Offenses Involving Fish, Wildlife, and Plants

(a) Base Offense Level: 6 (b) Specific Offense Characteristics (1) If the offense (A) was committed for pecuniary gain or otherwise in- volved a commercial purpose; or (B) involved a pattern of similar vio- lations, increase by 2 levels. (2) If the offense (A) involved fish, wildlife, or plants that were not quar- antined as required by law; or (B) otherwise created a significant risk of infestation or disease transmission potentially harmful to humans, fish, wildlife, or plants, increase by 2 levels. 316 ║ Guidelines Manual (November 1, 2024) §2Q2.1 (3) (If more than one applies, use the greater): (A) If the market value of the fish, wildlife, or plants (i) exceeded $2,500 but did not exceed $6,500, increase by 1 level; or (ii) ex- ceeded $6,500, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount; or (B) If the offense involved (i) marine mammals that are listed as de- pleted under the Marine Mammal Protection Act (as set forth in 50 C.F.R. § 216.15); (ii) fish, wildlife, or plants that are listed as endangered or threatened by the Endangered Species Act (as set forth in 50 C.F.R. Part 17); or (iii) fish, wildlife, or plants that are listed in Appendix I to the Convention on International Trade in Endangered Species of Wild Fauna or Flora (as set forth in 50 C.F.R. Part 23), increase by 4 levels. (c) Cross Reference (1) If the offense involved a cultural heritage resource or paleontological resource, apply §2B1.5 (Theft of, Damage to, or Destruction of, Cul- tural Heritage Resources or Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Her- itage Resources or Paleontological Resources), if the resulting offense level is greater than that determined above. Commentary Statutory Provisions: 16 U.S.C. §§ 668(a), 707(b), 1174(a), 1338(a), 1375(b), 1540(b), 3373(d); 18 U.S.C. §§ 545, 554. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. 2. “For pecuniary gain” means for receipt of, or in anticipation of receipt of, anything of value, whether monetary or in goods or services. Thus, offenses committed for pecuniary gain include both monetary and barter transactions. Similarly, activities designed to increase gross revenue are considered to be committed for pecuniary gain. The acquisition of fish, wildlife, or plants for display to the public, whether for a fee or donation and whether by an individual or an organization, including a governmental entity, a private non- profit organization, or a private for-profit organization, shall be considered to involve a “commer- cial purpose.” 3. For purposes of subsection (b)(2), the quarantine requirements include those set forth in 9 C.F.R. Part 92, and 7 C.F.R., Subtitle B, Chapter III. State quarantine laws are included as well. 4. When information is reasonably available, “market value” under subsection (b)(3)(A) shall be based on the fair-market retail price. Where the fair-market retail price is difficult to ascertain, the court may make a reasonable estimate using any reliable information, such as the reasonable replacement or restitution cost or the acquisition and preservation (e.g., taxidermy) cost. Market Guidelines Manual (November 1, 2024) ║ 317 §2Q2.2 value, however, shall not be based on measurement of aesthetic loss (so called “contingent valu- ation” methods). 5. 6. If the offense involved the destruction of a substantial quantity of fish, wildlife, or plants, and the seriousness of the offense is not adequately measured by the market value, an upward de- parture may be warranted. For purposes of subsection (c)(1), “cultural heritage resource” has the meaning given that term in Application Note 1 of the Commentary to §2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources). Background: This section applies to violations of the Endangered Species Act, the Bald Eagle Pro- tection Act, the Migratory Bird Treaty, the Marine Mammal Protection Act, the Wild Free-Roaming Horses and Burros Act, the Fur Seal Act, the Lacey Act, and to violations of 18 U.S.C. §§ 545 and 554 if the smuggling activity involved fish, wildlife, or plants. Historical Note Effective November 1, 1987. Amended effective January 15, 1988 (amendment 41); November 1, 1989 (amendments 209 and 210); November 1, 1991 (amendment 407); November 1, 1992 (amendment 452); No- vember 1, 1995 (amendment 534); November 1, 2001 (amendment 617); November 1, 2002 (amend- ment 638); November 1, 2007 (amendment 700); November 1, 2010 (amendment 746); November 1, 2011 (amendment 758); November 1, 2015 (amendment 791). §2Q2.2. [Deleted] Historical Note Section 2Q2.2 (Lacey Act; Smuggling and Otherwise Unlawfully Dealing in Fish, Wildlife, and Plants), ef- fective November 1, 1987, was deleted by consolidation with §2Q2.1 effective November 1, 1989 (amend- ment 209). 318 ║ Guidelines Manual (November 1, 2024) PART R ― ANTITRUST OFFENSES §2R1.1