U.S.S.G. § 8C2.4

Base Fine

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(a) The base fine is the greatest of:

(1) the amount from the table in subsection (d) below corresponding to the offense level determined under §8C2.3 (Offense Level); or

(2) the pecuniary gain to the organization from the offense; or

(3) the pecuniary loss from the offense caused by the organization, to the extent the loss was caused intentionally, knowingly, or recklessly.

(b) Provided, that if the applicable offense guideline in Chapter Two includes a special instruction for organizational fines, that special instruction shall be applied, as appropriate.

(c) Provided, further, that to the extent the calculation of either pecuniary gain or pecuniary loss would unduly complicate or prolong the sentencing process, that amount, i.e., gain or loss as appropriate, shall not be used for the determination of the base fine.

(d) Offense Level Fine Table

Offense Level	Amount

6 or less	$8,500
7	$15,000
8	$15,000
9	$25,000
10	$35,000
11	$50,000
12	$70,000
13	$100,000
14	$150,000
15	$200,000
16	$300,000
17	$450,000
18	$600,000
19	$850,000
20	$1,000,000
21	$1,500,000
22	$2,000,000
23	$3,000,000
24	$3,500,000
25	$5,000,000
26	$6,500,000
27	$8,500,000
28	$10,000,000
29	$15,000,000
30	$20,000,000
31	$25,000,000
32	$30,000,000
33	$40,000,000
34	$50,000,000
35	$65,000,000
36	$80,000,000
37	$100,000,000
38 or more	$150,000,000.

(e) Special Instruction

(1) For offenses committed prior to November 1, 2015, use the offense level fine table that was set forth in the version of §8C2.4(d) that was in effect on November 1, 2014, rather than the offense level fine table set forth in subsection (d) above.

Commentary

Application Notes:

1. "Pecuniary gain," "pecuniary loss," and "offense" are defined in the Commentary to §8A1.2 (Application Instructions – Organizations). Note that subsections (a)(2) and (a)(3) contain certain limitations as to the use of pecuniary gain and pecuniary loss in determining the base fine. Under subsection (a)(2), the pecuniary gain used to determine the base fine is the pecuniary gain to the organization from the offense. Under subsection (a)(3), the pecuniary loss used to determine the base fine is the pecuniary loss from the offense caused by the organization, to the extent that such loss was caused intentionally, knowingly, or recklessly.

2. Under 18 U.S.C. § 3571(d), the court is not required to calculate pecuniary loss or pecuniary gain to the extent that determination of loss or gain would unduly complicate or prolong the sentencing process. Nevertheless, the court may need to approximate loss in order to calculate offense levels under Chapter Two. See Commentary to §2B1.1 (Theft, Property Destruction, and Fraud). If loss is approximated for purposes of determining the applicable offense level, the court should use that approximation as the starting point for calculating pecuniary loss under this section.

3. In a case of an attempted offense or a conspiracy to commit an offense, pecuniary loss and pecuniary gain are to be determined in accordance with the principles stated in §2X1.1 (Attempt, Solicitation, or Conspiracy).

4. In a case involving multiple participants (i.e., multiple organizations, or the organization and individual(s) unassociated with the organization), the applicable offense level is to be determined without regard to apportionment of the gain from or loss caused by the offense. See §1B1.3 (Relevant Conduct). However, if the base fine is determined under subsections (a)(2) or (a)(3), the court may, as appropriate, apportion gain or loss considering the defendant's relative culpability and other pertinent factors. Note also that under §2R1.1(d)(1), the volume of commerce, which is used in determining a proxy for loss under §8C2.4(a)(3), is limited to the volume of commerce attributable to the defendant.

5. Special instructions regarding the determination of the base fine are contained in §§2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery); 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); 2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity); 2E5.1 (Offering, Accepting, or Soliciting a Bribe or Gratuity Affecting the Operation of an Employee Welfare or Pension Benefit Plan; Prohibited Payments or Lending of Money by Employer or Agent to Employees, Representatives, or Labor Organizations); and 2R1.1 (Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among Competitors).

Background: Under this section, the base fine is determined in one of three ways: (1) by the amount, based on the offense level, from the table in subsection (d); (2) by the pecuniary gain to the organization from the offense; and (3) by the pecuniary loss caused by the organization, to the extent that such loss was caused intentionally, knowingly, or recklessly. In certain cases, special instructions for determining the loss or offense level amount apply. As a general rule, the base fine measures the seriousness of the offense. The determinants of the base fine are selected so that, in conjunction with the multipliers derived from the culpability score in §8C2.5 (Culpability Score), they will result in guideline fine ranges appropriate to deter organizational criminal conduct and to provide incentives for organizations to maintain internal mechanisms for preventing, detecting, and reporting criminal conduct. In order to deter organizations from seeking to obtain financial reward through criminal conduct, this section provides that, when greatest, pecuniary gain to the organization is used to determine the base fine. In order to ensure that organizations will seek to prevent losses intentionally, knowingly, or recklessly caused by their agents, this section provides that, when greatest, pecuniary loss is used to determine the base fine in such circumstances. Chapter Two provides special instructions for fines that include specific rules for determining the base fine in connection with certain types of offenses in which the calculation of loss or gain is difficult, e.g., price-fixing. For these offenses, the special instructions tailor the base fine to circumstances that occur in connection with such offenses and that generally relate to the magnitude of loss or gain resulting from such offenses.

Historical Note: Effective November 1, 1991 (amendment 422). Amended effective November 1, 1993 (amendment 496); November 1, 1995 (amendment 534); November 1, 2001 (amendment 634); November 1, 2004 (amendments 666 and 673); November 1, 2015 (amendment 791).

Notes of Decisions

Cited in 12 cases, 1998–2012 · leading case: United States v. Bradley, 644 F.3d 1213 (11th Cir. 2011).

Sort: Relevance Newest Treatment

United States v. Bradley, 644 F.3d 1213 (11th Cir. 2011). · cites it 2× “U.S.S.G. § 8C2.4. The district court reached a culpability score of 10 based on: (1) a starting score of five pursuant to § 802.”

United States v. West Coast Aluminum Heat Treating Co. June Fitch, 265 F.3d 986 (9th Cir. 2001). “See U.S.S.G. § 8C2.4(a). West Coast argues that, because the fine range maximum of $5,080,042.”

Neuros Co., Ltd v. KTurbo, Inc., 698 F.3d 514 (7th Cir. 2012). “, U.S.S.G. § 8C2.4(a). A principal goal of punishment is deterrence, and in the Mathias case an award of punitive damages capped at $20,000 ($40,000 for the two plaintiffs), as urged by the defendant because that would be four times the compensatory award, would have had a…”

United States v. Bros. Constr. Co. of Ohio, Inc., United States of Am. v. Tri-State Asphalt Corp., 219 F.3d 300 (4th Cir. 2000). “20, see U.S.S.G. § 8C2.4(a), and its maximum and minimum multipliers *319 were based on a culpability score of 9, which Tri-States does not challenge.”

United States v. Sun Diamond Growers, 138 F.3d 961 (D.C. Cir. 1998). “U.S.S.G. § 8C2.4. The court then assigned Sun-Diamond a “culpability score” of 9 out of a possible 10, see id.”

United States v. Patient Transfer Serv., Inc., 465 F.3d 826 (8th Cir. 2006). “At the original sentencing proceeding the district court set a base fine of $841,276 under U.S.S.G. § 8C2.4(a) and multiplied it by PTS’s total culpability factor determined under § 8C2.”

United States v. Electrodyne Sys. Corp., 28 F. Supp. 2d 213 (D.N.J. 1998). · cites it 2× “Given the base fine of $250,000, see U.S.S.G. § 8C2.4, the Guideline fine range for Count Ten is $200,000 to $400,000.”

United States v. Bp Prods. North Am. Inc., 610 F. Supp. 2d 655 (S.D. Tex. 2009). “U.S.S.G. § 8C2.4 emt. n. 1. The cases recognize that “[l]oss in the Sentencing Guidelines generally refers to pecuniary loss,” and that the Guidelines definition of “loss” was derived from § 3571(d).”

Inter Med. Supplies, Ltd. v. EBI Med. Sys., Inc., 181 F.3d 446 (3rd Cir. 1999). “See U.S.S.G. §§ 8C2.4(a), 8A1.2, comment (n.3(h)).”

United States v. Tucker, Kenneth, 409 F.3d 325 (6th Cir. 2005). “Instead, the court imposed a fine derived from the Offense Level Fine Table promulgated in Sentencing Guidelines § 8C2.4. The government also requested that KenAmerican’s culpability score be increased on the ground that KenAmerican had acted intentionally and obstructed justice.”

United States v. Martin J. Bradley, Jr. (11th Cir. 2011). · cites it 3× “U.S.S.G. § 8C2.4. The district court reached a culpability score of 10 based on: (1) a starting score of five pursuant to § 8C2.”

United States v. Bros. Const (4th Cir. 2000). “20, see U.S.S.G. § 8C2.4(a), and its maximum and minimum multipliers were based on a culpability score of 9, which Tri-States does not challenge.”

— U.S.S.G. §8C2.4(a) — 6 cases

United States v. West Coast Aluminum Heat Treating Co. June Fitch, 265 F.3d 986 (9th Cir. 2001). “See U.S.S.G. § 8C2.4(a). West Coast argues that, because the fine range maximum of $5,080,042.”

Inter Med. Supplies, Ltd. v. EBI Med. Sys., Inc., 181 F.3d 446 (3rd Cir. 1999). “See U.S.S.G. §§ 8C2.4(a), 8A1.2, comment (n.3(h)).”

— U.S.S.G. §8C2.4(d) — 2 cases

United States v. Electrodyne Sys. Corp., 28 F. Supp. 2d 213 (D.N.J. 1998). “Given the base fine of $250,000, see U.S.S.G. § 8C2.4, the Guideline fine range for Count Ten is $200,000 to $400,000.”

United States v. Martin J. Bradley, Jr. (11th Cir. 2011). “U.S.S.G. § 8C2.4. The district court reached a culpability score of 10 based on: (1) a starting score of five pursuant to § 8C2.”

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