[Federal Register Volume 59, Number 86 (Thursday, May 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10782]


[[Page Unknown]]

[Federal Register: May 5, 1994]


  
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Part III





United States Sentencing Commission





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Submission to Congress of Amendments to the Sentencing Guidelines; 
Notices
UNITED STATES SENTENCING COMMISSION

 

Amendments to the Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of submission to Congress of amendments to the 
sentencing guidelines.

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SUMMARY: Pursuant to its authority under section 994(p) of title 28, 
United States Code, the Commission on April 28, 1994, submitted to the 
Congress amendments to the sentencing guidelines, policy statements, 
and official commentary together with reasons for the amendments.

DATES: Pursuant to 28 U.S.C. 994(p), as amended by section 7109 of the 
Anti-Drug Abuse Act of 1988 (Pub. L. 100-690, Nov. 18, 1988), the 
Commission has specified an effective date of November 1, 1994, for 
these amendments. Comments regarding amendments that the Commission 
should specify for retroactive application to previously sentenced 
defendants should be received no later than June 30, 1994.

ADDRESSES: Comments should be sent to: United States Sentencing 
Commission, One Columbus Circle, N.E., Suite 2-500, South Lobby, 
Washington, DC 20002-8002, Attn: Public Information.

FOR FURTHER INFORMATION CONTACT: Mike Courlander, Public Information 
Specialist, telephone: (202) 273-4590.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission, an 
independent agency in the judicial branch of the U.S. Government, is 
empowered by 28 U.S.C. 994(a) to promulgate sentencing guidelines and 
policy statements for federal sentencing courts. The statute further 
directs the Commission to review periodically and revise guidelines 
previously promulgated and authorizes it to submit guideline amendments 
to the Congress no later than the first day of May each year. See 28 
U.S.C. 994(o), (p). Absent action of Congress to the contrary, the 
amendments become effective on the date specified by the Commission 
(i.e., November 1, 1994) by operation of law.
    Notice of the amendments submitted to the Congress on April 28, 
1994, was published in the Federal Register of December 21, 1993 (58 FR 
67521). A public hearing on the proposed amendments was held in 
Washington, DC, on March 24, 1994. After review of the hearing 
testimony and additional public comment, the Commission promulgated the 
amendments, each having been approved by at least four voting 
Commissioners.
    In connection with its ongoing process of guideline review, the 
Commission welcomes comment on any aspect of the sentencing guidelines, 
policy statements, and official commentary. Specifically, the 
Commission solicits comment on which, if any, of the amendments 
submitted to the Congress that may result in a lower guideline range 
should be made retroactive to previously sentenced defendants under 
Policy Statement 1B1.10.

    Authority: 28 U.S.C. 994(a), (o), (p); sec. 7109 of the Anti-
Drug Abuse Act of 1988 (Pub. L. 100-690).
William W. Wilkins, Jr.,
Chairman.

Amendments to the Sentencing Guidelines

    Pursuant to section 994(p) of title 28, United States Code, as 
amended by section 7109 of the Anti-Drug Abuse Act of 1988 [Pub. L. 
100-690, Nov. 18, 1988, the United States Sentencing Commission reports 
to the Congress the following amendments to the sentencing guidelines, 
and the reasons therefor. As authorized by this section, the Commission 
specifies an effective date of November 1, 1994, for these amendments.

Policy Statements, and Official Commentary

    1. Amendment: The Commentary to Sec. 1B1.3 captioned ``Application 
Notes'' is amended in Note 2 by inserting the following additional 
paragraph as the eighth paragraph:
    ``A defendant's relevant conduct does not include the conduct of 
members of a conspiracy prior to the defendant's joining the 
conspiracy, even if the defendant knows of that conduct (e.g., in the 
case of a defendant who joins an ongoing drug distribution conspiracy 
knowing that it had been selling two kilograms of cocaine per week, the 
cocaine sold prior to the defendant's joining the conspiracy is not 
included as relevant conduct in determining the defendant's offense 
level). The Commission does not foreclose the possibility that there 
may be some unusual set of circumstances in which the exclusion of such 
conduct may not adequately reflect the defendant's culpability; in such 
a case, an upward departure may be warranted.''.
    The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is 
amended in Note 9(B) by deleting ``and the time interval between 
offenses'' and inserting in lieu thereof:

``, the regularity (repetitions) of the offenses, and the time interval 
between the offenses. When one of the above factors is absent, a 
stronger presence of at least one of the other factors is required. For 
example, where the conduct alleged to be relevant is relatively remote 
to the offense of conviction, a stronger showing of similarity or 
regularity is necessary to compensate for the absence of temporal 
proximity.''.
    Reason for Amendment: This amendment clarifies the operation of 
Sec. 1B1.3 (Relevant Conduct) with respect to the defendant's 
accountability for the actions of other conspirators prior to the 
defendant's joining the conspiracy. The amendment is in accord with the 
rule stated in recent caselaw. See, e.g., United States v. Carreon, 11 
F.3d 1225 (5th Cir. 1994); United States v. Petty, 982 F.2d 1374, 1377 
(9th Cir. 1993); United States v. O'Campo, 973 F.2d 1015, 1026 (1st 
Cir. 1992). Cf. United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d 
Cir. 1991); United States v. Edwards, 945 F.2d 1387, 1393 (7th Cir. 
1991)) (applying earlier versions of Sec. 1B1.3). By expressly 
addressing this issue, this amendment will ensure consistency in 
guideline interpretation. In addition, this amendment adds a well-
phrased formulation developed by the Ninth Circuit in United States v. 
Hahn, 960 F.2d 903 (9th Cir. 1992), to the commentary addressing the 
circumstances in which multiple acts constitute the ``same course of 
conduct.''.
    2. Amendment: Section 1B1.10(a) is amended by deleting 
``guidelines'' and inserting in lieu thereof ``Guidelines Manual'', by 
deleting ``may be considered'' and inserting in lieu thereof ``is 
authorized'', by inserting ``and thus is not authorized'' immediately 
following ``policy statement'', and by deleting ``subsection (d)'' 
wherever it appears and inserting in lieu thereof in each instance 
``subsection (c)''.
    Section 1B1.10(b) is amended by inserting ``, and to what extent,'' 
immediately before ``a reduction'', and by deleting ``originally 
imposed had the guidelines, as amended, been in effect at that time'' 
and inserting in lieu thereof ``imposed had the amendment(s) to the 
guidelines listed in subsection (c) been in effect at the time the 
defendant was sentenced''.
    Section 1B1.10 is amended by deleting subsection (c), and by 
redesignating subsection (d) as subsection (c).
    'The Commentary to Sec. 1B1.10 captioned ``Application Note'' is 
amended by deleting ``Note'' and inserting in lieu thereof ``Notes'', 
and by deleting Note 1 and inserting in lieu thereof:
    ``1. Eligibility for consideration under 18 U.S.C. 3582(c)(2) is 
triggered only by an amendment listed in subsection (c) that lowers the 
applicable guideline range.
    2. In determining the amended guideline range under subsection (b), 
the court shall substitute only the amendments listed in subsection (c) 
for the corresponding guideline provisions that were applied when the 
defendant was sentenced. All other guideline application decisions 
remain unaffected.''.
    The Commentary to Sec. 1B1.10 captioned ``Background'' is amended 
in the last paragraph by deleting ``subsection (d)'' and inserting in 
lieu thereof ``subsection (c)''.
    Reason for Amendment: This amendment revises Sec. 1B1.10 to 
substantially simplify its operation. Under this amendment, the court 
will recalculate the guideline range using only those amendments 
expressly designated as retroactive. In addition, this amendment 
deletes current Sec. 1B1.10(c), a rather complex subsection, as an 
unnecessary restriction on the court's consideration of a revised 
sentence in response to an amended guideline range. Finally, this 
amendment makes a number of minor clarifying revisions.
    3. Amendment: Section 2D1.1(c) is amended by deleting subdivisions 
1-3, by renumbering subdivisions 4-19 as 2-17, and by inserting the 
following as subdivision 1:

``(1) 30 KG or more of Heroin (or the equivalent Level 38 amount of 
other Schedule I or II Opiates);
150 KG or more of Cocaine (or the equivalent amount of other Schedule I 
or II Stimulants);
1.5 KG or more of Cocaine Base;
30 KG or more of PCP, or 3 KG or more of PCP (actual);
30 KG or more of Methamphetamine, or 3 KG or more of Methamphetamine 
(actual), or 3 KG or more of `Ice';
300 G or more of LSD (or the equivalent amount of other Schedule I or 
II Hallucinogens);
12 KG or more of Fentanyl;
3 KG or more of a Fentanyl Analogue;
30,000 KG or more of Marihuana;
6,000 KG or more of Hashish;
600 KG or more of Hashish Oil.''.

    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 16 by deleting ``40'' and inserting in lieu thereof 
``38'', by deleting ``35'' wherever it appears and inserting in lieu 
thereof in each instance ``33'', and by deleting ``4 levels'' and 
inserting in lieu thereof ``2 levels''.
    The Commentary to Sec. 2D1.6 captioned ``Application Note'' is 
amended in Note 1 by deleting ``(Sec. 2D1.1(c)(16))'' and inserting in 
lieu thereof ``(Sec. 2D1.1(c)(14))'', and by deleting 
``(Sec. 2D1.1(c)(19))'' and inserting in lieu thereof 
``(Sec. 2D1.1(c)(17))''.
    Reason for Amendment: This amendment sets the upper limit of the 
Drug Quantity Table in Sec. 2D1.1 at level 38. The Commission has 
determined that the extension of the Drug Quantity Table above level 38 
for quantity itself is not required to ensure adequate punishment given 
that organizers, leaders, managers, and supervisors of such offenses 
will receive a 4-, 3-, or 2-level enhancement for their role in the 
offense, and any participant will receive an additional 2-level 
enhancement if a dangerous weapon is possessed in the offense.
    4. Amendment: The Commentary to Sec. 4B1.1 captioned ``Application 
Notes'' is amended in Note 2 by deleting the first sentence and 
inserting in lieu thereof:

```Offense Statutory Maximum,' for the purposes of this guideline, 
refers to the maximum term of imprisonment authorized for the offense 
of conviction that is a crime of violence or controlled substance 
offense, not including any increase in that maximum term under a 
sentencing enhancement provision that applies because of the 
defendant's prior criminal record (such sentencing enhancement 
provisions are contained, for example, in 21 U.S.C. 841(b)(1)(A), 
(b)(1)(B), (b)(1)(C), and (b)(1)(D)). For example, where the statutory 
maximum term of imprisonment under 21 U.S.C. Sec. 841(b)(1)(C) is 
increased from twenty years to thirty years because the defendant has 
one or more qualifying prior drug convictions, the `Offense Statutory 
Maximum' for the purposes of this guideline is twenty years and not 
thirty years.''.
    Reason for Amendment: This amendment defines the term ``offense 
statutory maximum'' in Sec. 4B1.1 to mean the statutory maximum prior 
to any enhancement based on prior criminal record (i.e., an enhancement 
of the statutory maximum sentence that itself was based upon the 
defendant's prior criminal record would not be used in determining the 
offense level under this guideline). This rule avoids unwarranted 
double counting as well as unwarranted disparity associated with 
variations in the exercise of prosecutional discretion in seeking 
enhanced penalties based on prior convictions.
    It is noted that when the instruction to the Commission that 
underlies Sec. 4B1.1 (28 U.S.C. 994(h)) was enacted by the Congress in 
1984, the enhanced maximum sentences provided for recidivist drug 
offenders (e.g., under 21 U.S.C. 841) did not exist.
    5. Amendment: The Commentary to Sec. 5G1.2 is amended in the fourth 
paragraph by deleting ``3D1.2'' and inserting in lieu thereof 
``3D1.1'', and by inserting the following additional sentence at the 
end:
    ``Note, however, that even in the case of a consecutive term of 
imprisonment imposed under subsection (a), any term of supervised 
release imposed is to run concurrently with any other term of 
supervised release imposed. See 18 U.S.C. 3624(e).''.
    Reason for Amendment: This amendment revises the Commentary to 
Sec. 5G1.2 to clarify that the Commission's interpretation is that 18 
U.S.C. 3624(e) requires multiple terms of supervised release to run 
concurrently in all cases. This interpretation is in accord with the 
view stated in United States v. Gullickson, 982 F.2d 1231, 1236 (8th 
Cir. 1993). In contrast, two courts of appeals have cited the current 
commentary as supporting the view that, notwithstanding the language in 
18 U.S.C. 3624(e) stating that terms of supervised release run 
concurrently, a court may order that supervised release terms run 
consecutively under certain circumstances. See United States v. 
Shorthouse, 7 F.3d 149 (9th Cir. 1993); United States v. Maxwell, 966 
F.2d 545, 551 (10th Cir. 1992).
    6. Amendment: The Introductory Commentary to Chapter Five, Part H, 
is amended in the second paragraph by inserting the following 
additional sentence at the end:
    ``Furthermore, although these factors are not ordinarily relevant 
to the determination of whether a sentence should be outside the 
applicable guideline range, they may be relevant to this determination 
in exceptional cases. See Sec. 5K2.0 (Grounds for Departure).''.
    Section 5K2.0 is amended by inserting the following additional 
paragraph as the fourth paragraph:
    ``An offender characteristic or other circumstance that is not 
ordinarily relevant in determining whether a sentence should be outside 
the applicable guideline range may be relevant to this determination if 
such characteristic or circumstance is present to an unusual degree and 
distinguishes the case from the `heartland' cases covered by the 
guidelines in a way that is important to the statutory purposes of 
sentencing.''.
    Section 5K2.0 is amended by inserting the following commentary at 
the end:

Commentary

    The last paragraph of this policy statement sets forth the 
conditions under which an offender characteristic or other circumstance 
that is not ordinarily relevant to a departure from the applicable 
guideline range may be relevant to this determination. The Commission 
does not foreclose the possibility of an extraordinary case that, 
because of a combination of such characteristics or circumstances, 
differs significantly from the `heartland' cases covered by the 
guidelines in a way that is important to the statutory purposes of 
sentencing, even though none of the characteristics or circumstances 
individually distinguishes the case. However, the Commission believes 
that such cases will be extremely rare.
    In the absence of a characteristic or circumstance that 
distinguishes a case as sufficiently atypical to warrant a sentence 
different from that called for under the guidelines, a sentence outside 
the guideline range is not authorized. See 18 U.S.C. 3553(b). For 
example, dissatisfaction with the available sentencing range or a 
preference for a different sentence than that authorized by the 
guidelines is not an appropriate basis for a sentence outside the 
applicable guideline range.''.
    Reason for Amendment: This amendment provides guidance as to when 
an offender characteristic or other circumstance (or combination of 
such characteristics or circumstances) that is not ordinarily relevant 
to a determination of whether a sentence should be outside the 
applicable guideline range may be relevant to this determination. Such 
guidance should enhance consistency in decisions regarding guideline 
departures.

[FR Doc. 94-10782 Filed 5-4-94; 8:45 am]
BILLING CODE BAC2210-40-P