(a) Base Offense Level:
8(b) Specific Offense Characteristics
(1) If the greater of the value of the bribe or the improper benefit to be conferred (A) exceeded $2,500 but did not exceed $6,500, increase by 1 level; or (B) exceeded $6,500, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.
(2) (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 substantially jeopardized the safety and soundness of a financial institution, increase by 4 levels.
If the resulting offense level determined under subdivision (A) or (B) is less than level 24, increase to level 24.
(c) Special Instruction for Fines – Organizations
(1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.4 (Base Fine), use the greatest of: (A) the value of the unlawful payment; (B) the value of the benefit received or to be received in return for the unlawful payment; or (C) the consequential damages resulting from the unlawful payment.
Commentary
Statutory Provisions:
18 U.S.C. §§ 215, 220, 224, 225;
26 U.S.C. §§ 9012(e), 9042(d);
41 U.S.C. §§ 8702, 8707;
42 U.S.C. §§ 1395nn(b)(1), (2), 1396h(b)(1),(2);
49 U.S.C. § 11902. For additional statutory provision(s),
see Appendix A (Statutory Index).
Application Notes:
1. This guideline covers commercial bribery offenses and kickbacks that do not involve officials of federal, state, or local government, foreign governments, or public international organizations.
See Part C, Offenses Involving Public Officials, if any such officials are involved.
2. The "value of the improper benefit to be conferred" refers to the value of the action to be taken or effected in return for the bribe.
See Commentary 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).
3. "Financial institution," as used in this guideline, is defined to include any institution described in
18 U.S.C. §§ 20, 656, 657, 1005–1007, and 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," as used above, primarily include large pension funds that serve many individuals (
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.
4.
Gross Receipts Enhancement under Subsection (b)(2)(A).—
(A) In General.—For purposes of subsection (b)(2)(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).
5.
Enhancement for Substantially Jeopardizing the Safety and Soundness of a Financial Institution under Subsection (b)(2)(B).—For purposes of subsection (b)(2)(B), an offense shall be considered to have substantially jeopardized the safety and soundness of a financial institution if, as a consequence of the offense, the institution (A) became insolvent; (B) substantially reduced benefits to pensioners or insureds; (C) was unable on demand to refund fully any deposit, payment, or investment; (D) was so depleted of its assets as to be forced to merge with another institution in order to continue active operations; or (E) was placed in substantial jeopardy of any of subdivisions (A) through (D) of this note.
6. 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."
Background: This guideline applies to violations of various federal bribery statutes that do not involve governmental officials. The base offense level is to be enhanced based upon the value of the unlawful payment or the value of the action to be taken or effected in return for the unlawful payment, whichever is greater.
One of the more commonly prosecuted offenses to which this guideline applies is offering or accepting a fee in connection with procurement of a loan from a financial institution in violation of 18 U.S.C. § 215.
As with non-commercial bribery, this guideline considers not only the amount of the bribe but also the value of the action received in return. Thus, for example, if a bank officer agreed to the offer of a $25,000 bribe to approve a $250,000 loan under terms for which the applicant would not otherwise qualify, the court, in increasing the offense level, would use the greater of the $25,000 bribe, and the savings in interest over the life of the loan compared with alternative loan terms. If a gambler paid a player $5,000 to shave points in a nationally televised basketball game, the value of the action to the gambler would be the amount that he and his confederates won or stood to gain. If that amount could not be estimated, the amount of the bribe would be used to determine the appropriate increase in offense level.
This guideline also applies to making prohibited payments to induce the award of subcontracts on federal projects for which the maximum term of imprisonment authorized is ten years. 41 U.S.C. §§ 8702, 8707. Violations of 42 U.S.C. § 1320a-7b involve the offer or acceptance of a payment to refer an individual for services or items paid for under a federal health care program (e.g., the Medicare and Medicaid programs).
This guideline also applies to violations of law involving bribes and kickbacks in expenses incurred for a presidential nominating convention or presidential election campaign. These offenses are prohibited under 26 U.S.C. §§ 9012(e) and 9042(d), which apply to candidates for President and Vice President whose campaigns are eligible for federal matching funds.
This guideline also applies to violations of 18 U.S.C. § 224, sports bribery, as well as certain violations of the Interstate Commerce Act.
Subsection (b)(2)(A) implements, in a broader form, the instruction to the Commission in section 961(m) of Public Law 101–73.
Subsection (b)(2)(B) implements the instruction to the Commission in section 2507 of Public Law 101–647.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (amendment 317); November 1, 1991 (amendments 364 and 422); November 1, 1992 (amendment 468); November 1, 1997 (amendment 553); November 1, 2001 (amendment 617); November 1, 2002 (amendments 639 and 646); November 1, 2004 (amendment 666); November 1, 2010 (amendment 746); November 1, 2015 (amendments 791 and 796); November 1, 2023 (amendment 815).
* * * * *
5. COUNTERFEITING AND INFRINGEMENT OF COPYRIGHT OR TRADEMARK
Historical Note: Effective November 1, 1987. Amended effective November 1, 1993 (amendment 481).
Notes of Decisions
United States v. Valladares, 544 F.3d 1257 (11th Cir. 2008).
· cites it 8× “1 to determine her base offense level because, according to her, the government argued that the ultimate purpose of the conspiracy was to defraud the Medicare program.”
United States v. Zangari, 677 F.3d 86 (2d Cir. 2012).
· cites it 4× “In calculating Zangari’s adjusted offense level, the PSR included a six-level enhancement under USSG § 2B4.1, reflecting that the amount of loss to the victims of Zangari’s crime was more than $30,000 and less than $70,000.”
United States v. Ira Harvey Liss, 265 F.3d 1220 (11th Cir. 2001).
· cites it 4× “The PSI also assigned Liss and Spuza a base offense level of eight based on U.S.S.G. § 2B4.1, which is the guideline for fraud or deceit.”
United States v. Kim Ricard, 922 F.3d 639 (5th Cir. 2019).
· cites it 3× “As relates to her sentence, however, the district court committed error in calculating the improper benefit conferred under U.S.S.G. § 2B4.1 by failing to deduct the value of the services Progressive rendered from the total amount Progressive received from Medicare.”
United States v. Lebedev, 932 F.3d 40 (2d Cir. 2019).
· cites it 3× “Next, Gross contends that the district court erred in applying an enhancement under U.S.S.G. § 2B4.1 for commercial bribery that "substantially jeopardized the safety and soundness of a financial institution.”
United States v. Yielding, 657 F.3d 688 (8th Cir. 2011).
· cites it 3× “That provision then states: If the greater of the value of the bribe or the improper benefit to be conferred (A) exceeded $2,000 but did not exceed $5,000, increase by 1 level; or (B) exceeded $5,000, increase by the number of levels from the table in § 2B1.”
United States v. John J. Montani, 204 F.3d 761 (7th Cir. 2000).
· cites it 5× “1 of the Sentencing Guidelines directs the court to increase the offender’s sentence by a number of levels specified in § 2F1.”
United States v. Carlos Rodriguez Nerey, 877 F.3d 956 (11th Cir. 2017).
· cites it 2× “1 provide that the “value of the improper benefit to be conferred” means “the value of the action to be taken or effected in return for the bribe,” U.S.S.G. § 2B4.1 cmt. n.2. In the case of jointly undertaken criminal activity, the relevant conduct includes acts and omissions of…”
United States v. Josleyn, 99 F.3d 1182 (1st Cir. 1996).
· cites it 4× “The district court applied U.S.S.G. § 2B4.1 (commercial bribery) to determine Billmyer’s BOL.”
— U.S.S.G. §2B4.1(a) — 10 cases
United States v. Carlos Rodriguez Nerey, 877 F.3d 956 (11th Cir. 2017).
“1 provide that the “value of the improper benefit to be conferred” means “the value of the action to be taken or effected in return for the bribe,” U.S.S.G. § 2B4.1 cmt. n.2. In the case of jointly undertaken criminal activity, the relevant conduct includes acts and omissions of…”
United States v. Zangari, 677 F.3d 86 (2d Cir. 2012).
“In calculating Zangari’s adjusted offense level, the PSR included a six-level enhancement under USSG § 2B4.1, reflecting that the amount of loss to the victims of Zangari’s crime was more than $30,000 and less than $70,000.”
United States v. Ira Harvey Liss, 265 F.3d 1220 (11th Cir. 2001).
“The PSI also assigned Liss and Spuza a base offense level of eight based on U.S.S.G. § 2B4.1, which is the guideline for fraud or deceit.”
— U.S.S.G. §2B4.1(b) — 2 cases
United States v. Josleyn, 99 F.3d 1182 (1st Cir. 1996).
“The district court applied U.S.S.G. § 2B4.1 (commercial bribery) to determine Billmyer’s BOL.”
— U.S.S.G. §2B4.1(b)(1) — 19 cases
United States v. Kim Ricard, 922 F.3d 639 (5th Cir. 2019).
“As relates to her sentence, however, the district court committed error in calculating the improper benefit conferred under U.S.S.G. § 2B4.1 by failing to deduct the value of the services Progressive rendered from the total amount Progressive received from Medicare.”
United States v. John J. Montani, 204 F.3d 761 (7th Cir. 2000).
“1 of the Sentencing Guidelines directs the court to increase the offender’s sentence by a number of levels specified in § 2F1.”
— U.S.S.G. §2B4.1(b)(1)(B) — 5 cases
United States v. Valladares, 544 F.3d 1257 (11th Cir. 2008).
“1 to determine her base offense level because, according to her, the government argued that the ultimate purpose of the conspiracy was to defraud the Medicare program.”
United States v. Zangari, 677 F.3d 86 (2d Cir. 2012).
“In calculating Zangari’s adjusted offense level, the PSR included a six-level enhancement under USSG § 2B4.1, reflecting that the amount of loss to the victims of Zangari’s crime was more than $30,000 and less than $70,000.”
— U.S.S.G. §2B4.1(b)(1)(b) — 1 case
— U.S.S.G. §2B4.1(b)(2)(B) — 1 case
United States v. Lebedev, 932 F.3d 40 (2d Cir. 2019).
“Next, Gross contends that the district court erred in applying an enhancement under U.S.S.G. § 2B4.1 for commercial bribery that "substantially jeopardized the safety and soundness of a financial institution.”
— U.S.S.G. §2B4.1(b)(l) — 16 cases
United States v. Valladares, 544 F.3d 1257 (11th Cir. 2008).
“1 to determine her base offense level because, according to her, the government argued that the ultimate purpose of the conspiracy was to defraud the Medicare program.”
United States v. Yielding, 657 F.3d 688 (8th Cir. 2011).
“That provision then states: If the greater of the value of the bribe or the improper benefit to be conferred (A) exceeded $2,000 but did not exceed $5,000, increase by 1 level; or (B) exceeded $5,000, increase by the number of levels from the table in § 2B1.”
United States v. Ira Harvey Liss, 265 F.3d 1220 (11th Cir. 2001).
“The PSI also assigned Liss and Spuza a base offense level of eight based on U.S.S.G. § 2B4.1, which is the guideline for fraud or deceit.”
— U.S.S.G. §2B4.1(b)(l)(B) — 4 cases
United States v. Valladares, 544 F.3d 1257 (11th Cir. 2008).
“1 to determine her base offense level because, according to her, the government argued that the ultimate purpose of the conspiracy was to defraud the Medicare program.”
United States v. Zangari, 677 F.3d 86 (2d Cir. 2012).
“In calculating Zangari’s adjusted offense level, the PSR included a six-level enhancement under USSG § 2B4.1, reflecting that the amount of loss to the victims of Zangari’s crime was more than $30,000 and less than $70,000.”
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