[Federal Register Volume 62, Number 192 (Friday, October 3, 1997)]
[Notices]
[Pages 51920-51923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26312]
=======================================================================
-----------------------------------------------------------------------
UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of: (a) Final action regarding amendments to sentencing
guidelines and policy statements effective November 1, 1997; and (b) an
amendment to correct a clerical error in USSG Sec. 2K2.1(a)(3), as
amended by amendment 522 (November 1, 1995).
-----------------------------------------------------------------------
SUMMARY: The Sentencing Commission hereby gives notice of: (a) Several
amendments to policy statements and commentary made pursuant to its
authority under 28 U.S.C. 994(a); (b)
[[Page 51921]]
conforming and technical amendments to several amendments submitted to
Congress on May 1, 1997; and (c) an amendment to correct a clerical
error that omitted the word ``felony'' from the phrase ``prior felony''
in USSG Sec. 2K2.1(a)(3), as amended by amendment 522 (November 1,
1995).
DATES: The effective date of these amendments is November 1, 1997.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information
Specialist, Telephone: (202) 273-4590.
Authority: 28 U.S.C. 994 (a), (o), (x).
Richard P. Conaboy,
Chairman.
1. Amendment: The Commentary to new guideline Sec. 2A6.2 (see 62
F.R. 26615 (1997)) captioned ``Application Notes'' is amended in Note 1
by inserting at the beginning the following:
For purposes of this guideline--
`Bodily injury' and `dangerous weapon' are defined in the
Commentary to Sec. 1B1.1 (Application Instructions).
Reason for Amendment: This amendment incorporates into Sec. 2A6.2
the definitions of ``bodily injury'' and ``dangerous weapon'' found in
Sec. 1B1.1 (Application Instructions). The definition of bodily injury
found in the guidelines differs from the definition of bodily injury in
18 U.S.C. 2266 that is applicable to interstate stalking and interstate
domestic violence offenses. The definition of ``bodily injury'' in 18
U.S.C. 2266 explicitly include sexual abuse, but the guideline
definition of ``bodily injury'' does not. However, the Commission is
fully aware that criminal sexual abuse often is part of a domestic
violence offense under 18 U.S.C. 2261 and 2262 and may be part of a
stalking offense under 18 U.S.C. 2261A. It is the view of the
Commission that the new guideline provides an adequate mechanism for
taking into account the occurrence of criminal sexual abuse in any of
these offenses. This is because the guideline definition of ``serious
bodily injury'' in Sec. 1B1.1 deems serious bodily injury--a more
serious gradient of bodily injury--to have occurred if the offense
involved conduct constituting criminal sexual abuse under 18 U.S.C.
2241 or 2242 or any similar offense under state law. Under the new
guideline, any offense that involved criminal sexual abuse almost
certainly will be subject to the cross reference to another offense
guideline and to the rule deeming such conduct to be serious bodily
injury (for purposes of applying a serious bodily injury enhancement in
that other guideline to the offense). Therefore, in all likelihood, the
sentence will be enhanced for the occurrence of criminal sexual abuse
because the case will be cross referenced to another guideline that
enhances for serious bodily injury.
2. Amendment: The Commentary to Sec. 2B4.1 captioned ``Statutory
Provisions'' is amended by deleting ``Secs. 11907(a), (b)'' and
inserting in lieu thereof ``Sec. 11902''.
The Commentary to Sec. 2N3.1 captioned ``Statutory Provisions'' is
amended by deleting ``15 U.S.C. Secs. 1983-1988, 1990c'' and inserting
in lieu thereof ``49 U.S.C. Secs. 32703-32705, 32709(b).''.
The Commentary to Sec. 2Q1.2 captioned ``Statutory Provisions'' is
amended by deleting ``Sec. 1809(b)'' and inserting in lieu thereof
``Sec. 60123(d)''.
Reason for Amendment: This amendment makes technical corrections to
Sec. 2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial
Bribery), Sec. 2N3.1(Odometer Laws and Regulations), Sec. 2Q1.2
(Mishandling of Hazardous or Toxic Substances or Pesticides;
Recordkeeping, Tampering, and Falsification; Unlawfully Transporting
Hazardous Materials in Commerce), to reflect changes made to statutory
references when Congress codified Title 49 (Transportation), United
States Code. Pub. L. 103-272, Sec. 1(e), July 5, 1994, 108 Stat. 1356;
Pub. L. 104-88, Title I, Sec. 102(a), December 29, 1995, 109 Stat. 850.
3. Amendment: The Commentary to Sec. 2D1.11 captioned ``Application
Notes'' is amended in Note 4(a) in the fourth sentence by deleting
``14'' and inserting in lieu thereof ``16''.
Reason for Amendment: This amendment corrects a clerical error.
4. Amendment: The Commentary to Sec. 2K1.5 captioned ``Background''
is amended by deleting:
Except under the circumstances specified in 49 U.S.C. 46505(c),
the offense covered by this section is a misdemeanor for which the
maximum term of imprisonment authorized by statute is one year;
by deleting ``An'' and inserting in lieu thereof ``This guideline
provides an''; and by deleting ``is provided'' immediately after
``enhancement''.
Reason for Amendment: This amendment strikes background commentary
in guideline Sec. 2K1.5 that is no longer correct because of a recent
change in statutory penalties. Specifically, the Antiterrorism Act of
1996 increased the statutory maximum penalty for violations of 49
U.S.C. 46505(b) from not more than one year to not more than 10 years.
This increase changes the classification of an offense under subsection
(b) from a class A misdemeanor to a class D felony.
5. Amendment: The Commentary to Sec. 4B1.1 captioned ``Application
Notes'' is amended in Note 2 by deleting ``not'' after ``offense,'' in
the first sentence; by deleting ``(b)(1)(B), (b)(1)(C), and (b)(1)(D)''
and inserting in lieu thereof ``(B), (C), and (D)''; by deleting
``where'' and inserting in lieu thereof ``in a case in which''; by
inserting ``for that defendant'' after ``Maximum'''; by deleting
``twenty years and not thirty years'' and inserting in lieu thereof
``thirty years and not twenty years''; by deleting ``authorizes'' and
inserting in lieu thereof ``has''; and by deleting ``maximum term of
imprisonment'' and inserting in lieu thereof ``offense statutory
maximum''.
The Commentary to Sec. 4B1.1 captioned ``Background'' is amended by
deleting:
The legislative history of this provision suggests that the
phrase `maximum term authorized' should be construed as the maximum
term authorized by statute. See S. Rep. No. 225, 98th Cong., 1st
Sess. 175 (1983); 128 Cong. Rec. 26, 511-12 (1982) (text of `Career
Criminals' amendment by Senator Kennedy); id. at 26,515 (brief
summary of amendment); id. at 26,517-18 (statement of Senator
Kennedy).
Reason for Amendment: This amendment responds to United States v.
LaBonte, 117 S.Ct. 1673. In LaBonte, the Supreme Court held that the
way in which the Commission defined ``maximum term authorized'', for
purposes of fulfilling the requirement under 28 U.S.C. 994(h) to
specify sentences for certain categories of career offenders at or near
the maximum term authorized for those offenders, is inconsistent with
section 994(h)'s plain and unambiguous language and is therefore
invalid. The Commission defined ``maximum term authorized'' to mean the
maximum term authorized for the offense of conviction not including any
sentencing enhancement provisions that apply because of the defendant's
prior criminal record. The Supreme Court held that under section 994's
plain and unambiguous language, ``maximum term authorized'' must be
read to include all applicable statutory sentencing enhancements. The
proposed amendment makes a straightforward change to the commentary to
Sec. 4B1.1, the career offender guideline, to reflect the LaBonte
decision. Specifically, the definition of ``maximum term authorized''
is proposed to be changed to reflect that the ``maximum term
authorized'' includes all sentencing enhancements that apply because of
the defendant's prior criminal record.
6. Amendment: The Commentary to Sec. 2K1.3 captioned ``Application
Notes'' is amended in Note 2 by deleting ``Note 3'' and inserting in
lieu thereof ``Note 1''.
[[Page 51922]]
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended in Note 5 by deleting ``Note 3'' and inserting in lieu thereof
``Note 1''.
The Commentary to Sec. 7B1.1 captioned ``Application Notes'' is
amended in Note 2 by deleting ``Sec. 4B1.2(1)'' and inserting in lieu
thereof ``Sec. 4B1.2(a)''; and by deleting ``Notes 1 and 2'' and
inserting in lieu thereof ``Note 1''.
The Commentary to Sec. 7B1.1 captioned ``Application Notes'' is
amended in Note 3 by deleting ``Sec. 4B1.2(2)'' and inserting in lieu
thereof ``Sec. 4B1.2(b)''.
Reason for Amendment: This amendment conforms Secs. 2K1.3, 2K2.1
and 7B1.1 to Sec. 4B1.2, as amended November 1, 1997 (see 62 FR 26615
(1997)).
7. Amendment: The replacement guideline for Sec. 5B1.3 (see 62 FR
26615 (1997)) is amended in subsection (a)(2) by inserting the
following additional paragraph:
Note: Section 3563(a)(2) of Title 18, United States Code,
provides that, absent unusual circumstances, a defendant convicted
of a felony shall abide by at least one of the conditions set forth
in 18 U.S.C. 3563(b)(2), (b)(3), and (b)(13). Before the enactment
of the Antiterrorism and Effective Death Penalty Act of 1996, those
conditions were a fine ((b)(2)), an order of restitution ((b)(3)),
and community service ((b)(13)). Whether or not the change was
intended, the Act deleted the fine condition and renumbered the
restitution and community service conditions in 18 U.S.C. 3563(b),
but failed to make a corresponding change in the referenced
paragraphs under 18 U.S.C. 3563(a)(2). Accordingly, the conditions
now referenced are restitution ((b)(2)), notice to victims pursuant
to 18 U.S.C. 3555((b)(3)), and an order that the defendant reside,
or refrain from residing, in a specified place or area ((b)(13)).
The Commentary to Sec. 2X5.1 captioned ``Application Note'' is
amended in Note 1 by deleting: ``Sec. 5B1.4 (Recommended Conditions of
Probation and Supervised Release);''.
Section 5H1.3 is amended by deleting ``recommended condition (24)
at Sec. 5B1.4 (Recommended Conditions of Probation and Supervised
Release)'' and inserting in lieu thereof ``Secs. 5B1.3(d)(5) and
5D1.3(d)(5)''.
Section 5H1.4 is amended in the second paragraph by deleting
``recommended condition (23) at Sec. 5B1.4 (Recommended Conditions of
Probation and Supervised Release)'' and inserting in lieu thereof
``Sec. 5D1.3(d)(4)''; and in the third paragraph by deleting
``recommended condition (23) at Sec. 5B1.4 (Recommended Conditions of
Probation and Supervised Release)'' and inserting in lieu thereof
``Sec. 5B1.3(d)(4)''.
Section 8D1.3(a) is amended by deleting ``shall'' immediately after
``organization''.
Section 8D1.3(b) is amended by deleting ``a fine, restitution, or
community service,'' and inserting in lieu thereof ``(1) restitution,
(2) notice to victims of the offense pursuant to 18 U.S.C. 3555, or (3)
an order requiring the organization to reside, or refrain from
residing, in a specified place or area,'';
and by adding at the end:
Note: Section 3563(a)(2) of Title 18, United States Code,
provides that, absent unusual circumstances, a defendant convicted
of a felony shall abide by at least one of the conditions set forth
in 18 U.S.C. 3563 (b)(2), (b)(3), and (b)(13). Before the enactment
of the Antiterrorism and Effective Death Penalty Act of 1996, those
conditions were a fine ((b)(2)), an order of restitution ((b)(3)),
and community service ((b)(13)). Whether or not the change was
intended, the Act deleted the fine condition and renumbered the
restitution and community service conditions in 18 U.S.C. 3563(b),
but failed to make a corresponding change in the referenced
paragraphs under 18 U.S.C. 3563(a)(2). Accordingly, the conditions
now referenced are restitution ((b)(2)), notice to victims pursuant
to 18 U.S.C. 3555((b)(3)), and an order that the defendant reside,
or refrain from residing, in a specified place or area ((b)(13)).
Reason for Amendment: This amendment conforms Secs. 2X5.1, 5H1.3,
and 5H1.4 to the replacement guideline for Sec. 5B1.3 and the deletion
of Sec. 5B1.4 (see 62 FR 26615 (1997)). The amendment also adds a note
to Secs. 5B1.3 and 8D1.3 explaining an ambiguity created by the
enactment of the Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L. 104-132, 110 Stat. 1227.
8. Amendment: Section 5K2.0 is amended in the third paragraph by
deleting ``immigration violations'' and inserting in lieu thereof
``other guidelines''; and by deleting ``for an immigration violation''
and inserting in lieu thereof ``under one of these other guidelines''.
Reason for Amendment: This amendment conforms Sec. 5K2.0 to
Sec. 2L1.1 (see 62 FR 26615 (1997)).
9. Amendment: The Commentary to Sec. 6A1.3 is amended in the first
paragraph by deleting ``will no longer exist'' and inserting in lieu
thereof ``no longer exists''; by deleting ``will usually have'' and
inserting in lieu thereof ``usually has'';
and by deleting:
Although lengthy sentencing hearings should seldom be necessary,
disputes about sentencing factors must be resolved with care. When a
reasonable dispute exists about any factor important to the
sentencing determination, the court must ensure that the parties
have an adequate opportunity to present relevant information.
Written statements of counsel or affidavits of witnesses may be
adequate under many circumstances. An evidentiary hearing may
sometimes be the only reliable way to resolve disputed issues. See
United States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979)
cert. denied, 444 U.S. 1073 (1980). The sentencing court must
determine the appropriate procedure in light of the nature of the
dispute, its relevance to the sentencing determination, and
applicable case law.
and inserting in lieu thereof:
Although lengthy sentencing hearings seldom should be necessary,
disputes about sentencing factors must be resolved with care. When a
dispute exists about any factor important to the sentencing
determination, the court must ensure that the parties have an
adequate opportunity to present relevant information. Written
statements of counsel or affidavits of witnesses may be adequate
under many circumstances. See, e.g., United States v. Ibanez, 924
F.2d 427 (2d Cir. 1991). An evidentiary hearing may sometimes be the
only reliable way to resolve disputed issues. See, e.g., United
States v. Jimenez Martinez, 83 F.3d 488, 494-95 (1st Cir. 1996)
(finding error in district court's denial of defendant's motion for
evidentiary hearing given questionable reliability of affidavit on
which the district court relied at sentencing); United States v.
Roberts, 14 F.3d 502, 521(10th Cir. 1993) (remanding because
district court did not hold evidentiary hearing to address
defendants' objections to drug quantity determination or make
requisite findings of fact regarding drug quantity); see also,
United States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979),
cert. denied, 444 U.S. 1073 (1980). The sentencing court must
determine the appropriate procedure in light of the nature of the
dispute, its relevance to the sentencing determination, and
applicable case law.
The Commentary to Sec. 6A1.3 is amended by deleting:
In determining the relevant facts, sentencing judges are not
restricted to information that would be admissible at trial. 18
U.S.C. 3661. Any information may be considered, so long as it has
``sufficient indicia of reliability to support its probable
accuracy.'' United States v. Marshall, 519 F. Supp. 751 (E.D. Wis.
1981), aff'd, 719 F.2d 887 (7th Cir. 1983); United States v. Fatico,
579 F.2d 707 (2d Cir. 1978) cert. denied, 444 U.S. 1073 (1980).
Reliable hearsay evidence may be considered. Out-of-court
declarations by an unidentified informant may be considered ``where
there is good cause for the nondisclosure of his identity and there
is sufficient corroboration by other means.'' United States v.
Fatico, 579 F.2d at 713. Unreliable allegations shall not be
considered. United States v. Weston, 448 F.2d 626 (9th Cir. 1971)
cert. denied, 404 U.S. 1061 (1972).
and inserting in lieu thereof:
In determining the relevant facts, sentencing judges are not
restricted to information that would be admissible at trial. See 18
U.S.C. 3661; see also United States v. Watts, 117 U.S. 633, 635
(1997) (holding that
[[Page 51923]]
lower evidentiary standard at sentencing permits sentencing court's
consideration of acquitted conduct); Witte v. United States, 515
U.S. 389, 399-401 (1995) (noting that sentencing courts have
traditionally considered wide range of information without the
procedural protections of a criminal trial, including information
concerning criminal conduct that may be the subject of a subsequent
prosecution); Nichols v. United States, 511 U.S. 738, 747-48 (1994)
(noting that district courts have traditionally considered
defendant's prior criminal conduct even when the conduct did not
result in a conviction). Any information may be considered, so long
as it has sufficient indicia of reliability to support its probable
accuracy. Watts, 117 U.S. at 637; Nichols, 511 U.S. at 748; United
States v. Zuleta-Alvarez, 922 F.2d 33 (1st Cir. 1990), cert. denied,
500 U.S. 927 (1991); United States v. Beaulieu, 893 F.2d 1177 (10th
Cir.), cert. denied, 497 U.S. 1038 (1990). Reliable hearsay evidence
may be considered. United States v. Petty, 982 F.2d 1365 (9th Cir.
1993), cert. denied, 510 U.S. 1040 (1994); United States v.
Sciarrino, 884 F.2d 95 (3d Cir.), cert. denied, 493 U.S. 997 (1989).
Out-of-court declarations by an unidentified informant may be
considered where there is good cause for the non-disclosure of the
informant's identity and there is sufficient corroboration by other
means. United States v. Rogers, 1 F.3d 341 (5th Cir. 1993); see also
United States v. Young, 981 F.2d 180 (5th Cir.), cert. denied, 508
U.S. 980 (1993); United States v. Fatico, 579 F.2d 707, 713 (2d Cir.
1978), cert. denied, 444 U.S. 1073 (1980). Unreliable allegations
shall not be considered. United States v. Ortiz, 993 F.2d 204 (10th
Cir. 1993).
Reason for Amendment: This amendment updates the case law
references in the commentary to Sec. 6A1.3 to include references to
sentencing guideline cases.
10. Amendment: Appendix A (Statutory Index) is amended by
inserting, in the appropriate place by title and section:
18 U.S.C. 514 2F1.1'';
18 U.S.C. 611 2H2.1'';
18 U.S.C. 669 2B1.1'';
18 U.S.C. 758 2A2.4'';
18 U.S.C. 1030(a)(7) 2B3.2'';
18 U.S.C. 1035 2F1.1'';
18 U.S.C. 1347 2F1.1'';
18 U.S.C. 1518 2J1.2'';
18 U.S.C. 1831 2B1.1'';
18 U.S.C. 1832 2B1.1'';
18 U.S.C. 2261A 2A6.2'';
21 U.S.C. 841(b)(7) 2D1.1'';
21 U.S.C. 960(d)(7) 2D1.11'';
47 U.S.C. 223(a)(1)(C) 2A6.1'';
47 U.S.C. 223(a)(1)(D) 2A6.1'';
47 U.S.C. 223(a)(1)(E) 2A6.1'';
49 U.S.C. 5124 2Q1.2'';
49 U.S.C. 32703 2N3.1'';
49 U.S.C. 32704 2N3.1'';
49 U.S.C. 32705 2N3.1'';
49 U.S.C. 32709(b) 2N3.1'';
49 U.S.C. 60123(d) 2B1.3'';
49 U.S.C. 80116 2F1.1'';
49 U.S.C. 80501 2B1.3'';
in the line referenced to ``15 U.S.C. 1281'' by inserting ``(for
offenses committed prior to July 5, 1994)'' immediately after
``2B1.3'';
in the line referenced to ``15 U.S.C. 1983'' by inserting ``(for
offenses committed prior to July 5, 1994)'' immediately after
``2N3.1'';
in the line referenced to ``15 U.S.C. 1984'' by inserting ``(for
offenses committed prior to July 5, 1994)'' immediately after
``2N3.1'';
in the line referenced to ``15 U.S.C. 1985'' by inserting ``(for
offenses committed prior to July 5, 1994)'' immediately after
``2N3.1'';
in the line referenced to ``15 U.S.C. 1986'' by inserting ``(for
offenses committed prior to July 5, 1994)'' immediately after
``2N3.1'';
in the line referenced to ``15 U.S.C. 1987'' by inserting ``(for
offenses committed prior to July 5, 1994)'' immediately after
``2N3.1'';
in the line referenced to ``15 U.S.C. 1988'' by inserting ``(for
offenses committed prior to July 5, 1994)'' immediately after
``2N3.1'';
in the line referenced to ``15 U.S.C. 1990c'' by inserting ``(for
offenses committed prior to July 5, 1994)'' immediately after
``2N3.1'';
by deleting ``18 U.S.C. 1008 2F1.1, 2S1.3'';
in the line referenced to ``18 U.S.C. 1030(a)(2)'' by deleting
``2F1.1'' and inserting in lieu thereof ``2B1.1'';
in the line referenced to ``18 U.S.C. 1030(a)(3)'' by deleting
``2F1.1'' and inserting in lieu thereof ``2B2.3'';
in the line referenced to ``18 U.S.C. 1030(a)(5)'' by deleting
``2F1.1'' and inserting in lieu thereof ``2B1.3'';
by deleting:
``18 U.S.C. 2258(a), (b) 2G2.1, 2G2.2'', and inserting in lieu
thereof:
``18 U.S.C. 2260 2G2.1, 2G2.2'';
in the line referenced to ``18 U.S.C. 2261'' by deleting ``2A1.1,
2A1.2, 2A2.1, 2A2.2, 2A2.3, 2A3.1, 2A3.4, 2A4.1, 2B3.1, 2B3.2, 2K1.4''
and inserting in lieu thereof ``2A6.2'';
in the line referenced to ``18 U.S.C. 2262'' by deleting ``2A1.1,
2A1.2, 2A2.1, 2A2.2, 2A2.3, 2A3.1, 2A3.4, 2A4.1, 2B3.1, 2B3.2, 2K1.4''
and inserting in lieu thereof ``2A6.2'';
in the line referenced to ``21 U.S.C. 959'' by inserting ``, 2D1.11''
immediately after ``2D1.1''.
in the line referenced to ``49 U.S.C. 121'' by inserting ``(for
offenses committed prior to July 5, 1994)'' immediately after
``2F1.1'';
in the line referenced to ``49 U.S.C. 1809(b)'' by inserting ``(for
offenses committed prior to July 5, 1994)'' immediately after
``2Q1.2'';
in the line referenced to ``49 U.S.C. App. Sec. 1687(g)'' by inserting
``(for offenses committed prior to July 5, 1994)'' immediately after
``2B1.3''; and
by deleting ``49 U.S.C. 14904 2B4.1''.
The Commentary to Sec. 2G2.1 captioned ``Statutory Provisions'' is
amended by deleting ``2258(a), (b)'' and inserting in lieu thereof
``2260''.
The Commentary to Sec. 2G2.2 captioned ``Statutory Provisions'' is
amended by deleting ``2258(a), (b)'' and inserting in lieu thereof
``2260''.
Section 2K2.1(a)(3) is amended by inserting ``felony'' before
``prior''.
Reason for Amendment: This amendment makes Appendix A (Statutory
Index) more comprehensive. This amendment adds references for
additional offenses, including offenses created by recently enacted
legislation. In addition, this amendment revises Appendix A to conform
to the revision of existing statutes and to reflect the codification of
Title 49, United States Code. This amendment also corrects clerical
errors in Secs. 2G2.1 and 2G2.2.
Finally, this amendment corrects a clerical error in
Sec. 2K2.1(a)(3), as amended by amendment 522, effective November 1,
1995. During the execution of that amendment, which equalized offense
levels for semiautomatic assault weapon possession with machinegun
possession, the word ``felony'' was inadvertently omitted from the
phrase ``prior conviction'' in subsection (a)(3).
[FR Doc. 97-26312 Filed 10-2-97; 8:45 am]
BILLING CODE 2210-40-P