U.S.S.G. §8C2.5

(a) Start with 5 points and apply subsections (b) through (g) below.

(b) INVOLVEMENT IN OR TOLERANCE OF CRIMINAL ACTIVITY

If more than one applies, use the greatest:

(1) If—

(A) the organization had 5,000 or more employees and

(i) an individual within high-level personnel of the organization participated in, condoned, or was willfully ignorant of

the offense; or

(ii) tolerance of the offense by substantial authority personnel

was pervasive throughout the organization; or

(B) the unit of the organization within which the offense was committed had 5,000 or more employees and

(i) an individual within high-level personnel of the unit participated in, condoned, or was willfully ignorant of the offense;

or

(ii) tolerance of the offense by substantial authority personnel

was pervasive throughout such unit,

add 5 points; or

(2) If—

(A) the organization had 1,000 or more employees and

(i) an individual within high-level personnel of the organization participated in, condoned, or was willfully ignorant of

the offense; or

(ii) tolerance of the offense by substantial authority personnel

was pervasive throughout the organization; or

(B) the unit of the organization within which the offense was committed had 1,000 or more employees and

(i) an individual within high-level personnel of the unit participated in, condoned, or was willfully ignorant of the offense;

or

(ii) tolerance of the offense by substantial authority personnel

was pervasive throughout such unit,

add 4 points; or

(3) If—

(A) the organization had 200 or more employees and

(i) an individual within high-level personnel of the organization participated in, condoned, or was willfully ignorant of

the offense; or

(ii) tolerance of the offense by substantial authority personnel

was pervasive throughout the organization; or

(B) the unit of the organization within which the offense was committed had 200 or more employees and

(i) an individual within high-level personnel of the unit participated in, condoned, or was willfully ignorant of the offense;

or

(ii) tolerance of the offense by substantial authority personnel

was pervasive throughout such unit,

add 3 points; or

(4) If the organization had 50 or more employees and an individual within

substantial authority personnel participated in, condoned, or was

willfully ignorant of the offense, add 2 points; or

(5) If the organization had 10 or more employees and an individual within

substantial authority personnel participated in, condoned, or was

willfully ignorant of the offense, add 1 point.

(c) PRIOR HISTORY

If more than one applies, use the greater:

(1) If the organization (or separately managed line of business) committed any part of the instant offense less than 10 years after (A) a criminal adjudication based on similar misconduct; or (B) civil or administrative adjudication(s) based on two or more separate instances of

similar misconduct, add 1 point; or

(2) If the organization (or separately managed line of business) committed any part of the instant offense less than 5 years after (A) a criminal adjudication based on similar misconduct; or (B) civil or administrative adjudication(s) based on two or more separate instances of

similar misconduct, add 2 points.

(d) VIOLATION OF AN ORDER

If more than one applies, use the greater:

(1) (A) If the commission of the instant offense violated a judicial order or

injunction, other than a violation of a condition of probation; or (B) if

the organization (or separately managed line of business) violated a

condition of probation by engaging in similar misconduct, i.e., misconduct similar to that for which it was placed on probation, add 2 points;

or

(2) If the commission of the instant offense violated a condition of probation, add 1 point.

(e) OBSTRUCTION OF JUSTICE

If the organization willfully obstructed or impeded, attempted to obstruct

or impede, or aided, abetted, or encouraged obstruction of justice during

the investigation, prosecution, or sentencing of the instant offense, or, with

knowledge thereof, failed to take reasonable steps to prevent such obstruction or impedance or attempted obstruction or impedance, add 3 points.

(f) EFFECTIVE COMPLIANCE AND ETHICS PROGRAM

(1) If the offense occurred even though the organization had in place at

the time of the offense an effective compliance and ethics program, as

provided in §8B2.1 (Effective Compliance and Ethics Program), subtract 3 points.

(2) Subsection (f)(1) shall not apply if, after becoming aware of an offense,

the organization unreasonably delayed reporting the offense to appropriate governmental authorities.

(3) (A) Except as provided in subparagraphs (B) and (C), subsection (f)(1) shall not apply if an individual within high-level personnel of the organization, a person within high-level personnel

of the unit of the organization within which the offense was committed where the unit had 200 or more employees, or an individual described in §8B2.1(b)(2)(B) or (C), participated in, condoned,

or was willfully ignorant of the offense.

(B) There is a rebuttable presumption, for purposes of subsection (f)(1), that the organization did not have an effective compliance and ethics program if an individual—

(i) within high-level personnel of a small organization; or

(ii) within substantial authority personnel, but not within high-level personnel, of any organization,

participated in, condoned, or was willfully ignorant of, the offense.

(C) Subparagraphs (A) and (B) shall not apply if—

(i) the individual or individuals with operational responsibility

for the compliance and ethics program (see §8B2.1(b)(2)(C))

have direct reporting obligations to the governing authority

or an appropriate subgroup thereof (e.g., an audit committee

of the board of directors);

(ii) the compliance and ethics program detected the offense before discovery outside the organization or before such discovery was reasonably likely;

(iii) the organization promptly reported the offense to appropriate governmental authorities; and

(iv) no individual with operational responsibility for the compliance and ethics program participated in, condoned, or was

willfully ignorant of the offense.

(g) SELF-REPORTING, COOPERATION, AND ACCEPTANCE OF RESPONSIBILITY

If more than one applies, use the greatest:

(1) If the organization (A) prior to an imminent threat of disclosure or

government investigation; and (B) within a reasonably prompt time

after becoming aware of the offense, reported the offense to appropriate governmental authorities, fully cooperated in the investigation,

and clearly demonstrated recognition and affirmative acceptance of

responsibility for its criminal conduct, subtract 5 points; or

(2) If the organization fully cooperated in the investigation and clearly

demonstrated recognition and affirmative acceptance of responsibility

for its criminal conduct, subtract 2 points; or

(3) If the organization clearly demonstrated recognition and affirmative

acceptance of responsibility for its criminal conduct, subtract 1 point.

Commentary

Application Notes:

1. Definitions.—For purposes of this guideline, “condoned”, “criminal adjudication”, “similar

misconduct”, “substantial authority personnel”, and “willfully ignorant of the offense”

have the meaning given those terms in Application Note 3 of the Commentary to §8A1.2 (Application Instructions ― Organizations).

“Small Organization”, for purposes of subsection (f)(3), means an organization that, at the time

of the instant offense, had fewer than 200 employees.

2. For purposes of subsection (b), “unit of the organization” means any reasonably distinct operational component of the organization. For example, a large organization may have several large

units such as divisions or subsidiaries, as well as many smaller units such as specialized manufacturing, marketing, or accounting operations within these larger units. For purposes of this

definition, all of these types of units are encompassed within the term “unit of the organization.”

3. “High-level personnel of the organization” is defined in the Commentary to §8A1.2 (Application Instructions ― Organizations). With respect to a unit with 200 or more employees, “high-level personnel of a unit of the organization” means agents within the unit who set the policy

for or control that unit. For example, if the managing agent of a unit with 200 employees participated in an offense, three points would be added under subsection (b)(3); if that organization

had 1,000 employees and the managing agent of the unit with 200 employees were also within

high-level personnel of the organization in its entirety, four points (rather than three) would be

added under subsection (b)(2).

4. Pervasiveness under subsection (b) will be case specific and depend on the number, and degree

of responsibility, of individuals within substantial authority personnel who participated in, condoned, or were willfully ignorant of the offense. Fewer individuals need to be involved for a finding of pervasiveness if those individuals exercised a relatively high degree of authority. Pervasiveness can occur either within an organization as a whole or within a unit of an organization.

For example, if an offense were committed in an organization with 1,000 employees but the tolerance of the offense was pervasive only within a unit of the organization with 200 employees

(and no high-level personnel of the organization participated in, condoned, or was willfully ignorant of the offense), three points would be added under subsection (b)(3). If, in the same organization, tolerance of the offense was pervasive throughout the organization as a whole, or an individual within high-level personnel of the organization participated in the offense, four points

(rather than three) would be added under subsection (b)(2).

5. A “separately managed line of business,” as used in subsections (c) and (d), is a subpart of a

for-profit organization that has its own management, has a high degree of autonomy from higher

managerial authority, and maintains its own separate books of account. Corporate subsidiaries

and divisions frequently are separately managed lines of business. Under subsection (c), in determining the prior history of an organization with separately managed lines of business, only

the prior conduct or criminal record of the separately managed line of business involved in the

instant offense is to be used. Under subsection (d), in the context of an organization with separately managed lines of business, in making the determination whether a violation of a condition

of probation involved engaging in similar misconduct, only the prior misconduct of the separately

managed line of business involved in the instant offense is to be considered.

6. Under subsection (c), in determining the prior history of an organization or separately managed

line of business, the conduct of the underlying economic entity shall be considered without regard

to its legal structure or ownership. For example, if two companies merged and became separate

divisions and separately managed lines of business within the merged company, each division

would retain the prior history of its predecessor company. If a company reorganized and became

a new legal entity, the new company would retain the prior history of the predecessor company.

In contrast, if one company purchased the physical assets but not the ongoing business of another

company, the prior history of the company selling the physical assets would not be transferred

to the company purchasing the assets. However, if an organization is acquired by another organization in response to solicitations by appropriate federal government officials, the prior history

of the acquired organization shall not be attributed to the acquiring organization.

7. Under subsections (c)(1)(B) and (c)(2)(B), the civil or administrative adjudication(s) must have

occurred within the specified period (ten or five years) of the instant offense.

8. Adjust the culpability score for the factors listed in subsection (e) whether or not the offense

guideline incorporates that factor, or that factor is inherent in the offense.

9. Subsection (e) applies where the obstruction is committed on behalf of the organization; it does

not apply where an individual or individuals have attempted to conceal their misconduct from

the organization. The Commentary to §3C1.1 (Obstructing or Impeding the Administration of

Justice) provides guidance regarding the types of conduct that constitute obstruction.

10. Subsection (f)(2) contemplates that the organization will be allowed a reasonable period of time

to conduct an internal investigation. In addition, no reporting is required by subsection (f)(2)

or (f)(3)(C)(iii) if the organization reasonably concluded, based on the information then available,

that no offense had been committed.

11. For purposes of subsection (f)(3)(C)(i), an individual has “direct reporting obligations” to the

governing authority or an appropriate subgroup thereof if the individual has express authority

to communicate personally to the governing authority or appropriate subgroup thereof

(A) promptly on any matter involving criminal conduct or potential criminal conduct, and (B) no

less than annually on the implementation and effectiveness of the compliance and ethics program.

12. “Appropriate governmental authorities,” as used in subsections (f) and (g)(1), means the federal or state law enforcement, regulatory, or program officials having jurisdiction over such matter. To qualify for a reduction under subsection (g)(1), the report to appropriate governmental

authorities must be made under the direction of the organization.

13. To qualify for a reduction under subsection (g)(1) or (g)(2), cooperation must be both timely and

thorough. To be timely, the cooperation must begin essentially at the same time as the organization is officially notified of a criminal investigation. To be thorough, the cooperation should include the disclosure of all pertinent information known by the organization. A prime test of

whether the organization has disclosed all pertinent information is whether the information is

sufficient for law enforcement personnel to identify the nature and extent of the offense and the

individual(s) responsible for the criminal conduct. However, the cooperation to be measured is

the cooperation of the organization itself, not the cooperation of individuals within the organization. If, because of the lack of cooperation of particular individual(s), neither the organization nor

law enforcement personnel are able to identify the culpable individual(s) within the organization

despite the organization’s efforts to cooperate fully, the organization may still be given credit for

full cooperation.

14. Entry of a plea of guilty prior to the commencement of trial combined with truthful admission of

involvement in the offense and related conduct ordinarily will constitute significant evidence of

affirmative acceptance of responsibility under subsection (g), unless outweighed by conduct of

the organization that is inconsistent with such acceptance of responsibility. This adjustment is

not intended to apply to an organization that puts the government to its burden of proof at trial

by denying the essential factual elements of guilt, is convicted, and only then admits guilt and

expresses remorse. Conviction by trial, however, does not automatically preclude an organization

from consideration for such a reduction. In rare situations, an organization may clearly demonstrate an acceptance of responsibility for its criminal conduct even though it exercises its constitutional right to a trial. This may occur, for example, where an organization goes to trial to assert

and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to

a statute or a challenge to the applicability of a statute to its conduct). In each such instance,

however, a determination that an organization has accepted responsibility will be based primarily upon pretrial statements and conduct.

15. In making a determination with respect to subsection (g), the court may determine that the chief

executive officer or highest ranking employee of an organization should appear at sentencing in

order to signify that the organization has clearly demonstrated recognition and affirmative acceptance of responsibility.

Background: The increased culpability scores under subsection (b) are based on three interrelated

principles. First, an organization is more culpable when individuals who manage the organization or

who have substantial discretion in acting for the organization participate in, condone, or are willfully

ignorant of criminal conduct. Second, as organizations become larger and their managements become

more professional, participation in, condonation of, or willful ignorance of criminal conduct by such

management is increasingly a breach of trust or abuse of position. Third, as organizations increase in

size, the risk of criminal conduct beyond that reflected in the instant offense also increases whenever

management’s tolerance of that offense is pervasive. Because of the continuum of sizes of organizations

and professionalization of management, subsection (b) gradually increases the culpability score based

upon the size of the organization and the level and extent of the substantial authority personnel involvement.