[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Notices]
[Pages 62289-62292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29514]



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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 final action regarding amendments to sentencing 
guidelines and policy statements effective November 1, 1995.

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SUMMARY: The Sentencing Commission hereby gives notice of several 
amendments to policy statements and commentary made 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 submitted to Congress on May 1, 1995, that may result in a 
lower guideline range and has designated one such amendment for 
inclusion in policy statement Sec. 1B1.10 (Retroactivity of Amended 
Guideline Range). An earlier amendment (effective November 1, 1994) was 
also designated for inclusion in policy statement Sec. 1B1.10. Two 
amendments, previously passed by the Commission, concerning crack 
cocaine and money laundering were disapproved by Congress (Pub. L. 104-
38, 109 Stat. 34 (Oct. 30, 1995)).

DATES: The effective date of these policy statement and commentary 
amendments is November 1, 1995.

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

SUPPLEMENTARY INFORMATION: 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 periodically review and revise 
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 (i.e., November 1, 1995). Unlike new 
guidelines and amendments to existing guidelines issued pursuant to 28 
U.S.C. 994(a) and (p), sentencing policy statements, commentary, and 
amendments thereto promulgated by the Commission are not required to be 
submitted to Congress for 180 days' review prior to their taking 
effect.
    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: United States Sentencing Commission, One Columbus Circle, 
N.E., Suite 2-500, Washington, DC 20002-8002, Attn: Office of 
Communications.

    Authority: Section 217(a) of the Comprehensive Crime Control Act 
of 1984 (28 U.S.C. 994(a)).
Richard P. Conaboy,
Chairman.

Additional Revisions to the Guidelines Manual

    1. The replacement guideline for Sec. 2H1.1 (see 60 FR 25082 
(1995)) is amended by deleting Application Note 1 of the Commentary as 
follows:
    ``1. `Offense guideline applicable to any underlying offense' means 
the offense guideline applicable to any conduct established by the 
offense of conviction that constitutes an offense under federal, state, 
or local law (other than an offense that is itself covered under 
Chapter Two, Part H, Subpart 1).
    In certain cases, conduct set forth in the count of conviction may 
constitute more than one underlying offense (e.g., two instances of 
assault, or one instance of assault and one instance of arson). In such 
cases, determine the number and nature of underlying offenses by 
applying the procedure set forth in Application Note 5 of Sec. 1B1.2 
(Applicable Guidelines). If the Chapter Two offense level for any of 
the underlying offenses under subsection (a)(1) is the same as, or 
greater than, the alternative base offense level under subsection 
(a)(2), (3), or (4), as applicable, use subsection (a)(1) and treat 
each underlying offense as if contained in a separate count of 
conviction. Otherwise, use subsection (a)(2), (3), or (4), as 
applicable, to determine the base offense level.'',

and inserting in lieu thereof:

    ``1. `Offense guideline applicable to any underlying offense' means 
the offense guideline applicable to any conduct established by the 
offense of conviction that constitutes an offense under federal, state, 
or local law (other than an offense that is itself covered under 
Chapter Two, Part H, Subpart 1).
    In certain cases, conduct set forth in the count of conviction may 
constitute more than one underlying offense (e.g., two instances of 
assault, or one instance of assault and one instance of arson). In such 
cases, use the following comparative procedure to determine the 
applicable base offense level: (i) determine the underlying offenses 
encompassed within the count of conviction as if the defendant had been 
charged with a conspiracy to commit multiple offenses. See Application 
Note 5 of Sec. 1B1.2 (Applicable Guidelines); (ii) determine the 
Chapter Two offense level (i.e., the base offense level, specific 
offense characteristics, cross references, and special instructions) 
for each such underlying offense; and (iii) compare each of the Chapter 
Two offense levels determined above with the alternative base offense 
level under subsection (a)(2), (3), or (4). The determination of the 
applicable alternative base offense level is to be based on the entire 
conduct underlying the count of conviction (i.e., the conduct taken as 
a whole). Use the alternative base offense 

[[Page 62290]]
level only if it is greater than each of the Chapter Two offense levels 
determined above. Otherwise, use the Chapter Two offense levels for 
each of the underlying offenses (with each underlying offense treated 
as if contained in a separate count of conviction). Then apply 
subsection (b) to the alternative base offense level, or to the Chapter 
Two offense levels for each of the underlying offenses, as 
appropriate.''.
    This amendment clarifies the operation of this guideline in cases 
involving multiple underlying offenses.
    2. Section 5G1.3 is amended by deleting:
    ``(c) (Policy Statement) In any other case, the sentence for the 
instant offense shall be imposed to run consecutively to the prior 
undischarged term of imprisonment to the extent necessary to achieve a 
reasonable incremental punishment for the instant offense.'',

and inserting in lieu thereof:

    ``(c) (Policy Statement) In any other case, the sentence for the 
instant offense may be imposed to run concurrently, partially 
concurrently, or consecutively to the prior undischarged term of 
imprisonment to achieve a reasonable punishment for the instant 
offense.''.
    The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``Consecutive sentence--subsection (a) 
cases.'' immediately before ``Under''; and by deleting ``where the 
instant offense (or any part thereof)'' and inserting in lieu thereof 
``when the instant offense''.
    The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is 
amended by deleting:
    ``2. Subsection (b) (which may apply only if subsection (a) does 
not apply), addresses cases in which the conduct resulting in the 
undischarged term of imprisonment has been fully taken into account 
under Sec. 1B1.3 (Relevant Conduct) in determining the offense level 
for the instant offense. This can occur, for example, where a defendant 
is prosecuted in both federal and state court, or in two or more 
federal jurisdictions, for the same criminal conduct or for different 
criminal transactions that were part of the same course of conduct.
    When a sentence is imposed pursuant to subsection (b), the court 
should adjust for any term of imprisonment already served as a result 
of the conduct taken into account in determining the sentence for the 
instant offense. Example: The defendant has been convicted of a federal 
offense charging the sale of 30 grams of cocaine. Under Sec. 1B1.3 
(Relevant Conduct), the defendant is held accountable for the sale of 
an additional 15 grams of cocaine that is part of the same course of 
conduct for which the defendant has been convicted and sentenced in 
state court (the defendant received a nine-month sentence of 
imprisonment, of which he has served six months at the time of 
sentencing on the instant federal offense). The guideline range 
applicable to the defendant is 10-16 months (Chapter Two offense level 
of 14 for sale of 45 grams of cocaine; 2-level reduction for acceptance 
of responsibility; final offense level of 12; Criminal History Category 
I). The court determines that a sentence of 13 months provides the 
appropriate total punishment. Because the defendant has already served 
six months on the related state charge, a sentence of seven months, 
imposed to run concurrently with the remainder of the defendant's state 
sentence, achieves this result. For clarity, the court should note on 
the Judgment in a Criminal Case Order that the sentence imposed is not 
a departure from the guidelines because the defendant has been credited 
for guideline purposes under Sec. 5G1.3(b) with six months served in 
state custody.
    3. Where the defendant is subject to an undischarged term of 
imprisonment in circumstances other than those set forth in subsections 
(a) or (b), subsection (c) applies and the court shall impose a 
consecutive sentence to the extent necessary to fashion a sentence 
resulting in a reasonable incremental punishment for the multiple 
offenses. In some circumstances, such incremental punishment can be 
achieved by the imposition of a sentence that is concurrent with the 
remainder of the unexpired term of imprisonment. In such cases, a 
consecutive sentence is not required. To the extent practicable, the 
court should consider a reasonable incremental penalty to be a sentence 
for the instant offense that results in a combined sentence of 
imprisonment that approximates the total punishment that would have 
been imposed under Sec. 5G1.2 (Sentencing on Multiple Counts of 
Conviction) had all of the offenses been federal offenses for which 
sentences were being imposed at the same time. It is recognized that 
this determination frequently will require an approximation. Where the 
defendant is serving a term of imprisonment for a state offense, the 
information available may permit only a rough estimate of the total 
punishment that would have been imposed under the guidelines. Where the 
offense resulting in the undischarged term of imprisonment is a federal 
offense for which a guideline determination has previously been made, 
the task will be somewhat more straightforward, although even in such 
cases a precise determination may not be possible.
    It is not intended that the above methodology be applied in a 
manner that unduly complicates or prolongs the sentencing process. 
Additionally, this methodology does not, itself, require the court to 
depart from the guideline range established for the instant federal 
offense. Rather, this methodology is meant to assist the court in 
determining the appropriate sentence (e.g., the appropriate point 
within the applicable guideline range, whether to order the sentence to 
run concurrently or consecutively to the undischarged term of 
imprisonment, or whether a departure is warranted). Generally, the 
court may achieve an appropriate sentence through its determination of 
an appropriate point within the applicable guideline range for the 
instant federal offense, combined with its determination of whether 
that sentence will run concurrently or consecutively to the 
undischarged term of imprisonment.
    Illustrations of the Application of Subsection (c):
    (A) The guideline range applicable to the instant federal offense 
is 24-30 months. The court determines that a total punishment of 36 
months' imprisonment would appropriately reflect the instant federal 
offense and the offense resulting in the undischarged term of 
imprisonment. The undischarged term of imprisonment is an indeterminate 
sentence of imprisonment with a 60-month maximum. At the time of 
sentencing on the instant federal offense, the defendant has served ten 
months on the undischarged term of imprisonment. In this case, a 
sentence of 26 months' imprisonment to be served concurrently with the 
remainder of the undischarged term of imprisonment would (1) be within 
the guideline range for the instant federal offense, and (2) achieve an 
appropriate total punishment (36 months).
    (B) The applicable guideline range for the instant federal offense 
is 24-30 months. The court determines that a total punishment of 36 
months' imprisonment would appropriately reflect the instant federal 
offense and the offense resulting in the undischarged term of 
imprisonment. The undischarged term of imprisonment is a six-month 
determinate sentence. At the time of sentencing on the instant federal 
offense, the defendant has served three months on the undischarged term 
of imprisonment. In this case, a sentence of 30 months' imprisonment to 
be served 

[[Page 62291]]
consecutively to the undischarged term of imprisonment would (1) be 
within the guideline range for the instant federal offense, and (2) 
achieve an appropriate total punishment (36 months).
    (C) The applicable guideline range for the instant federal offense 
is 24-30 months. The court determines that a total punishment of 60 
months' imprisonment would appropriately reflect the instant federal 
offense and the offense resulting in the undischarged term of 
imprisonment. The undischarged term of imprisonment is a 12-month 
determinate sentence. In this case, a sentence of 30 months' 
imprisonment to be served consecutively to the undischarged term of 
imprisonment would be the greatest sentence imposable without departure 
for the instant federal offense.
    (D) The applicable guideline range for the instant federal offense 
is 24-30 months. The court determines that a total punishment of 36 
months' imprisonment would appropriately reflect the instant federal 
offense and the offense resulting in the undischarged term of 
imprisonment. The undischarged term of imprisonment is an indeterminate 
sentence with a 60-month maximum. At the time of sentencing on the 
instant federal offense, the defendant has served 22 months on the 
undischarged term of imprisonment. In this case, a sentence of 24 
months to be served concurrently with the remainder of the undischarged 
term of imprisonment would be the lowest sentence imposable without 
departure for the instant federal offense.
    4. If the defendant was on federal or state probation, parole, or 
supervised release at the time of the instant offense, and has had such 
probation, parole, or supervised release revoked, the sentence for the 
instant offense should be imposed to be served consecutively to the 
term imposed for the violation of probation, parole, or supervised 
release in order to provide an incremental penalty for the violation of 
probation, parole, or supervised release (in accord with the policy 
expressed in Secs. 7B1.3 and 7B1.4)'',

and inserting in lieu thereof:

    ``2. Adjusted concurrent sentence--subsection (b) cases. When a 
sentence is imposed pursuant to subsection (b), the court should adjust 
the sentence for any period of imprisonment already served as a result 
of the conduct taken into account in determining the guideline range 
for the instant offense if the court determines that period of 
imprisonment will not be credited to the federal sentence by the Bureau 
of Prisons. Example: The defendant is convicted of a federal offense 
charging the sale of 30 grams of cocaine. Under Sec. 1B1.3 (Relevant 
Conduct), the defendant is held accountable for the sale of an 
additional 15 grams of cocaine, an offense for which the defendant has 
been convicted and sentenced in state court. The defendant received a 
nine-month sentence of imprisonment for the state offense and has 
served six months on that sentence at the time of sentencing on the 
instant federal offense. The guideline range applicable to the 
defendant is 10-16 months (Chapter Two offense level of 14 for sale of 
45 grams of cocaine; 2-level reduction for acceptance of 
responsibility; final offense level of 12; Criminal History Category 
I). The court determines that a sentence of 13 months provides the 
appropriate total punishment. Because the defendant has already served 
six months on the related state charge as of the date of sentencing on 
the instant federal offense, a sentence of seven months, imposed to run 
concurrently with the three months remaining on the defendant's State 
sentence, achieves this result. For clarity, the court should note on 
the Judgment in a Criminal Case Order that the sentence imposed is not 
a departure from the guideline range because the defendant has been 
credited for guideline purposes under Sec. 5G1.3(b) with six months 
served in state custody that will not be credited to the federal 
sentence under 18 U.S.C. Sec. 3585(b).
    3. Concurrent or consecutive sentence--subsection (c) cases. In 
circumstances not covered under subsection (a) or (b), subsection (c) 
applies. Under this subsection, the court may impose a sentence 
concurrently, partially concurrently, or consecutively. To achieve a 
reasonable punishment and avoid unwarranted disparity, the court should 
consider the factors set forth in 18 U.S.C. Sec. 3584 (referencing 18 
U.S.C. Sec. 3553(a)) and be cognizant of:
    (a) The type (e.g., determinate, indeterminate/parolable) and 
length of the prior undischarged sentence;
    (b) The time served on the undischarged sentence and the time 
likely to be served before release;
    (c) The fact that the prior undischarged sentence may have been 
imposed in state court rather than federal court, or at a different 
time before the same or different federal court; and
    (d) Any other circumstance relevant to the determination of an 
appropriate sentence for the instant offense.
    4. Partially concurrent sentence. In some cases under subsection 
(c), a partially concurrent sentence may achieve most appropriately the 
desired result. To impose a partially concurrent sentence, the court 
may provide in the Judgment in a Criminal Case Order that the sentence 
for the instant offense shall commence (A) when the defendant is 
released from the prior undischarged sentence, or (B) on a specified 
date, whichever is earlier. This order provides for a fully consecutive 
sentence if the defendant is released on the undischarged term of 
imprisonment on or before the date specified in the order, and a 
partially concurrent sentence if the defendant is not released on the 
undischarged term of imprisonment by that date.
    5. Complex situations. Occasionally, the court may be faced with a 
complex case in which a defendant may be subject to multiple 
undischarged terms of imprisonment that seemingly call for the 
application of different rules. In such a case, the court may exercise 
its discretion in accordance with subsection (c) to fashion a sentence 
of appropriate length and structure it to run in any appropriate manner 
to achieve a reasonable punishment for the instant offense.
    6. Revocations. If the defendant was on federal or state probation, 
parole, or supervised release at the time of the instant offense, and 
has had such probation, parole, or supervised release revoked, the 
sentence for the instant offense should be imposed to run consecutively 
to the term imposed for the violation of probation, parole, or 
supervised release in order to provide an incremental penalty for the 
violation of probation, parole, or supervised release. See Sec. 7B1.3 
(Revocation of Probation or Supervised Release) (setting forth a policy 
that any imprisonment penalty imposed for violating probation or 
supervised release should be consecutive to any sentence of 
imprisonment being served or subsequently imposed).''.
    The Commentary to Sec. 5G1.3 captioned ``Background'' is amended by 
deleting:
    ``This guideline provides direction to the court when a term of 
imprisonment is imposed on a defendant who is already subject to an 
undischarged term of imprisonment. See 18 U.S.C. Sec. 3584. Except in 
the cases in which subsection (a) applies, this guideline is intended 
to result in an appropriate incremental punishment for the instant 
offense that most nearly approximates the sentence that would have been 
imposed had all the sentences been imposed at the same time.'',

and inserting in lieu thereof:

    ``In a case in which a defendant is subject to an undischarged 
sentence of imprisonment, the court generally has 

[[Page 62292]]
authority to impose an imprisonment sentence on the current offense to 
run concurrently with or consecutively to the prior undischarged term. 
18 U.S.C. Sec. 3584(a). Exercise of that authority, however, is 
predicated on the court's consideration of the factors listed in 18 
U.S.C. Sec. 3553(a), including any applicable guidelines or policy 
statements issued by the Sentencing Commission.''.
    This is a two-part amendment. First, this amendment clarifies the 
application of subsections (a) and (b) of this guideline. Second, in 
circumstances covered by the policy statement in subsection (c), this 
amendment affords the sentencing court additional flexibility to 
impose, as appropriate, a consecutive, concurrent, or partially 
concurrent sentence in order to achieve a reasonable punishment for the 
instant offense.
    Authority to impose a partially concurrent sentence is found in the 
Sentencing Reform Act of 1984 (SRA). In enacting 28 U.S.C. 
Sec. 994(l)(1), Congress contemplated that 18 U.S.C. Sec. 3584 would 
allow imposition of partially concurrent sentences, in addition to 
fully concurrent or consecutive sentences. (``It is the Committee's 
intent that, to the extent feasible, the sentences for each of the 
multiple offenses be determined separately and the degree to which they 
should overlap be specified.'') S. Rep. No. 225, 98th Cong., 1st Sess. 
177 (1983). Without the ability to fashion such a sentence, the 
instruction to the Commission in 28 U.S.C. Sec. 994(l)(1) to provide a 
reasonable incremental penalty for additional offenses could not be 
implemented successfully in certain situations, particularly when the 
defendant's release date on an undischarged term of imprisonment cannot 
be determined readily in advance (e.g., in the case of an indeterminate 
sentence subject to parole release).
    Prior to the SRA, only the Bureau of Prisons had the authority to 
commence a federal sentence prior to the defendant's release from 
imprisonment on a state sentence. See, e.g., United States v. Segal, 
549 F.2d 1293, 1301 (9th Cir. 1977). SRA legislative history pertaining 
to 18 U.S.C. Sec. 3584 indicates that this new section was intended to 
authorize imposition of a federal prison sentence to run concurrently 
or consecutively to a state prison sentence. ``This * * * [section 
3584] changes the law that now applies to a person sentenced for a 
Federal offense who is already serving a term of imprisonment for a 
state offense.'' S. Rep. No. 225, supra at 127. ``Thus, it is intended 
that this provision be construed contrary to the holding in United 
States v. Segal. * * *'' Id. (at 127 n.314). See United States v. 
Hardesty, 958 F.2d 910, 914 (stating that, under section 3584, 
``Congress has expressly granted federal judges the discretion to 
impose a sentence concurrent to a state prison term''), aff'd en banc, 
977 F.2d 1347 (9th Cir. 1992).
    3. Section 1B1.10(c) is amended by deleting ``and 506'' and 
inserting in lieu thereof ``505, 506, and 516''.
    The Commentary to Sec. 1B1.10 captioned ``Background'' is amended 
in the fourth paragraph by inserting an asterisk immediately following 
``old guidelines''; and by inserting, as a note, following the 
Background Commentary:
     ``*So in original. Probably should be `to fall above the amended 
guidelines'.''.
    This amendment expands the listing in Sec. 1B1.10(d) to implement 
the directive in 28 U.S.C. Sec. 994(u) in respect to guideline 
amendments that may be considered for retroactive application. The 
amendment also makes an editorial addition to the Commentary to 
Sec. 1B1.10 (Retroactivity of Amended Guideline Range).
    In addition, the Commission has updated the ``Historical Notes'' 
following the amended guideline sections, and has made a number of 
additional minor conforming and editorial revisions to improve the 
internal consistency and appearance of the Manual.

[FR Doc. 95-29514 Filed 12-4-95; 8:45 am]
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