Categorization of Offenses – BOP Program Statement 5162.05

Categorization of Offenses

U.S. Department of Justice

Federal Bureau of Prisons

PROGRAM STATEMENT

OPI: OGC/LCI

NUMBER: P5162.05

DATE: March 16, 2009

/s/

Approved: Harley G. Lappin
Director, Federal Bureau of Prisons

1. PURPOSE AND SCOPE

To assist in the implementation of various Federal Bureau of Prisons policies and programs. Section 3 of this Program Statement lists offenses the Bureau categorizes as crimes of violence as that term is used in various statutes. In addition, Section 4 lists offenses that in the Director’s discretion shall preclude an inmate’s receiving certain Bureau program benefits.

a. Program Objective

The expected result of this program is:

An inmate will be denied the benefits of certain programs if his or her offense is either a crime of violence or an offense identified at the discretion of the Director of the Bureau of Prisons.

b. Summary of Changes

Policy Rescinded

P5162.04 Categorization of Offenses (10/09/2007)

The March 16, 2009, reissuance of this policy updates the lists of statutory offenses. There are no other content changes.

2. APPLICATION

Criminal offenses are defined in many different titles of the United States Code, including Titles 7, 16, 18, 21, 26, 29, 30, and 46. The offenses contained in these titles that may be crimes of violence are listed in Section 3. Section 4 lists offenses that are not categorized as crimes of violence, but would nevertheless preclude an inmate’s receiving certain Bureau program benefits at the Director’s discretion.

Some Bureau policies or programs require a determination that an inmate committed a crime of violence, for example, the Program Statement on Inmate Discipline and Special Housing Units. Other policies or programs, such as early release pursuant to 18 U.S.C. § 3621(e) and placement in Intensive Confinement Centers, indicate that an inmate may be denied the benefits of such programs if he or she was convicted of an offense listed in either Section 3 or 4. When an inmate may be denied a program benefit under either Section 3 or 4, staff must carefully explain the basis for the denial. For example, if an inmate is convicted of an offense listed in Section 4, the inmate should be denied a program benefit because he or she committed an offense identified at the Director’s discretion, rather than a crime of violence.

If a particular Code section in these titles is not listed in Section 3 or Section 4, and case management staff believe the crime might be violent, or might preclude an inmate’s receiving certain Bureau program benefits, they shall contact legal staff at the institution or the Regional Counsel. Also, if a Judgment and Commitment Order (J&C) references a United States Code section that is not found in Titles 7, 16, 18, 21, 26, 30, 42, or 49, they should contact legal staff at the institution or the Regional Counsel to determine whether a recommendation should be made to change the policy to incorporate the offense in question.

Some of the Code sections may be listed in more than one section below; such duplication is indicated by an asterisk. In such cases, staff are to check subsequent sections of the Program Statement to determine whether the offense is a crime of violence or an offense that would otherwise preclude an inmate’s receiving certain Bureau program benefits.

3. OFFENSES CATEGORIZED AS CRIMES OF VIOLENCE

a. Criminal Offenses That are Crimes of Violence in All Cases

Any conviction for an offense listed below is categorized as a crime of violence.

(1) Title 18, United States Code Sections

32 – destruction of aircraft
33 – destruction of motor vehicles or motor vehicle facilities
34 – penalty when death results
35(b) – conveying false information that harms human life
36 – firing weapons into group of persons (VCCLEA addition)
37 – violence at international airports (VCCLEA addition)
43 – force, violence, and threats involving animal enterprises
81 – arson within maritime jurisdiction
111 – assaulting officers of the United States
112(a) – assaulting foreign officials
113 – assaults within maritime jurisdictions
114 – maiming within maritime jurisdiction
115 – threatening family member of a federal official
116 – female genital mutilation
117 – domestic assault by an habitual offender
175 – biological weapons
229 – prohibited activities (chemical weapons)
231 – civil disorders
245 – federally protected activities
247 – damage to religious property; obstruction of persons in the free exercise of religious beliefs
248 – freedom of access to clinic entrances
351 – assassination of cabinet and congress members
373 – soliciting to commit a violent act
521(c)(2) – criminal street gangs
753 – rescue of an inmate to prevent execution
832 – participation in nuclear and weapons of mass destruction threats to the United States
842 – explosive materials
844 – penalties
871 – threats against the President
875(a), (b), (c) – interstate communications
878 – threats against foreign officials
879 – threats against former presidents
922(a)(2), (a)(3), (a)(4), (a)(5), (a)(7), (a)(8), (a)(9), (b)(2), (b)(3), (b)(4), (b)(5), (c), (d)(1), (d)(2), (d)(4), (d)(8), (d)(9), (g), (k), (n), (o), (p), (q)(2), (q)(3), (r), (s)(1), (t)(1), (u), (x)(1)(A), (x)(2)(A), & (z)(1) – firearm violations
924(c) – firearms used in violent or drug trafficking crimes
929 – use of restricted ammunition
930(a), (b), & (c) – possession of firearms and dangerous weapons in Federal facilities
956 – conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country
970(a) – damage of property owned by foreign governments
1091 – genocide
1111 – murder
1112 – manslaughter
1113 – attempt to commit murder or manslaughter
1114 – murder of officers
1116 – murder of foreign officials
1117 – (conspiracy to murder)
1118 – murder in correctional institution (VCCLEA addition)
1119 – foreign murder of US national (VCCLEA addition)
1120 – murder by escaped prisoner (VCCLEA addition)
1121 – murder by state or local officer (VCCLEA addition)
1201 – kidnapping
1203 – hostage taking
1204 – international parental kidnapping
1363 – buildings or property within special maritime and territorial jurisdiction
1364 – interference by foreign commerce by violence
1365 – tampering with consumer products except 1365(b),(c)
1366 – destruction of an energy facility
1368 – harming animals used in law enforcement
1369 – destruction of veterans’ memorials
1512(a) – killing witness or victim
1513 – retaliation against witness or victim
1531 – partial-birth abortions prohibited
1581 – peonage
1583 – enticement into slavery
1584 – sale into servitude
1585 – slave trading
1587 – possession of slaves aboard a vessel
1588 – transporting slaves
1589(1) & (2) – forced labor
1591 – sex trafficking of children or by force, fraud, or coercion
1651 – piracy
1652 – citizens as pirates
1653 – aliens as pirates
1655 – assault on commander as pirates
1659 – attack to plunder a vessel
1661 – robbery ashore
1751 – assassination of president or staff
1752(a)(5) – restricted building or grounds
1792 – mutiny or riot
1841 – protection of unborn children
1855 – timber set afire
1859 – surveys interrupted
1864 – hazardous devices on federal lands
1958 – use of interstate commerce in murder for hire
1959 – violent crimes aiding racketeering
1991 – entering train to commit crime
1992 – wrecking trains
2101 – riots
2111 – special maritime jurisdiction
2113(d), (e) – bank robbery and incidental crimes
2114 – assault of person carrying mail
2115 – breaking into post office
2116 – railway or steamboat post office
2118(a), (b), (c) – robberies and burglaries involving controlled substances
2119 – crimes involving motor vehicles
2191 – cruelty to seamen
2231(b) – assault or resistance
2232(a) – destruction of property to prevent seizure
2233 – rescue of seized property
2241 – aggravated sexual abuse
2242 – sexual abuse
2243(a) – sexual abuse of a minor or ward
2244(a) & (c) – abusive sexual contact
2245 – sexual abuse resulting in death (VCCLEA addition)
2251 – sexual exploitation of children
2251A – selling or buying of children
2260(a) – production of sexually explicit depictions of a minor for importation into the United States
2261 – interstate domestic violence (VCCLEA addition)
2261A – stalking
2271 – conspiracy to destroy vessels
2272 – destruction of vessel by owner
2273 – destruction of vessel by nonowner
2275 – firing or tampering with vessels
2276 – breaking and entering vessels
2277(a) – explosives or dangerous weapons aboard vessels
2280 – violence against maritime navigation (VCCLEA addition)
2281 (NOT(A)) – violence against fixed platforms (VCCLEA addition)
2291 (NOT(a)(8)-(9)) – destruction of vessel or maritime facility
2332 – penalties for homicide
2332a – use of weapons of mass destruction (VCCLEA addition)
2340A – torture
2383 – rebellion or insurrection
2384 – sedition conspiracy
2385 – advocating the overthrow of the government
2389 – recruiting for service against U.S.
2390 – enlistment to serve against U.S.
2421 – transportation for illegal sexual activity
2422 – coercion into interstate travel for illegal sexual activity
2423 – transportation of minors for illegal sexual activity

(2) Title 21, United States Code Sections

841(e) – boobytraps on federal property
848(e) – death penalty for criminal offenses
858 – endangering human life while manufacturing controlled substances

(3) Title 26, United States Code Sections

5861(a) thru (l) – firearms

(4) Title 42, United States Code Sections

2000(e)(13) – killing of officer while enforcing Equal Employment Act
2283(a) – protection of nuclear inspectors
2284(a) – sabotage of nuclear facilities
3631 – interference with housing

(5) Title 49, United States Code Sections

46502 – aircraft piracy
46504 – interference with flight crew members
46505 – carrying a weapon or explosive on an aircraft
46507 – false information and threats

b. * Title 18, United States Code Section 2113(a)

Title 18, United States Code Section 2113(a) provides in part:

“Whoever, by force and violence, or by intimidation, takes or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; . . . shall be fined under this title or imprisoned not more than twenty years, or both.”

This statute covers various offenses, including not only bank robbery but also embezzling bank funds, stealing bank property, and bank larceny.

With regard to the specific crime of bank robbery, the offense shall be considered a crime of violence, since the offense involves an explicit or implicit threat of force and thus has as an element the threatened use of physical force against the person or property of another. For offenses pursuant to § 2113(a) other than bank robbery, see Section 4.e. below.

c. Conspiracy, Attempt, and Similar Offenses Which Involve an Underlying Offense

The statutes listed in this section cover conspiracy offenses (see, e.g., 18 U.S.C. § 371) when an individual has planned with others to commit a particular crime. Other listed statutes cover attempted offenses, i.e. when an individual tried but did not succeed in committing the crime. In reviewing these types of offenses, it is necessary to examine the “underlying offense” (what the defendant was conspiring to do or attempting to do). If the underlying offense is categorized as violent pursuant to Section 3.a. of this Program Statement, e.g., murder, then the attempt or the conspiracy offense is also violent. The underlying offense will be included in the PSI and may be noted on the J&C.

Other statutes listed in this section do not criminalize behavior but set out penalties that result from violating other statutes.

Example: 18 U.S.C. § 924(a)(1)(B) provides that whoever

“knowingly violates subsection (a)(4), (f), (k), (r), (v), or (w) of section 922 . . . shall be fined under this title, imprisoned not more than five years, or both.”

The J&C may indicate the sentence was imposed pursuant to the penalty provisions of § 924(a)(1)(B) without indicating the conviction for the underlying offense. The PSI, however, notes the underlying conviction, “Transporting a Destructive Device in Interstate Commerce” [18 U.S.C. § 922(a)(4)]. In order to determine whether the offender’s current offense is violent, staff should assess whether the underlying offense is violent in accordance with Section 3.a. of this Program Statement; if the underlying offense is violent, then the offender should be deemed violent.

The following offenses may be violent depending on the underlying offense.

Title 18, United States Code Sections

*241 – conspiracy to deprive civil rights (if conspiracy)
*371 – conspiracy to commit offense/fraud against U.S.
*372 – conspiracy to impede or injure officer
*924 – penalties for firearms violations
*1962 – racketeering
*2118(d) – robberies involving controlled substances

4. OFFENSES THAT AT THE DIRECTOR’S DISCRETION SHALL PRECLUDE AN INMATE’S RECEIVING CERTAIN BUREAU PROGRAM BENEFITS

For certain Bureau programs, such as early release pursuant to 18 U.S.C. § 3621(e) and placement in Intensive Confinement Centers, an inmate may be denied program benefits if he or she was convicted of an offense listed in either this section or Section 3. If an inmate is denied the benefit of such a program, staff must carefully describe the basis for the denial. For example, if an inmate is convicted of an offense listed in this section, the inmate shall be denied a program benefit because he or she committed an offense identified at the Director’s discretion, rather than a crime of violence.

As an exercise of the discretion vested in the Director, an inmate serving a sentence for an offense that falls under the provisions described below shall be precluded from receiving certain Bureau program benefits.

Inmates whose current offense is a felony that:

Has as an element, the actual, attempted, or threatened use of physical force against the person or property of another, or
Involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device), or
By its nature or conduct, presents a serious potential risk of physical force against the person or property of another, or
By its nature or conduct involves sexual abuse offenses committed upon children.

Thus, for an inmate to receive Bureau program benefits such as those mentioned above, he or she must not be convicted of an offense listed in this section or in Section 3.

a. Criminal Offenses with an Enhanced Base Offense Level

Convictions for an offense listed below may or may not satisfy the standard listed in the introductory portion of Section 4.

At the time of sentencing, the court makes a finding of whether an offense listed below involved the use of force, and this finding is reflected in the PSI section entitled “Offense Computation,” subsection entitled “Base Offense Level.” This subsection references a particular U.S. Sentencing Guideline provision that distinguishes between violations of the particular criminal code section that are committed with and without force.

Example: Title 18 United States Code Section 241, Conspiracy Against Rights provides:

“If two or more persons conspire to injure, oppress, threaten or intimidate any person . . . in the free exercise or enjoyment of any right or privilege ”

This crime may or may not be committed through the use of force or threatened use of force, since one can be oppressed through means other than force. Pursuant to U.S. Sentencing Guideline Section 2H2.1:

If the crime involved obstructing an election or registration, and the obstruction occurred using force or threat of force against persons or property, the base offense level is 18, or
If the obstruction occurred without the use or threatened use of force, such as forgery, fraud, theft, deceit, etc., the base offense level is 12.

If an offender was convicted of an offense listed below, case management staff must examine the base offense level to determine whether the offense would preclude the inmate from receiving certain Bureau program benefits. If the PSI does not include an explanation as to the reason for assigning a particular base offense level, case management staff may need to examine the particular Sentencing Guideline referenced.

Some of the offenses listed below may correspond to more than one Sentencing Guideline, only one of which includes a base level adjustment for the use or threatened use of force. Accordingly, it is possible that an examination of the Offense Computation section of the PSI may reveal no mention of the use or threatened use of force. When the PSI fails to explain the reason for assigning a particular base offense level, case management staff must examine the particular Sentencing Guideline referenced to determine whether the court found that the use of force was implicated in the offense.

Case management staff may contact institution legal staff or Regional Counsel if they have questions regarding this section. A list of offenses for which the Sentencing Guidelines base offense level is affected by the use or threatened use of force follows. At the Director’s discretion, inmates with such an offense shall be precluded from receiving certain Bureau program benefits.

Title 18, United States Code Sections

241 – conspiracy against rights (for other than conspiracy)
242 – deprivation of rights under color of law
592 – putting troops at polls
593 – interference by armed forces
1791 – possessing contraband in prison
1952 – transporting items in aid of racketeering
2231(a) – assault on persons executing search warrant
2381 – treason

b. Criminal Offenses with a Specific Offense Characteristic Enhancement

Convictions for an offense listed below, like those listed in Section 4.a., may or may not satisfy the standard listed in the introductory portion of Section 4.

At the time of sentencing, the court makes a finding of whether the offense involved the use or threatened use of force, and this finding is reflected in the PSI section entitled “Offense Computation,” subsection entitled “Specific Offense Characteristics.” This subsection references a particular U.S. Sentencing Guideline that provides for an increase in the Total Offense Level if the criminal violation was committed with force.

Example: Section 841 of Title 21, United States Code makes it a crime to manufacture, distribute, or possess with the intent to distribute drugs. Under the Sentencing Guidelines (§ 2D1.1 and § 2D1.11), the defendant could receive an increase in his or her base offense level because of a “Specific Offense Characteristic” (for example, if a dangerous weapon was possessed during commission of the offense), the court would increase the defendant’s base offense level by two levels. This particular “Specific Offense Characteristic” (possession of a dangerous weapon during the commission of a drug offense) poses a serious potential risk that force may be used against persons or property. Specifically, as noted in the U.S. Sentencing Guidelines § 2D1.1., application note 3, the enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. Accordingly, an inmate who was convicted of manufacturing drugs (21 U.S.C. § 841) and received a two-level enhancement for possession of a firearm has been convicted of an offense that will preclude the inmate from receiving certain Bureau program benefits.

In some cases, an inmate may be convicted of an offense listed in this section as well as 18 U.S.C. § 924(c)(1), use of a firearm during a crime of violence or drug trafficking crime. According to the U.S. Sentencing Guidelines, if a defendant receives a § 924(c)(1) conviction, the court may not assess a two-level “Specific Offense Characteristic” enhancement for possession of a firearm; however, in light of the Supreme Court ruling in Bailey v. U.S., 116 S.Ct. 501 (1995), a number of § 924(c)(1) convictions have been vacated. In Bailey, the Court held that the term “use” connotes an active employment of the firearm. If any of the offenses listed in this section were accompanied by a § 924(c)(1) conviction that was subsequently vacated due to the Bailey decision, staff shall presume that the inmate would have received a two-level “Specific Offense Characteristic” enhancement for possession of a firearm unless there is a specific court order to the contrary. Thus, absent a court order specifically denying the application of a two point enhancement for possession of a firearm, the inmate will not receive certain Bureau program benefits.

Some of the offenses listed below may correspond to more than one Sentencing Guideline, only one of which includes a Specific Offense Characteristic for the use of force. Alternatively, the PSI may fail to adequately describe the Specific Offense Characteristic that underlies the increase in offense level. In either case, it is possible that an examination of the Offense Computation section of the PSI reveals no mention of the use of force. If this occurs, case management staff must examine the particular Sentencing Guideline referenced to determine whether the court found that the use of force was implicated in the offense.

Example: The PSI in the above scenario may state “SOC (specific offense characteristic) 2F1.1(4) increase 2 levels.” If the Report does not further state “since the offense involved the conscious or reckless risk of serious bodily injury, increase by two levels pursuant to 2F1.1(4),” case management staff may have to examine Guideline 2F1.1(4) to determine that the only basis for this particular increase is a finding that the offense included the risk of bodily injury.

Case management staff may contact institution legal staff or Regional Counsel if they have questions regarding this section. Below is a list of offenses for which there could be a Specific Offense Characteristic enhancement for the use of force:

(1) Title 16, United States Code Sections

773e(a)(2), (3), (4), (6) – violation of Northern Pacific Halibut Act
773g – violation of Northern Pacific Halibut Act
1857(a)(D), (E), (F), (H) – violation of National Fishery Management Program
1859 – violation of National Fishery Management Program
2435(4), (5), (6), (7) – violation of Antarctic Marine Living Resources Convention
2438 – violation of Antarctic Marine Living Resources Convention
3606 – violation of North Atlantic Salmon Fishing
3637(a)(2), (3), (4), (6), (c) – violation of Pacific Salmon Fishing
5009(5), (6), (7), (8) – violation of North Pacific Anadromous Stock Convention
5010(b) – violation of North Pacific Anadromous Stock Convention

(2) Title 18, United States Code Sections

755 – officer permitting escape
757 – procures escape for prisoner of war
874 – kickbacks from public works employees
894 – extending credit through extortionate means
1163 – embezzlement/theft from Indian organizations
1503 – influencing or injuring officer or juror
1505 – obstruction of proceedings before departments or agencies
1511 – obstruction of state or local law enforcement
1516 – obstruction of a federal audit
1517 – obstructing financial examination
1951 – interference with commerce by threats/violence
2112 – robbery of personal property of United States

(3) Title 21, United States Code Sections

841 (NOT(e)) – controlled substance violation
*846 – attempt and conspiracy

(4) Title 26, United States Code Sections

7212 – attempt to interfere with revenue laws
7214 – unlawful acts by employees of the IRS

(5) Title 30, United States Code Sections

1461(a)(3), (4), (5), (7) – resisting officers for violations under Deep Seabed Mineral Resources Act
1463 – violations of Deep Seabed Mineral Resources Act

(6) Title 33, United States Code Section

1232(b)(2) – ports and waterways safety enforcement provisions

(7) Title 40, United States Code Section

193f(a) – security of Capitol grounds and buildings

(8) Title 42, United States Code Sections

1973aa – application of prohibition to other States
1973aa-1 – residence requirements for voting
1973aa-1a – bilingual election requirements
1973aa-3 – penalty
1973bb – enforcement of twenty-sixth amendment
1973gg-10 – criminal penalties
2283(b) – protection of nuclear inspectors
9151(2), (3), (4), (5) – violation of Ocean Thermal Energy Conversion Act
9152(d) – violation of Ocean Thermal Energy Conversion Act

(9) Title 46, United States Code Section

1903 – manufacture, distribution, or possession with intent to manufacture controlled substances

(10) Title 49, United States Code Section

46505(b) – carrying a weapon on an aircraft

c. Criminal Offenses That May Preclude an Inmate’s Receiving Certain Bureau Program Benefits

In addition to Sections 4.a. and 4.b. above, an inmate may be precluded from receiving certain Bureau program benefits based on an offense listed in this section. For the offenses listed below, the Sentencing Guidelines may provide little insight into the court’s findings. Accordingly, rather than simply examining the base offense level or the specific offense characteristics, case managers must carefully examine the entire Offense Computation section of the PSI and, if necessary, the Offense Conduct section to determine if the offense would preclude an inmate’s receiving certain Bureau program benefits based on whether the offense satisfies the standard listed in the introductory portion of Section 4.

The following offenses may preclude an inmate’s receiving certain Bureau program benefits based on a variety of factors.

(1) Title 7, United States Code Section

473c-1 – offenses in relation to sampling of cotton

(2) Title 16, United States Code Sections

5106(e)(5), (6), (7), (9), (f)(2) – violation of Atlantic Coast Fisheries Cooperative Management

(3) Title 18, United States Code Sections

700 – desecration of the flag of the United States
751 – escape from federal prison
752 – instigating/assisting escape from federal prison
831 – prohibited acts involving nuclear materials
876 – mailing threatening communications
877 – mailing threatening communications from foreign country
922(a)(1) – engage in business of importing, manufacturing, or dealing in firearms or ammunition
1153 – offenses within Indian Country
1512(b) – tampering with a witness/victim/informant
1708 – theft or receipt of stolen mail
1792 – mutiny and riot in prison
1956 – money laundering
2117 – breaking into carrier facilities
2152 – destruction of submarine and torpedo works
2153 – destruction of war materials
2154 – production of defective war material
2155 – destruction of national defense materials
2156 – production of defective national defense material
2192 – incitation of seamen to revolt
2193 – mutiny
2247 – repeat offenders
2387 – activities involving armed forces

(4) Title 40, United States Code Sections

193f(a), (b) – security of Capitol grounds and buildings

d. Conspiracy, Attempt, and Other Offenses Which Involve an Underlying Offense

Some of the statutes listed in this section cover conspiracy offenses (see, e.g., 21 U.S.C. § 846) when an individual has planned with others to commit a particular crime. Other listed statutes cover attempted offenses (see, e.g., 21 U.S.C. §§ 846 and 963) when an individual tried but did not succeed in committing the crime. In reviewing these types of offenses, it is necessary to examine the “underlying offense” (what the defendant was conspiring to do or attempting to do). If the underlying offense would preclude the inmate from receiving certain Bureau program benefits based on any of the other portions of Section 4 of this policy, the conspiracy or the attempt offense shall also preclude the inmate from receiving the same benefits. The underlying offense will be included in the PSI and may be noted on the J&C.

Example: The Judgment and Commitment Order may indicate a conviction for “Attempt and Conspiracy” (21 U.S.C. § 846). The accompanying Presentence Investigation Report will reference the underlying crime, in many cases it will be “Possession with Intent to Distribute a Controlled Substance” (21 U.S.C. § 841). Staff should then review the underlying offense (in this case possession of controlled substance) to determine whether it satisfies the standard listed in the introductory portion of Section 4. As noted in the example in section b above, if the PSI indicates that the defendant received a 2-level increase for possessing a dangerous weapon, then the offense should preclude the inmate from receiving certain Bureau program benefits; if no such enhancement was given, the offense should not preclude the inmate from receiving such benefits.

(1) Title 18, United States Code Sections

*241 – conspiracy to deprive civil rights (if conspiracy)
*371 – conspiracy to commit offense/fraud against U.S.
*372 – conspiracy to impede or injure officer
*924 – penalties for firearms violations
*1962 – racketeering
*2118(d) – robberies involving controlled substances

(2) Title 21, United States Code Sections

*846 – attempt and conspiracy
848 – controlled substances violations as criminal enterprise
963 – conspiracy or attempt to violate controlled substance laws

e. Special Circumstances

Title 18, United States Code § 922(g). All offenses under 18 U.S.C. § 922(g) shall preclude an inmate from receiving certain Bureau program benefits.

*Title 18, United States Code § 2113(a). Excluding bank robbery (see Section 3.b. above), other offenses covered by 18 U.S.C. § 2113(a), (e.g., bank larceny, etc.), shall be reviewed similarly to offenses in Section 4.b. Defendants may receive a Specific Offense Characteristic enhancement that will result in an increase in the base offense level. Such enhancements provide for an increase in the defendant’s base offense level if:

A firearm was discharged,
A firearm or other dangerous weapon was brandished, displayed, possessed, or used, or
An express or implied threat of death was made (U.S.S.G. 2B3.2(b), Application Notes 2 and 6).

If a defendant received such an enhancement (or one of the other enhancements involving the use or threatened use of force), the offense shall preclude the inmate’s receiving certain Bureau program benefits.

Title 18, United States Code § 2243. A conviction for sexual abuse of a minor or ward shall preclude an inmate from receiving certain Bureau program benefits.

5. OFFENSES COMMITTED BEFORE NOVEMBER 1, 1987

The Sentencing Guidelines are generally not applicable for offenses committed before November 1, 1987. Accordingly, for offenses identified in Section 4 or offenses similar to those listed in Section 4 of this Program Statement that were committed before this date, case managers must make a determination, based on the narrative description of the crime contained in the PSI, whether the offense involved:

The use, attempted use, or threatened use of force;
The use, carrying, or possession of a dangerous weapon;
A serious potential risk that force might be used against the person or property of another; or
Sexual abuse committed upon children.

Offenses listed in Section 3, Crimes of Violence, or offenses similar to those listed in Section 3, which were committed before November 1, 1987, shall be treated in the same manner as “new law” offenses.

6. CRIMES CODIFIED PURSUANT TO THE VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994

The VCCLEA created a number of new Federal criminal offenses and enhanced penalties for several existing offenses. Some of the new offenses are included in the above lists, but the lists will be revised as needed after the U.S. Sentencing Commission drafts new guidelines. These lists will also be updated periodically to reflect statutory changes or at the Director’s discretion.

REFERENCES

Program Statements

P5110.15 – Notification of Release to State and Local Law Enforcement Officials (8/30/00)

P5162.02 – Definition of Term, Crimes of Violence (7/24/95)

P5322.12 – Inmate Classification and Program Review (11/29/06)

P5330.11 – Psychology Treatment Programs (3/16/09)

P5331.02 – Early Release Procedures Under 18 U.S.C. 3621 (e) (3/16/09)

P5800.12 – Receiving and Discharge Manual (12/31/97)

P5800.15 – Correctional Systems Manual (1/1/09)

P5880.28 – Sentence Computation Manual (CCCA of 1984) (2/21/92)

P5880.30 – Sentence Computation Manual (“Old Law” Pre-CCCA 1984) (7/16/93)

ACA Standards

None.

Records Retention Requirements

Requirements and retention guidance for records and information applicable to this program are available in the Records and Information Disposition Schedule (RIDS) on Sallyport and BOPDOCS.

Categorization of Offenses – BOP Program Statement 5162.05 Download

Published Feb 8, 2025 by Christopher Zoukis, JD, MBA | Last Updated by Christopher Zoukis, JD, MBA on Feb 16, 2025 at 4:20 pm

Categorization of Offenses – BOP Program Statement 5162.05

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