U.S.S.G. §2B1.1

(a) Base Offense Level:

(1) 7, if (A) the defendant was convicted of an offense referenced to this

guideline; and (B) that offense of conviction has a statutory maximum

term of imprisonment of 20 years or more; or

(2) 6, otherwise.

(b) Specific Offense Characteristics

(1) If the loss exceeded $6,500, increase the offense level as follows:

LOSS (APPLY THE GREATEST) INCREASE IN LEVEL

(A) $6,500 or less no increase

(B) More than $6,500 add 2

(C) More than $15,000 add 4

(D) More than $40,000 add 6

(E) More than $95,000 add 8

(F) More than $150,000 add 10

(G) More than $250,000 add 12

(H) More than $550,000 add 14

(I) More than $1,500,000 add 16

(J) More than $3,500,000 add 18

(K) More than $9,500,000 add 20

(L) More than $25,000,000 add 22

(M) More than $65,000,000 add 24

(N) More than $150,000,000 add 26

(O) More than $250,000,000 add 28

(P) More than $550,000,000 add 30.

*Notes to Table:

(A) Loss.—Loss is the greater of actual loss or intended loss.

(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) For purposes of this guideline—

(i) “Actual loss” means the reasonably foreseeable pecuniary

harm that resulted from the offense.

(ii) “Intended loss” (I) means the pecuniary harm that the defendant purposely sought to inflict; 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” 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” means pecuniary harm that the defendant knew or, under the circumstances, reasonably should have known, was a potential result of the offense.

(2) (Apply the greatest) If the offense—

(A) (i) involved 10 or more victims; (ii) was committed through mass-marketing; or (iii) resulted in substantial financial hardship to

one or more victims, increase by 2 levels;

(B) resulted in substantial financial hardship to five or more victims,

increase by 4 levels; or

(C) resulted in substantial financial hardship to 25 or more victims,

increase by 6 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 theft of, damage to, destruction of, or trafficking in, property from a national cemetery or veterans’ memorial, increase by 2 levels.

(6) If (A) the defendant was convicted of an offense under 18 U.S.C.

§ 1037; and (B) the offense involved obtaining electronic mail addresses through improper means, increase by 2 levels.

(7) If (A) the defendant was convicted of a federal health care offense involving a government health care program; and (B) the loss under

subsection (b)(1) to the government health care program was (i) more

than $1,000,000, increase by 2 levels; (ii) more than $7,000,000, increase by 3 levels; or (iii) more than $20,000,000, increase by 4 levels.

(8) (Apply the greater) If—

(A) the offense involved conduct described in 18 U.S.C. § 670, increase by 2 levels; or

(B) the offense involved conduct described in 18 U.S.C. § 670, and the

defendant was employed by, or was an agent of, an organization

in the supply chain for the pre-retail medical product, increase

by 4 levels.

(9) 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.

(10) 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 and the defendant intentionally engaged in or caused the conduct constituting sophisticated means, increase by 2 levels. If the resulting offense level is less than level 12,

increase to level 12.

(11) If the offense involved (A) the possession or use of any (i) device-making equipment, or (ii) authentication feature; (B) the production or

trafficking of any (i) unauthorized access device or counterfeit access

device, or (ii) authentication feature; 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 12.

(12) If the offense involved conduct described in 18 U.S.C. § 1040, increase

by 2 levels. If the resulting offense level is less than level 12, increase

to level 12.

(13) If the defendant was convicted under 42 U.S.C. § 408(a), § 1011(a), or

§ 1383a(a) and the statutory maximum term of ten years’ imprisonment applies, increase by 4 levels. If the resulting offense level is less

than 12, increase to level 12.

(14) (Apply the greater) If the offense involved misappropriation of a trade

secret and the defendant knew or intended—

(A) that the trade secret would be transported or transmitted out of

the United States, increase by 2 levels; or

(B) that the offense would benefit a foreign government, foreign instrumentality, or foreign agent, increase by 4 levels.

If subparagraph (B) applies and the resulting offense level is less than

level 14, increase to level 14.

(15) If the offense involved an organized scheme to steal or to receive stolen (A) vehicles or vehicle parts; or (B) goods or chattels that are part

of a cargo shipment, increase by 2 levels. If the resulting offense level

is less than level 14, increase to level 14.

(16) 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.

(17) (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 (i) substantially jeopardized the safety and soundness

of a financial institution; or (ii) substantially endangered the solvency or financial security of an organization that, at any time

during the offense, (I) was a publicly traded company; or (II) had

1,000 or more employees, increase by 4 levels.

(C) The cumulative adjustments from application of both subsections (b)(2) and (b)(17)(B) shall not exceed 8 levels, except as provided in subparagraph (D).

(D) If the resulting offense level determined under subparagraph (A)

or (B) is less than level 24, increase to level 24.

(18) If (A) the defendant was convicted of an offense under 18 U.S.C.

§ 1030, and the offense involved an intent to obtain personal information, or (B) the offense involved the unauthorized public dissemination of personal information, increase by 2 levels.

(19) (A) (Apply the greatest) If the defendant was convicted of an offense

under:

(i) 18 U.S.C. § 1030, and the offense involved a computer system used to maintain or operate a critical infrastructure, or

used by or for a government entity in furtherance of the administration of justice, national defense, or national security, increase by 2 levels.

(ii) 18 U.S.C. § 1030(a)(5)(A), increase by 4 levels.

(iii) 18 U.S.C. § 1030, and the offense caused a substantial disruption of a critical infrastructure, increase by 6 levels.

(B) If subparagraph (A)(iii) applies, and the offense level is less than

level 24, increase to level 24.

(20) If the offense involved—

(A) a violation of securities law and, at the time of the offense, the

defendant was (i) an officer or a director of a publicly traded company; (ii) a registered broker or dealer, or a person associated

with a broker or dealer; or (iii) an investment adviser, or a person

associated with an investment adviser; or

(B) a violation of commodities law and, at the time of the offense, the

defendant was (i) an officer or a director of a futures commission

merchant or an introducing broker; (ii) a commodities trading advisor; or (iii) a commodity pool operator,

increase by 4 levels.

(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 paragraph (1) nor (2) of this subsection applies; (B) the

defendant was convicted under a statute proscribing false, fictitious,

or fraudulent statements or representations generally (e.g., 18 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 or a paleontological

resource, apply §2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources or Paleontological Resources; Unlawful

Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources or Paleontological Resources), if the resulting offense

level is greater than that determined above.

Commentary

Statutory Provisions: 5 U.S.C. §§ 8345a, 8466a; 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, 220, 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, 1037, 1040, 1341–1344, 1348, 1350, 1361, 1363, 1369, 1702, 1703 (if vandalism

or malicious mischief, including destruction of mail, is involved), 1708, 1831, 1832, 1992(a)(1), (a)(5),

2113(b), 2282A, 2282B, 2291, 2312–2317, 2332b(a)(1), 2701; 19 U.S.C. § 2401f; 20 U.S.C. § 1097(a),

(b), (d), (e); 29 U.S.C. § 501(c); 42 U.S.C. § 1011; 49 U.S.C. §§ 14915, 30170, 46317(a), 60123(b). For

additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

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 or

Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of

Cultural Heritage Resources or Paleontological Resources).

“Equity security” has the meaning given that term in section 3(a)(11) of the Securities Exchange

Act of 1934 (15 U.S.C. § 78c(a)(11)).

“Federal health care offense” has the meaning given that term in 18 U.S.C. § 24.

“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).

“Foreign instrumentality” and “foreign agent” have the meaning given those terms in

18 U.S.C. § 1839(1) and (2), respectively.

“Government health care program” means any plan or program that provides health benefits,

whether directly, through insurance, or otherwise, which is funded directly, in whole or in part,

by federal or state government. Examples of such programs are the Medicare program, the Medicaid program, and the CHIP program.

“Means of identification” has the meaning given that term in 18 U.S.C. § 1028(d)(7), 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

Conduct).

“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.

“Paleontological 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 or Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources or Paleontological Resources).

“Personal information” means sensitive or private information involving an identifiable individual (including such information in the possession of a third party), including (A) medical records; (B) wills; (C) diaries; (D) private correspondence, including e-mail; (E) financial records;

(F) photographs of a sensitive or private nature; or (G) similar information.

“Pre-retail medical product” has the meaning given that term in 18 U.S.C. § 670(e).

“Publicly traded company” means an issuer (A) with a class of securities registered under

section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 78l); or (B) that is required to file

reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78o(d)). “Issuer”

has the meaning given that term in section 3 of the Securities Exchange Act of 1934 (15 U.S.C.

§ 78c).

“Supply chain” has the meaning given that term in 18 U.S.C. § 670(e).

“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.

“Trade secret” has the meaning given that term in 18 U.S.C. § 1839(3).

“Veterans’ memorial” means any structure, plaque, statue, or other monument described in

18 U.S.C. § 1369(a).

“Victim” means (A) any person who sustained any part of the actual loss determined under subsection (b)(1); or (B) 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.

2. Application of Subsection (a)(1).—

(A) “Referenced to this Guideline”.—For purposes of subsection (a)(1), an offense is “referenced to this guideline” if (i) this guideline is the applicable Chapter Two guideline specifically referenced in Appendix A (Statutory Index) for the offense of conviction, as determined under the provisions of §1B1.2 (Applicable Guidelines); or (ii) in the case of a conviction for conspiracy, solicitation, or attempt to which §2X1.1 (Attempt, Solicitation, or Conspiracy) applies, this guideline is the appropriate guideline for the offense the defendant

was convicted of conspiring, soliciting, or attempting to commit.

(B) Definition of “Statutory Maximum Term of Imprisonment”.—For purposes of this

guideline, “statutory maximum term of imprisonment” means the maximum term of

imprisonment authorized for the offense of conviction, including any increase in that maximum term under a statutory enhancement provision.

(C) Base Offense Level Determination for Cases Involving Multiple Counts.—In a case

involving multiple counts sentenced under this guideline, the applicable base offense level

is determined by the count of conviction that provides the highest statutory maximum term

of imprisonment.

3. Loss Under Subsection (b)(1).—This application note applies to the determination of loss under subsection (b)(1).

(A) Rules of Construction in Certain Cases.—In the cases described in clauses (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) Offenses Under 18 U.S.C. § 1030.—In the case of an offense under 18 U.S.C. § 1030,

actual loss includes the following pecuniary harm, regardless of whether such pecuniary harm was reasonably foreseeable: any reasonable cost to any victim, including

the cost of responding to an offense, conducting a damage assessment, and restoring

the data, program, system, or information to its condition prior to the offense, and any

revenue lost, cost incurred, or other damages incurred because of interruption of service.

(B) 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. See 18 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, copied, 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) In the case of proprietary information (e.g., trade secrets), the cost of developing that

information or the reduction in the value of that information that resulted from the

offense.

(iii) The cost of repairs to damaged property.

(iv) The approximate number of victims multiplied by the average loss to each victim.

(v) The reduction that resulted from the offense in the value of equity securities or other

corporate assets.

(vi) More general factors, such as the scope and duration of the offense and revenues generated by similar operations.

(C) Exclusions from Loss.—Loss shall not include the following:

(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.

(D) 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.

(iii) Notwithstanding clause (ii), in the case of a fraud involving a mortgage loan, if the

collateral has not been disposed of by the time of sentencing, use the fair market value

of the collateral as of the date on which the guilt of the defendant has been established,

whether by guilty plea, trial, or plea of nolo contendere.

In such a case, there shall be a rebuttable presumption that the most recent tax assessment value of the collateral is a reasonable estimate of the fair market value. In

determining whether the most recent tax assessment value is a reasonable estimate

of the fair market value, the court may consider, among other factors, the recency of

the tax assessment and the extent to which the jurisdiction’s tax assessment practices

reflect factors not relevant to fair market value.

(E) Special Rules.—Notwithstanding subparagraph (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 clause,

“counterfeit access device” and “unauthorized access device” have the meaning

given those terms in Application Note 10(A).

(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. § 3142, 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 the scheme).

(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 or Paleontological Resources.—In a

case involving a cultural heritage resource or paleontological resource, loss attributable to that resource shall be determined in accordance with the rules for determining

the “value of the resource” set forth in Application Note 2 of the Commentary to

§2B1.5.

(viii) Federal Health Care Offenses Involving Government Health Care Programs.—In a case in which the defendant is convicted of a federal health care offense

involving a government health care program, the aggregate dollar amount of fraudulent bills submitted to the government health care program shall constitute prima

facie evidence of the amount of the intended loss, i.e., is evidence sufficient to establish

the amount of the intended loss, if not rebutted.

(ix) Fraudulent Inflation or Deflation in Value of Securities or Commodities.—

In a case involving the fraudulent inflation or deflation in the value of a publicly

traded security or commodity, the court in determining loss may use any method that

is appropriate and practicable under the circumstances. One such method the court

may consider is a method under which the actual loss attributable to the change in

value of the security or commodity is the amount determined by—

(I) calculating the difference between the average price of the security or commodity

during the period that the fraud occurred and the average price of the security

or commodity during the 90-day period after the fraud was disclosed to the market, and

(II) multiplying the difference in average price by the number of shares outstanding.

In determining whether the amount so determined is a reasonable estimate of the

actual loss attributable to the change in value of the security or commodity, the court

may consider, among other factors, the extent to which the amount so determined

includes significant changes in value not resulting from the offense (e.g., changes

caused by external market forces, such as changed economic circumstances, changed

investor expectations, and new industry-specific or firm-specific facts, conditions, or

events).

4. Application of Subsection (b)(2).—

(A) Definition.—For purposes of subsection (b)(2), “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.

(B) Applicability to Transmission of Multiple Commercial Electronic Mail Messages.—For purposes of subsection (b)(2), an offense under 18 U.S.C. § 1037, or any other

offense involving conduct described in 18 U.S.C. § 1037, shall be considered to have been

committed through mass-marketing. Accordingly, the defendant shall receive at least a

two-level enhancement under subsection (b)(2) and may, depending on the facts of the case,

receive a greater enhancement under such subsection, if the defendant was convicted under, or the offense involved conduct described in, 18 U.S.C. § 1037.

(C) 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 (I) any victim as defined in Application Note 1;

or (II) any person who was the intended recipient, or addressee, of the undelivered

United States mail.

(ii) Special Rule.—A case described in subparagraph (C)(i) of this note that involved—

(I) a United States Postal Service relay box, collection box, delivery vehicle, satchel,

or cart, shall be considered to have involved at least 10 victims.

(II) a housing unit cluster box or any similar receptacle that contains multiple mailboxes, whether such receptacle is owned by the United States Postal Service or

otherwise owned, shall, unless proven otherwise, be presumed to have involved

the number of victims corresponding to the number of mailboxes in each cluster

box or similar receptacle.

(iii) Definition.—“Undelivered United States mail” means mail that has not actually

been received by the addressee or the addressee’s agent (e.g., mail taken from the

addressee’s mail box).

(D) Vulnerable Victims.—If subsection (b)(2)(B) or (C) applies, an enhancement under

§3A1.1(b)(2) shall not apply.

(E) Cases Involving Means of Identification.—For purposes of subsection (b)(2), in a case

involving means of identification “victim” means (i) any victim as defined in Application

Note 1; or (ii) any individual whose means of identification was used unlawfully or without

authority.

(F) Substantial Financial Hardship.—In determining whether the offense resulted in substantial financial hardship to a victim, the court shall consider, among other factors,

whether the offense resulted in the victim—

(i) becoming insolvent;

(ii) filing for bankruptcy under the Bankruptcy Code (title 11, United States Code);

(iii) suffering substantial loss of a retirement, education, or other savings or investment

fund;

(iv) making substantial changes to his or her employment, such as postponing his or her

retirement plans;

(v) making substantial changes to his or her living arrangements, such as relocating to a

less expensive home; and

(vi) suffering substantial harm to his or her ability to obtain credit.

5. 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 defendant’s activities.

(B) The value and size of the inventory of stolen property maintained by the defendant.

(C) The extent to which the defendant’s activities encouraged or facilitated other crimes.

(D) The defendant’s past activities involving stolen property.

6. Application of Subsection (b)(6).—For purposes of subsection (b)(6), “improper means” includes the unauthorized harvesting of electronic mail addresses of users of a website, proprietary

service, or other online public forum.

7. Application of Subsection (b)(8)(B).—If subsection (b)(8)(B) applies, do not apply an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

8. Application of Subsection (b)(9).—

(A) In General.—The adjustments in subsection (b)(9) are alternative rather than cumulative.

(B) Misrepresentations Regarding Charitable and Other Institutions.—Subsection (b)(9)(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)(9)(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 school.

(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)(9)(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 §3C1.3 (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)(9)(D):

“Financial assistance” means any scholarship, grant, loan, tuition, discount, award, or

other financial assistance for the purpose of financing an education.

“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 Chapter Three Adjustments.—

(i) Subsection (b)(9)(A).—If the conduct that forms the basis for an enhancement under subsection (b)(9)(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)(9)(B) and (C).—If the conduct that forms the basis for an enhancement under subsection (b)(9)(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.

9. Application of Subsection (b)(10).—

(A) Definition of United States.—For purposes of subsection (b)(10)(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 under Subsection (b)(10)(C).—For purposes of

subsection (b)(10)(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 means.

(C) Non-Applicability of Chapter Three Adjustment.—If the conduct that forms the basis

for an enhancement under subsection (b)(10) is the only conduct that forms the basis for an

adjustment under §3C1.1, do not apply that adjustment under §3C1.1.

10. Application of Subsection (b)(11).—

(A) Definitions.—For purposes of subsection (b)(11):

“Authentication feature” has the meaning given that term in 18 U.S.C. § 1028(d)(1).

“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.

“Device-making equipment” (i) has the meaning given that term in 18 U.S.C.

§ 1029(e)(6); and (ii) includes (I) any hardware or software that has been configured as described in 18 U.S.C. § 1029(a)(9); and (II) a scanning receiver referred to in 18 U.S.C.

§ 1029(a)(8). “Scanning receiver” has the meaning given that term in 18 U.S.C. § 1029(e)(8).

“Produce” includes manufacture, design, alter, authenticate, duplicate, or assemble. “Production” includes manufacture, design, alteration, authentication, duplication, or assembly.

“Telecommunications service” has the meaning given that term in 18 U.S.C.

§ 1029(e)(9).

“Unauthorized access device” has the meaning given that term in 18 U.S.C. § 1029(e)(3).

(B) Authentication Features and Identification Documents.—Offenses involving authentication features, identification documents, false identification documents, and means

of identification, in violation of 18 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)(11)(C)(i).—

(i) In General.—Subsection (b)(11)(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)(11)(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 unlawfully.

(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 unlawfully.

(iii) Non-Applicability of Subsection (b)(11)(C)(i).—Examples of conduct to which

subsection (b)(11)(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)(11)(C)(ii).—Subsection (b)(11)(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.

11. Interaction of Subsection (b)(13) and §3B1.3 (Abuse of Position of Trust or Use of Special Skill).—If subsection (b)(13) applies, do not apply §3B1.3.

12. Application of Subsection (b)(15).—Subsection (b)(15) provides a minimum offense level in

the case of an ongoing, sophisticated operation (e.g., an auto theft ring or “chop shop”) to steal or

to receive stolen (A) vehicles or vehicle parts; or (B) goods or chattels that are part of a cargo

shipment. For purposes of this subsection, “vehicle” means motor vehicle, vessel, or aircraft. A

“cargo shipment” includes cargo transported on a railroad car, bus, steamboat, vessel, or airplane.

13. Gross Receipts Enhancement under Subsection (b)(17)(A).—

(A) In General.—For purposes of subsection (b)(17)(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, exceeded $1,000,000.

(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).

14. Application of Subsection (b)(17)(B).—

(A) Application of Subsection (b)(17)(B)(i).—The following is a non-exhaustive list of factors that the court shall consider in determining whether, as a result of the offense, the

safety and soundness of a financial institution was substantially jeopardized:

(i) The financial institution became insolvent.

(ii) The financial institution substantially reduced benefits to pensioners or insureds.

(iii) The financial institution was unable on demand to refund fully any deposit, payment,

or investment.

(iv) The financial institution was so depleted of its assets as to be forced to merge with

another institution in order to continue active operations.

(v) One or more of the criteria in clauses (i) through (iv) was likely to result from the

offense but did not result from the offense because of federal government intervention,

such as a “bailout”.

(B) Application of Subsection (b)(17)(B)(ii).—

(i) Definition.—For purposes of this subsection, “organization” has the meaning given

that term in Application Note 1 of §8A1.1 (Applicability of Chapter Eight).

(ii) In General.—The following is a non-exhaustive list of factors that the court shall

consider in determining whether, as a result of the offense, the solvency or financial

security of an organization that was a publicly traded company or that had more than

1,000 employees was substantially endangered:

(I) The organization became insolvent or suffered a substantial reduction in the

value of its assets.

(II) The organization filed for bankruptcy under Chapters 7, 11, or 13 of the Bankruptcy Code (title 11, United States Code).

(III) The organization suffered a substantial reduction in the value of its equity securities or the value of its employee retirement accounts.

(IV) The organization substantially reduced its workforce.

(V) The organization substantially reduced its employee pension benefits.

(VI) The liquidity of the equity securities of a publicly traded company was substantially endangered. For example, the company was delisted from its primary listing exchange, or trading of the company’s securities was halted for more than

one full trading day.

(VII) One or more of the criteria in subclauses (I) through (VI) was likely to result

from the offense but did not result from the offense because of federal government intervention, such as a “bailout”.

15. Application of Subsection (b)(19).—

(A) Definitions.—For purposes of subsection (b)(19):

“Critical infrastructure” means systems and assets vital to national defense, national

security, economic security, public health or safety, or any combination of those matters. A

critical infrastructure may be publicly or privately owned. Examples of critical infrastructures include gas and oil production, storage, and delivery systems, water supply systems,

telecommunications networks, electrical power delivery systems, financing and banking

systems, emergency services (including medical, police, fire, and rescue services), transportation systems and services (including highways, mass transit, airlines, and airports), and

government operations that provide essential services to the public.

“Government entity” has the meaning given that term in 18 U.S.C. § 1030(e)(9).

(B) Subsection (b)(19)(A)(iii).—If the same conduct that forms the basis for an enhancement

under subsection (b)(19)(A)(iii) is the only conduct that forms the basis for an enhancement

under subsection (b)(17)(B), do not apply the enhancement under subsection (b)(17)(B).

16. Application of Subsection (b)(20).—

(A) Definitions.—For purposes of subsection (b)(20):

“Commodities law” means (i) the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and

18 U.S.C. § 1348; and (ii) includes the rules, regulations, and orders issued by the Commodity Futures Trading Commission.

“Commodity pool operator” has the meaning given that term in section 1a(11) of the

Commodity Exchange Act (7 U.S.C. § 1a(11)).

“Commodity trading advisor” has the meaning given that term in section 1a(12) of the

Commodity Exchange Act (7 U.S.C. § 1a(12)).

“Futures commission merchant” has the meaning given that term in section 1a(28) of

the Commodity Exchange Act (7 U.S.C. § 1a(28)).

“Introducing broker” has the meaning given that term in section 1a(31) of the Commodity

Exchange Act (7 U.S.C. § 1a(31)).

“Investment adviser” has the meaning given that term in section 202(a)(11) of the Investment Advisers Act of 1940 (15 U.S.C. § 80b-2(a)(11)).

“Person associated with a broker or dealer” has the meaning given that term in section 3(a)(18) of the Securities Exchange Act of 1934 (15 U.S.C. § 78c(a)(18)).

“Person associated with an investment adviser” has the meaning given that term in

section 202(a)(17) of the Investment Advisers Act of 1940 (15 U.S.C. § 80b-2(a)(17)).

“Registered broker or dealer” has the meaning given that term in section 3(a)(48) of the

Securities Exchange Act of 1934 (15 U.S.C. § 78c(a)(48)).

“Securities law” (i) means 18 U.S.C. §§ 1348, 1350, and the provisions of law referred to

in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C. § 78c(a)(47)); and (ii) includes the rules, regulations, and orders issued by the Securities and Exchange Commission pursuant to the provisions of law referred to in such section.

(B) In General.—A conviction under a securities law or commodities law is not required in

order for subsection (b)(20) to apply. This subsection would apply in the case of a defendant

convicted under a general fraud statute if the defendant’s conduct violated a securities law

or commodities law. For example, this subsection would apply if an officer of a publicly

traded company violated regulations issued by the Securities and Exchange Commission

by fraudulently influencing an independent audit of the company’s financial statements for

the purposes of rendering such financial statements materially misleading, even if the officer is convicted only of wire fraud.

(C) Nonapplicability of §3B1.3 (Abuse of Position of Trust or Use of Special Skill).—If

subsection (b)(20) applies, do not apply §3B1.3.

17. 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 involving fraudulent

conduct that is 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 involves fraudulent conduct that 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. For example, a state employee who improperly influenced the award of a contract and used the mails to commit the offense may be prosecuted under

18 U.S.C. § 1341 for fraud involving the deprivation of the intangible right of honest services.

Such a case would be more aptly sentenced pursuant to §2C1.1 (Offering, Giving, Soliciting, or

Receiving a Bribe; Extortion Under Color of Official Right; Fraud involving the Deprivation of

the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference

with Governmental Functions).

18. 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 crimes enterprise”.

19. 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.

20. 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).

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).

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 guideline.

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)(5) implements the instruction to the Commission in section 2 of Public Law 105–

101 and the directive to the Commission in section 3 of Public Law 110–384.

Subsection (b)(7) implements the directive to the Commission in section 10606 of Public

Law 111–148.

Subsection (b)(8) implements the directive to the Commission in section 7 of Public Law 112–186.

Subsection (b)(9)(D) implements, in a broader form, the directive in section 3 of the College Scholarship Fraud Prevention Act of 2000, Public Law 106–420.

Subsection (b)(10) implements, in a broader form, the instruction to the Commission in section 6(c)(2) of Public Law 105–184.

Subsections (b)(11)(A)(i) and (B)(i) implement the instruction to the Commission in section 4 of

the Wireless Telephone Protection Act, Public Law 105–172.

Subsection (b)(11)(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.

Subsection (b)(12) implements the directive in section 5 of Public Law 110–179.

Subsection (b)(14) implements the directive in section 3 of Public Law 112–269.

Subsection (b)(16)(B) implements, in a broader form, the instruction to the Commission in section 110512 of Public Law 103–322.

Subsection (b)(17)(A) implements, in a broader form, the instruction to the Commission in section 2507 of Public Law 101–647.

Subsection (b)(17)(B)(i) implements, in a broader form, the instruction to the Commission in section 961(m) of Public Law 101–73.

Subsection (b)(18) implements the directive in section 209 of Public Law 110–326.

Subsection (b)(19) implements the directive in section 225(b) of Public Law 107–296. The minimum offense level of level 24 provided in subsection (b)(19)(B) for an offense that resulted in a substantial disruption of a critical infrastructure reflects the serious impact such an offense could have

on national security, national economic security, national public health or safety, or a combination of

any of these matters.