Criminal Livelihood

If the defendant committed an offense as part of a pattern of criminal conduct engaged in as a livelihood, his offense level shall be not less than 13, unless §3E1.1 (Acceptance of Responsibility) applies, in which event his offense level shall be not less than 11. Application Notes: Commentary 1. 2. “Pattern of criminal conduct” means planned criminal acts occurring over a substantial pe- riod of time. Such acts may involve a single course of conduct or independent offenses. “Engaged in as a livelihood” means that (A) the defendant derived income from the pattern of criminal conduct that in any twelve-month period exceeded 2,000 times the then existing hourly minimum wage under federal law; and (B) the totality of circumstances shows that such criminal conduct was the defendant’s primary occupation in that twelve-month period (e.g., the defendant engaged in criminal conduct rather than regular, legitimate employment; or the de- fendant’s legitimate employment was merely a front for the defendant’s criminal conduct). Background: Section 4B1.3 implements 28 U.S.C. § 994(i)(2), which directs the Commission to en- sure that the guidelines specify a “substantial term of imprisonment” for a defendant who committed an offense as part of a pattern of criminal conduct from which the defendant derived a substantial portion of the defendant’s income. Historical Note Effective November 1, 1987. Amended effective June 15, 1988 (amendment 50); November 1, 1989 (amend- ment 269); November 1, 1990 (amendment 354); November 1, 2010 (amendment 747).