Deleted departure provisions of §2A6.2. Stalking or Domestic Violence

Former §2A6.2, comment. (n.5) (Upward departure relating to enhancement not adequately reflecting extent or seriousness of the conduct): If the defendant received an enhancement under subsection (b)(1)[4] but that enhancement does not adequately reflect the extent or seriousness of the conduct involved, an upward departure may be warranted. For example, an upward departure may be warranted if the defendant stalked the victim on many occasions over a prolonged period of time. USSG §2A6.2(b)(1) (Nov. 2024) provided: If the offense involved one of the following aggravating factors: (A) the violation of a court protection order; (B) bodily injury; (C) strangling, suffocating, or attempting to strangle or suffocate; (D) possession, or threatened use, of a dangerous weapon; or (E) a pattern of activity involving stalking, threatening, harassing, or assaulting the same victim, increase by 2 levels. If the offense involved more than one of subdivisions (A), (B), (C), (D), or (E), increase by 4 levels. PART B ― BASIC ECONOMIC OFFENSES 1. Theft, Embezzlement, Receipt of Stolen Property, Property Destruction, and Offenses Involving Fraud or Deceit Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States Former §2B1.1, comment. (n.8(A)) (Upward departure relating to misrepresentations): The adjustments in subsection (b)(9)[5] are alternative rather than cumulative. If, in a particular case, however, more than one of the enumerated factors applied, an upward departure may be warranted. Former §2B1.1, comment. (n.21(A)) (Upward departure relating to the seriousness of the offense): There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. In such cases, an upward departure may be warranted. The following is a non-exhaustive list of factors that the court may consider in determining whether an upward departure is warranted: (i) A primary objective of the offense was an aggravating, non-monetary objective. For example, a primary objective of the offense was to inflict emotional harm. (ii) The offense caused or risked substantial non-monetary harm. For example, the offense caused physical harm, psychological harm, or severe emotional trauma, or resulted in a substantial invasion of a privacy interest (through, for example, the theft of personal information such as medical, educational, or financial records). An upward departure would be warranted, for example, in an 18 U.S.C. § 1030 [(Fraud and related activity in connection with computers)] offense involving damage to a protected computer, if, as a result of that offense, death resulted. An upward departure also would be warranted, for example, in a case involving animal enterprise terrorism under 18 U.S.C. § 43 [(Force, violence, and threats involving animal enterprises)], if, in the course of the offense, serious bodily injury or death resulted, or substantial scientific research or information were destroyed. Similarly, an upward departure would be warranted in a case involving conduct described in 18 U.S.C. § 670 [(Theft of medical products)] if the offense resulted in serious bodily injury or death, including serious bodily injury or death resulting from the use of the pre-retail medical product. USSG §2B1.1(b)(9) (Nov. 2024) provided: 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. (iii) The offense involved a substantial amount of interest of any kind, finance charges, late fees, penalties, amounts based on an agreed-upon return or rate of return, or other similar costs, not included in the determination of loss for purposes of [the loss table at] subsection (b)(1). (iv) The offense created a risk of substantial loss beyond the loss determined for purposes of [the loss table at] subsection (b)(1), such as a risk of a significant disruption of a national financial market. (v) In a case involving stolen information from a “protected computer”, as defined in 18 U.S.C. § 1030(e)(2), the defendant sought the stolen information to further a broader criminal purpose. (vi) In a case involving access devices or unlawfully produced or unlawfully obtained means of identification: (I) The offense caused substantial harm to the victim’s reputation, or the victim suffered a substantial inconvenience related to repairing the victim’s reputation. (II) An individual whose means of identification the defendant used to obtain unlawful means of identification is erroneously arrested or denied a job because an arrest record has been made in that individual’s name. (III) The defendant produced or obtained numerous means of identification with respect to one individual and essentially assumed that individual’s identity. Former §2B1.1, comment. (n.21(B)) (Upward departure for debilitating impact on a critical infrastructure): An upward departure would be warranted in a case in which subsection (b)(19)(A)(iii)[6] applies and the disruption to the critical infrastructure(s) is so substantial as to have a debilitating impact on national security, national economic security, national public health or safety, or any combination of those matters. Former §2B1.1, comment. (n.21(C)) (Downward departure relating to offense level substantially overstating seriousness of offense): USSG §2B1.1(b)(19) (Nov. 2024) provided: (A) (Apply the greatest) If the defendant was convicted of an offense under: (i) 18 U.S.C. § 1030 [(Fraud and related activity in connection with computers)], 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. There may be cases in which the offense level determined under this guideline substantially overstates the seriousness of the offense. In such cases, a downward departure may be warranted. For example, a securities fraud involving a fraudulent statement made publicly to the market may produce an aggregate loss amount that is substantial but diffuse, with relatively small loss amounts suffered by a relatively large number of victims. In such a case, the loss table in subsection (b)(1) and the victims table in subsection (b)(2) may combine to produce an offense level that substantially overstates the seriousness of the offense. If so, a downward departure may be warranted. Former §2B1.1, comment. (n.21(D)) (Downward departure for major disaster or emergency victims): If (i) the minimum offense level of level 12 in subsection (b)(12)[7] applies; (ii) the defendant sustained damage, loss, hardship, or suffering caused by a major disaster or an emergency as those terms are defined in 42 U.S.C. § 5122; and (iii) the benefits received illegally were only an extension or overpayment of benefits received legitimately, a downward departure may be warranted.