[Federal Register Volume 59, Number 198 (Friday, October 14, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25426]


[[Page Unknown]]

[Federal Register: October 14, 1994]


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UNITED STATES SENTENCING COMMISSION

 

Revisions to the Sentencing Guidelines for the United States 
Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of (1) promulgation of a temporary, emergency sentencing 
guideline amendment limiting the applicability of statutory minimum 
sentences in certain cases; and (2) final action regarding 
retroactivity of amendments.

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SUMMARY: The Sentencing Commission hereby gives notice of the following 
actions: (1) Pursuant to its authority under section 80001(b) of the 
Violent Crime Control and Law Enforcement Act of 1994, section 21(a) of 
the Sentencing Act of 1987, and section 217(a) of the Comprehensive 
Crime Control Act of 1984 (28 U.S.C. 994 (a) and (p)), the Commission 
has promulgated a new guideline, Sec. 5C1.2 (Limitation on Application 
of Statutory Minimum Sentences in Certain Cases), with accompanying 
commentary, to assist federal courts in applying section 3553(f) of 
title 18 (a statutory provision enacted by section 80001 of the Violent 
Crime Control and Law Enforcement Act of 1994) and has made conforming 
amendments to the commentary of Secs. 2D1.1 and 2D2.1; and (2) pursuant 
to its authority under section 217(a) of the Comprehensive Crime 
Control Act of 1984 (28 U.S.C. 994 (a) and (u)), the Commission has 
reviewed amendments previously submitted to Congress that may result in 
a lower guideline range and has designated two such amendments for 
inclusion in policy statement Sec. 1B1.10 (Retroactivity of Amended 
Guideline Range).

DATES: The Commission has specified an effective date of September 23, 
1994, for the amendment creating Sec. 5C1.2 and the conforming 
commentary amendments to Secs. 2D1.1 and 2D2.1. It has specified an 
effective date of November 1, 1994, for the amendment to Sec. 1B1.10.

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

SUPPLEMENTARY INFORMATION: General Guideline Amendment Authority--The 
United States Sentencing Commission is an independent agency in the 
judicial branch of the U.S. Government. The Commission is empowered by 
28 U.S.C. 994(a) to promulgate sentencing guidelines and policy 
statements for federal sentencing courts. Sections 994 (o) and (p) of 
title 28, United States Code, further direct the Commission to review 
and revise periodically guidelines and policy statements previously 
promulgated, and require that guideline amendments be submitted to 
Congress for review. Absent action of the Congress to the contrary, 
guideline amendments become effective following 180 days of 
Congressional review on the date specified by the Commission. Pursuant 
to this general amendment authority, on April 28, 1994, the Commission 
submitted to Congress for review six amendments to the sentencing 
guidelines, policy statements, and commentary. Unless Congress 
legislates to the contrary, these amendments will take effect November 
1, 1994. See 59 F.R. 23608.
    Retroactivity--Pursuant to its authority under 28 U.S.C. 994(u), 
the Commission has reviewed the aforementioned amendments to determine 
which, if any, of the amendments that may result in a lower guideline 
range for an affected class of defendants should be made retroactive 
with respect to previously sentenced defendants. The Commission has 
determined that one such amendment, designated as amendment 506 
(pertaining to the definition of ``offense statutory maximum'' for 
purposes of determining the offense level under Sec. 4B1.1, the career 
offender guideline), and one previously promulgated amendment, 
designated as amendment 371 (creating additional guidelines 
Secs. 2D1.11, 2D1.12, and 2D1.13 with conforming commentary pertaining 
to violations involving listed chemicals, flasks, and certain machines 
used in the manufacture of controlled substances), should be made 
retroactive. This action is accomplished by amending Policy Statement 
Sec. 1B1.10, effective November 1, 1994, to list these two amendments 
as eligible for retroactive application by courts when considering a 
motion to modify an imposed term of imprisonment pursuant to 18 U.S.C. 
3582(c)(2).
    Emergency Amendment Action--Section 80001(b)(2) of the Violent 
Crime Control and Law Enforcement Act of 1994 reestablished, for a 
limited purpose, the Commission's authority under section 21(a) of the 
Sentencing Act of 1987 to promulgate temporary, emergency guidelines or 
amend existing guidelines. Unlike amendments issued pursuant to 28 
U.S.C. 994(p), temporary amendments promulgated by the Commission are 
not required to be submitted to Congress for review prior to their 
taking effect; nor is the Commission required to publish proposed 
temporary, emergency guideline amendments prior to promulgation, though 
it may do so if circumstances permit. Emergency amendments are 
temporary (i.e., unless submitted to Congress as regular amendments in 
the next regular amendment report, they expire upon the disposition of 
that report).
    Pursuant to this limited-purpose authorization of emergency 
amendment authority, the Commission has implemented the instruction in 
section 80001(b)(1) of the Violent Crime Control and Law Enforcement 
Act of 1994 by promulgating a new guideline designated as Sec. 5C1.2 
(Limitation on Applicability of Statutory Minimum Sentences in Certain 
Cases) with accompanying commentary. Conforming commentary amendments 
to Secs. 2D1.1 and 2D2.1 have also been made.
    In carrying out this Congressional directive, the Commission was 
required to construe and implement the specific language of section 
80001(b)(1)(B). That provision instructs the Commission to provide that 
a defendant with a five-year mandatory minimum sentence who meets the 
criteria for an exemption from such mandatory minimum sentence will 
receive a guideline range that has a minimum of at least 24 months of 
imprisonment. (Note that this instruction to the Commission does not 
prohibit a court from granting a downward departure from this guideline 
if the court finds sufficient mitigating circumstances.) In general, 
under the guidelines currently in effect, the guideline range for the 
least culpable category of affected defendant will be at least 30-37 
months. (A Chapter Two offense level of at least 26, minus 4 levels for 
a minimal role and 3 levels for acceptance of responsibility, results 
in a minimum offense level of 19. For Criminal History Category I, the 
applicable guideline range is 30-37 months.) The Commission is aware 
that there may be rare exceptions in which such a defendant may receive 
an offense level that results in a guideline range with a minimum of 
less than 24 months. For example, if the defendant's offense involves 
LSD on a carrier medium, the court will apply the Commission's 
provision that each LSD dose is to be treated as equivalent to 0.4 
milligram per dose for guideline calculations. If the court uses the 
entire weight of the carrier medium for the purposes of determining the 
applicability of the mandatory minimum sentence and the defendant 
nevertheless qualifies under 18 U.S.C. 3553(f) and Sec. 5C1.2 of the 
sentencing guidelines for an exemption from such mandatory minimum, the 
situation could arise in which the defendant is subject to a guideline 
range with a minimum of less than 24 months.
    The Commission believes that it has the authority to authorize such 
minor variations from the literal language of the Congressional 
instruction to ensure consistency with the guidelines as a whole. In 
the Conference Report accompanying this legislation, the Congress 
expressly noted that the Commission should interpret Congressional 
instructions to the Commission in a manner that ``shall assure 
reasonable consistency with other guidelines'' and ``take into account 
any mitigating circumstances which might justify exceptions.'' H.R. 
Conf. Rep. No. 711, 103d Cong., 2d Sess. 388 (title IX) (1994); see 
also id., sec. 280003 at 312 (directing Commission to carry out a 
specific instruction regarding sentencing enhancements for hate crimes 
in a manner to ensure reasonable consistency with other guidelines). 
The Commission similarly believes its interpretation of section 
80001(b)(1)(B), within the overall context of a clearly ameliorative 
sentencing provision for qualified defendants, is consistent with past 
Congressional directives to the Commission and Congress's rationale for 
employing such directives as a more flexible means of effecting 
sentencing policy in particular situations. For example, under 28 
U.S.C. 994(h), Congress directed the Commission to create specific 
provisions within the guidelines for sentencing certain repeat 
offenders. The Commission implemented this directive through 
Secs. 4B1.1 and 4B1.2. Legislative history accompanying this directive 
indicates that a principal Congressional consideration in choosing to 
employ an instruction to the Commission in lieu of a legislated 
mandatory minimum (the approach taken in an earlier version of the 
legislation) was to afford the Commission a measure of flexibility to 
interpret and implement the instruction in a way that best harmonizes 
career offender sentencing policy with the guidelines as a whole, 
thereby avoiding anomalous results. See S. Rep. No. 225, 98th Cong. 1st 
Sess. 175 (1983). So, too, in this case, the Commission has sought to 
implement the Congressional instruction in section 80001(b)(1)(B) in a 
manner that best ``assure[s] reasonable consistency with other 
guidelines * * * and take[s] into account * * * mitigating 
circumstances which might justify exceptions.'' H.R. Conf. Rep. No. 
711, supra.
    Continuing Guidelines Review--In connection with its ongoing review 
of the Guidelines Manual, the Commission continues to welcome comment 
on any aspect of the sentencing guidelines, policy statements, and 
official commentary. Comments should be sent to: The United States 
Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, South 
Lobby, Washington, D.C. 20002-8002, Attn: Office of Communications.

    Authority: Section 217(a) of the Comprehensive Crime Control Act 
of 1984 (28 U.S.C. 994(a)).
William W. Wilkins, Jr.
Chairman.

Additional Guideline, Amendments to Commentary and Policy Statement

    1. Amendment: Chapter Five, Part C, is amended by inserting the 
following additional guideline with accompanying commentary:

    ``Sec. 5C1.2. Limitation on Applicability of Statutory Minimum 
Sentences in Certain Cases
    In the case of an offense under 21 U.S.C. 841, 844, 846, 960, or 
963, the court shall impose a sentence in accordance with the 
applicable guidelines without regard to any statutory minimum 
sentence, if the court finds that the defendant meets the criteria 
in 18 U.S.C. 3553(f)(1)-(5) set forth verbatim below:
    (1) The defendant does not have more than 1 criminal history 
point, as determined under the sentencing guidelines;
    (2) The defendant did not use violence or credible threats of 
violence or possess a firearm or other dangerous weapon (or induce 
another participant to do so) in connection with the offense;
    (3) The offense did not result in death or serious bodily injury 
to any person;
    (4) The defendant was not an organizer, leader, manager, or 
supervisor of others in the offense, as determined under the 
sentencing guidelines and was not engaged in a continuing criminal 
enterprise, as defined in 21 U.S.C. 848; and
    (5) Not later than the time of the sentencing hearing, the 
defendant has truthfully provided to the Government all information 
and evidence the defendant has concerning the offense or offenses 
that were part of the same course of conduct or of a common scheme 
or plan, but the fact that the defendant has no relevant or useful 
other information to provide or that the Government is already aware 
of the information shall not preclude a determination by the court 
that the defendant has complied with this requirement.

Commentary

Application Notes

    1. `More than 1 criminal history point, as determined under the 
sentencing guidelines,' as used in subdivision (1), means more than one 
criminal history point as determined under Sec. 4A1.1 (Criminal History 
Category).
    2. `Dangerous weapon' and `firearm,' as used in subdivision (2), 
and `serious bodily injury,' as used in subdivision (3), are defined in 
the Commentary to Sec. 1B1.1 (Application Instructions).
    3. `Offense,' as used in subdivisions (2-(4), and `offense or 
offenses that were part of the same course of conduct or of a common 
scheme or plan,' as used in subdivision (5), mean the offense of 
conviction and all relevant conduct.
    4. Consistent with Sec. 1B1.3 (Relevant Conduct), the term 
`defendant,' as used in subdivision (2), limits the accountability of 
the defendant to his own conduct and conduct that he aided or abetted, 
counseled, commanded, induced, procured, or willfully caused.
    5. `Organizer, leader, manager, or supervisor of others in the 
offense, as determined under the sentencing guidelines,' as used in 
subdivision (4), means a defendant who receives an adjustment for an 
aggravating role under Sec. 3B1.1 (Aggravating Role).
    6. `Engaged in a continuing criminal enterprise,' as used in 
subdivision (4), is defined in 21 U.S.C. 848(c). As a practical matter, 
it should not be necessary to apply this prong of subdivision (4) 
because (i) this section does not apply to a conviction under 21 U.S.C. 
848, and (ii) any defendant who `engaged in a continuing criminal 
enterprise' but is convicted of an offense to which this section 
applies will be a `leader, organizer, manager, or supervisor of others 
in the offense.'
    7. Information disclosed by the defendant with respect to 
subdivision (5) may be considered in determining the applicable 
guideline range, except where the use of such information is restricted 
under the provisions of Sec. 1B1.8 (Use of Certain Information). That 
is, subdivision (5) does not provide an independent basis for 
restricting the use of information disclosed by the defendant.
    8. Under 18 U.S.C. 3553(f), prior to its determination, the court 
shall afford the government an opportunity to make a recommendation. 
See also Rule 32(a)(1), Fed. R. Crim. P.

Background

    This section sets forth the relevant provisions of 18 U.S.C. 
3553(f), as added by section 80001(a) of the Violent Crime Control and 
Law Enforcement Act of 1994, which limit the applicability of statutory 
minimum sentences in certain cases. Under the authority of section 
80001(b) of that Act, the Commission has promulgated application notes 
to provide guidance in the application of 18 U.S.C. 3553(f). See also 
H. Rep. No. 103-460, 103d Cong., 2d Sess. 3 (1994) (expressing intent 
to foster greater coordination between mandatory minimum sentencing and 
the sentencing guideline system).''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 7 by inserting the following additional sentences at 
the end:

    In addition, 18 U.S.C. 3553(f) provides an exception to the 
applicability of mandatory minimum sentences in certain cases. See 
Sec. 5C1.2 (Limitation of Applicability of Statutory Minimum 
Penalties in Certain Cases).

    .The Commentary to Sec. 2D2.1 captioned ``Background'' is amended 
in the first paragraph by inserting ``(statutory)'' immediately 
following ``Mandatory''; and by deleting ``Sec. 5G1.1(b)'' and 
inserting in lieu thereof:

    See Sec. 5G1.1(b). Note, however, that 18 U.S.C. 3553(f) 
provides an exception to the applicability of mandatory minimum 
sentences in certain cases. See Sec. 5C1.2 (Limitation on 
Applicability of Statutory Minimum Sentences in Certain Cases).

Reason for Amendment

    This amendment is in response to section 80001(b) which authorizes 
the Commission to issue amended guidelines and policy statements to 
assist the courts in applying 18 U.S.C. 3553(f). The effective date of 
this amendment is September 23, 1994.

2. Amendment

    Section 1B1.10(c)(formerly subsection (d)) is amended by inserting 
``371,'' immediately before ``379''; and by deleting ``and 499'' and 
inserting in lieu thereof ``499, and 506''.

Reason for Amendment

    This amendment expands the listing in Sec. 1B1.10(c) (formerly 
subsection (d)) to implement the directive in 28 U.S.C. 994(u) in 
respect to guideline amendments that may be considered for retroactive 
application. The amendment numbers listed are those as they appear in 
Appendix C of the Guidelines Manual.

[FR Doc. 94-25426 Filed 10-13-94; 8:45 am]
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