand to refund fully any deposit, payment, or investment; was so depleted of its assets as to be forced to merge with another institution in order to continue active operations; or was placed in substantial jeopardy of any of the above". The Commentary to §2B4.1 captioned "Application Notes" is amended by inserting the following additional notes: "5. ‘The defendant derived more than $1,000,000 in gross receipts from the offense,’ as used in subsection (b)(2)(B), generally means that the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000. ‘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). 6. 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 crimes enterprise.’". The Commentary to §2B4.1 captioned "Background" is amended in the second paragraph by deleting the second sentence as follows: "As is the case for most other offenses covered by this guideline, the maximum term of imprisonment authorized is five years."; in the seventh paragraph by deleting "(b)(2)" and inserting in lieu thereof "(b)(2)(A)", and by deleting "statutory directive" and inserting in lieu thereof "instruction"; and by inserting the following additional paragraph at the end: " Subsection (b)(2)(B) implements the instruction to the Commission in Section 2507 of Public Law 101-647.". – 175 – Amendment 364 GUIDELINES MANUAL November 1, 1997 Section 2F1.1(b)(6) is amended by inserting "-- (A)" immediately before "substantially"; and by deleting the comma immediately following "institution" and inserting in lieu thereof "; or (B) affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense,". The Commentary to §2F1.1 captioned "Statutory Provisions" is amended by inserting "225," immediately before "285". The Commentary to §2F1.1 captioned "Application Notes" is amended in Note 14 by deleting "215" and inserting in lieu thereof "20"; and by deleting "1008, 1014, and 1344" and inserting in lieu thereof "1007, and 1014". The Commentary to §2F1.1 captioned "Application Notes" is amended in Note 15 by deleting: "as a consequence of the offense the institution became insolvent, substantially reduced benefits to pensioners or insureds, was unable on demand to refund fully any deposit, payment or investment, or was so depleted of its assets as to be forced to merge with another institution in order to continue active operations", and inserting in lieu thereof: ", as a consequence of the offense, the institution became insolvent; substantially reduced benefits to pensioners or insureds; was unable on demand to refund fully any deposit, payment, or investment; was so depleted of its assets as to be forced to merge with another institution in order to continue active operations; or was placed in substantial jeopardy of any of the above". The Commentary to §2F1.1 captioned "Application Notes" is amended by inserting the following additional notes: "16. ‘The defendant derived more than $1,000,000 in gross receipts from the offense,’ as used in subsection (b)(6)(B), generally means that the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000. ‘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). 17. 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 crimes enterprise.’ 18. If subsection (b)(6)(A) or (B) applies, there shall be a rebuttable presumption that the offense involved ‘more than minimal planning.’". The Commentary to §2F1.1 captioned "Background" is amended in the sixth paragraph by deleting "(b)(6)" and inserting in lieu thereof "(b)(6)(A)", and by deleting "statutory directive" and inserting in lieu thereof "instruction"; and by inserting the following additional paragraph at the end: " Subsection (b)(6)(B) implements the instruction to the Commission in Section 2507 of Public Law 101-647.". This amendment implements the instruction to the Commission in Section 2507 of the Crime Control Act of 1990 (Public Law 101-647). It also reflects the new offense relating to a continuing financial crimes enterprise created by Section 2510 of the Crime Control Act of 1990.