Criminal Law

Victim-Related Adjustments - Adjustments

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November 1, 2005GUIDELINES MANUAL§3A1.3

victims, its applicability is limited to assaultive conduct against such official victims that is sufficiently serious to create at least a "substantial risk of serious bodily injury".

(B) Definitions.—For purposes of subsection (c):

"Custody or control" includes "non-secure custody", i.e., custody with no significant physical restraint. For example, a defendant is in the custody or control of a prison or other correctional facility if the defendant (i) is on a work detail outside the security perimeter of the prison or correctional facility; (ii) is physically away from the prison or correctional facility while on a pass or furlough; or (iii) is in custody at a community corrections center, community treatment center, "halfway house", or similar facility. The defendant also shall be deemed to be in the custody or control of a prison or other correctional facility while the defendant is in the status of having escaped from that prison or correctional facility.

"Prison official" means any individual (including a director, officer, employee, independent contractor, or volunteer, but not including an inmate) authorized to act on behalf of a prison or correctional facility. For example, this enhancement would be applicable to any of the following: (i) an individual employed by a prison as a corrections officer; (ii) an individual employed by a prison as a work detail supervisor; and (iii) a nurse who, under contract, provides medical services to prisoners in a prison health facility.

"Substantial risk of serious bodily injury" includes any more serious injury that was risked, as well as actual serious bodily injury (or more serious injury) if it occurs.

5. Upward Departure Provision.—If the official victim is an exceptionally high-level official, such as the President or the Vice President of the United States, an upward departure may be warranted due to the potential disruption of the governmental function.

Historical Note:: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendment 44); November 1, 1989 (see Appendix C, amendments 246-248); November 1, 1992 (see Appendix C, amendment 455); November 1, 2002 (see Appendix C, amendment 643); November 1, 2004 (see Appendix C, amendment 663).

§3A1.3. Restraint of Victim

If a victim was physically restrained in the course of the offense, increase by 2 levels.


Application Notes:

1. "Physically restrained" is defined in the Commentary to §1B1.1 (Application Instructions).

2. Do not apply this adjustment where the offense guideline specifically incorporates this factor, or where the unlawful restraint of a victim is an element of the offense itself (e.g., this adjustment does not apply to offenses covered by §2A4.1 (Kidnapping, Abduction, Unlawful Restraint)).

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