U.S.S.G. §8A1.2

(a) Determine from Part B, Subpart 1 (Remedying Harm from Criminal Conduct) the sentencing requirements and options relating to restitution, remedial orders, community service, and notice to victims.

(b) Determine from Part C (Fines) the sentencing requirements and options

relating to fines:

(1) If the organization operated primarily for a criminal purpose or primarily by criminal means, apply §8C1.1 (Determining the Fine ―

Criminal Purpose Organizations).

(2) Otherwise, apply §8C2.1 (Applicability of Fine Guidelines) to identify

the counts for which the provisions of §§8C2.2 through 8C2.9 apply.

For such counts:

(A) Refer to §8C2.2 (Preliminary Determination of Inability to Pay

Fine) to determine whether an abbreviated determination of the

guideline fine range may be warranted.

(B) Apply §8C2.3 (Offense Level) to determine the offense level from

Chapter Two (Offense Conduct) and Chapter Three, Part D (Multiple Counts).

(C) Apply §8C2.4 (Base Fine) to determine the base fine.

(D) Apply §8C2.5 (Culpability Score) to determine the culpability

score. To determine whether the organization had an effective

compliance and ethics program for purposes of §8C2.5(f), apply

§8B2.1 (Effective Compliance and Ethics Program).

(E) Apply §8C2.6 (Minimum and Maximum Multipliers) to determine the minimum and maximum multipliers corresponding to

the culpability score.

(F) Apply §8C2.7 (Guideline Fine Range ― Organizations) to determine the minimum and maximum of the guideline fine range.

(G) Refer to §8C2.8 (Determining the Fine Within the Range) to determine the amount of the fine within the applicable guideline

range.

(H) Apply §8C2.9 (Disgorgement) to determine whether an increase

to the fine is required.

For any count or counts not covered under §8C2.1 (Applicability of

Fine Guidelines), apply §8C2.10 (Determining the Fine for Other

Counts).

(3) Apply the provisions relating to the implementation of the sentence of

a fine in Part C, Subpart 3 (Implementing the Sentence of a Fine).

(4) Determine whether a sentence below the otherwise applicable guideline range is appropriate upon motion of the government pursuant to

§8C4.1 (Substantial Assistance to Authorities ― Organizations (Policy

Statement)).

(5) Consider as a whole the additional factors identified in 18 U.S.C.

§ 3553(a) to determine the sentence that is sufficient, but not greater

than necessary, to comply with the purposes set forth in 18 U.S.C.

§ 3553(a)(2). See 18 U.S.C. § 3553(a).

(c) Determine from Part D (Organizational Probation) the sentencing requirements and options relating to probation.

(d) Determine from Part E (Special Assessments, Forfeitures, and Costs) the

sentencing requirements relating to special assessments, forfeitures, and

costs.

Commentary

Application Notes:

1. Determinations under this chapter are to be based upon the facts and information specified in

the applicable guideline. Determinations that reference other chapters are to be made under the

standards applicable to determinations under those chapters.

2. The definitions in the Commentary to §1B1.1 (Application Instructions) and the guidelines and

commentary in §§1B1.2 through 1B1.8 apply to determinations under this chapter unless otherwise specified. The adjustments in Chapter Three, Parts A (Victim-Related Adjustments), B (Role

in the Offense), C (Obstruction and Related Adjustments), E (Acceptance of Responsibility),

and F (Early Disposition Programs) do not apply. The provisions of Chapter Six (Sentencing Procedures, Plea Agreements, and Crime Victims’ Rights) apply to proceedings in which the defendant is an organization. Guidelines and policy statements not referenced in this chapter, directly

or indirectly, do not apply when the defendant is an organization; e.g., the policy statements in

Chapter Seven (Violations of Probation and Supervised Release) do not apply to organizations.

3. The following are definitions of terms used frequently in this chapter:

(A) “Offense” means the offense of conviction and all relevant conduct under §1B1.3 (Relevant

Conduct) unless a different meaning is specified or is otherwise clear from the context. The

term “instant” is used in connection with “offense,” “federal offense,” or “offense of conviction,” as the case may be, to distinguish the violation for which the defendant is being sentenced from a prior or subsequent offense, or from an offense before another court (e.g., an

offense before a state court involving the same underlying conduct).

(B) “High-level personnel of the organization” means individuals who have substantial

control over the organization or who have a substantial role in the making of policy within

the organization. The term includes: a director; an executive officer; an individual in charge

of a major business or functional unit of the organization, such as sales, administration, or

finance; and an individual with a substantial ownership interest. “High-level personnel

of a unit of the organization” is defined in the Commentary to §8C2.5 (Culpability

Score).

(C) “Substantial authority personnel” means individuals who within the scope of their authority exercise a substantial measure of discretion in acting on behalf of an organization.

The term includes high-level personnel of the organization, individuals who exercise substantial supervisory authority (e.g., a plant manager, a sales manager), and any other individuals who, although not a part of an organization’s management, nevertheless exercise

substantial discretion when acting within the scope of their authority (e.g., an individual

with authority in an organization to negotiate or set price levels or an individual authorized

to negotiate or approve significant contracts). Whether an individual falls within this category must be determined on a case-by-case basis.

(D) “Agent” means any individual, including a director, an officer, an employee, or an independent contractor, authorized to act on behalf of the organization.

(E) An individual “condoned” an offense if the individual knew of the offense and did not take

reasonable steps to prevent or terminate the offense.

(F) “Similar misconduct” means prior conduct that is similar in nature to the conduct underlying the instant offense, without regard to whether or not such conduct violated the same

statutory provision. For example, prior Medicare fraud would be misconduct similar to an

instant offense involving another type of fraud.

(G) “Criminal adjudication” means conviction by trial, plea of guilty (including an Alford

plea), or plea of nolo contendere.

(H) “Pecuniary gain” is derived from 18 U.S.C. § 3571(d) and means the additional before-tax

profit to the defendant resulting from the relevant conduct of the offense. Gain can result

from either additional revenue or cost savings. For example, an offense involving odometer

tampering can produce additional revenue. In such a case, the pecuniary gain is the additional revenue received because the automobiles appeared to have less mileage, i.e., the

difference between the price received or expected for the automobiles with the apparent

mileage and the fair market value of the automobiles with the actual mileage. An offense

involving defense procurement fraud related to defective product testing can produce pecuniary gain resulting from cost savings. In such a case, the pecuniary gain is the amount

saved because the product was not tested in the required manner.

(I) “Pecuniary loss” is derived from 18 U.S.C. § 3571(d) and is equivalent to the term “loss”

as used in Chapter Two (Offense Conduct). See §2B1.1 (Theft, Property Destruction, and

Fraud) and the Commentary to §2B1.1, and definitions of “tax loss” in Chapter Two, Part T

(Offenses Involving Taxation).

(J) An individual was “willfully ignorant of the offense” if the individual did not investigate

the possible occurrence of unlawful conduct despite knowledge of circumstances that would

lead a reasonable person to investigate whether unlawful conduct had occurred.