[Federal Register Volume 67, Number 12 (Thursday, January 17, 2002)]
[Notices]
[Pages 2456-2475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1264]


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SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments to sentencing guidelines, policy 
statements, and commentary. Request for public comment. Notice of 
public hearing.

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, the Commission is considering promulgating certain 
amendments to the sentencing guidelines, policy statements, and 
commentary. This notice sets forth the proposed

[[Page 2457]]

amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice additionally sets forth a 
number of issues for comment, including a request for comment set forth 
in the SUPPLEMENTARY INFORMATION portion of this notice regarding 
retroactive application of proposed amendments.
    The proposed amendments and issues for comment contained in this 
notice are as follows: (1) Proposed amendment and issues for comment in 
response to the Uniting and Strengthening America by Providing 
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA 
PATRIOT Act) Act of 2001, Pub. L. 107-56, and the Commission's 
assessment of the guidelines' treatment of offenses involving 
terrorism; (2) proposed amendments to a number of guidelines covering 
controlled substances offenses, including enhancements and downward 
adjustments to account more adequately for aggravating and mitigating 
conduct sometimes associated with drug trafficking offenses, and issues 
for comment, including issues pertaining to offenses involving cocaine 
base (``crack cocaine''); (3) proposed amendment to provide increased 
sentencing alternatives in Zone B of the Sentencing Table; and (4) 
proposed amendment that corrects a technical error made in the November 
27, 2001, Federal Register notice (66 F.R. 59295) pertaining to the 
proposed amendment to Sec. 3E1.1 (Acceptance of Responsibility). In 
addition to the issues for comment that are contained within these 
proposed amendments, this notice sets forth a separate issue for 
comment regarding whether to expand Sec. 5G1.3 (Imposition of a 
Sentence on a Defendant Subject to an Undischarged Term of 
Imprisonment) to include discharged terms of imprisonment.

DATES: Written Public Comment.--Written public comment regarding the 
amendments set forth in this notice, including public comment regarding 
retroactive application of any of these proposed amendments, should be 
received by the Commission not later than March 19, 2002. Written 
public comment regarding retroactivity of proposed amendments set forth 
in the November 27, 2001, Federal Register notice (See 66 F.R. 59295) 
should be received by the Commission not later than March 4, 2002.
    Public Hearings.--The Commission plans to hold three public 
hearings on its proposed amendments, one on each of the following days: 
February 25, 2002; February 26, 2002; and March 19, 2002. The tentative 
times for the hearings are as follows: 3:00 to 5:00 p.m. on February 
25, 2002; 9:30 to 11:30 a.m. on February 26, 2002; and 3:00 to 5:00 
p.m. on March 19, 2002. Witnesses at the first two hearings will be 
invited to testify by the Commission on issues specified by the 
Commission prior to the hearings. A person who wishes to testify at the 
third hearing, the subject of which may include any of the proposed 
amendments, should notify Michael Courlander, at (202) 502-4500, not 
later than March 9, 2002. Written testimony must be received by the 
Commission not later than March 9, 2002. Timely submission of written 
testimony is required for testifying at the public hearing. The 
Commission requests that, to the extent practicable, commentators 
submit an electronic version of the comment and of the testimony for 
the relevant public hearing. The Commission also reserves the right to 
select persons to testify at any of the hearings and to structure the 
hearings as the Commission considers appropriate and the schedule 
permits.
    Further information regarding the public hearings, including the 
location, time, and scope of the hearings, will be provided by the 
Commission on its website at www.ussc.gov.

ADDRESSES: Public comment should be sent to: United States Sentencing 
Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC 
20002-8002, Attention: Public Information.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, Telephone: (202) 502-4500.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). 
The Commission also periodically reviews and revises previously 
promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits 
guideline amendments to the Congress not later than the first day of 
May each year pursuant to 28 U.S.C. 994(p).
    The proposed amendments are presented in this notice in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline or commentary. Bracketed text within a 
proposed amendment indicates a heightened interest on the Commission's 
part for comment and suggestions for alternative policy choices; for 
example, a proposed enhancement of [2] levels indicates that the 
Commission is considering, and invites comment on, alternative policy 
choices regarding the appropriate level of enhancement. Similarly, 
bracketed text within a specific offense characteristic or application 
note means that the Commission specifically invites comment on whether 
the proposed provision is appropriate. Second, the Commission has 
highlighted certain issues for comment and invites suggestions for how 
the Commission should respond to those issues.
    The Commission also requests public comment regarding whether any 
of the proposed amendments contained in this notice, and the Federal 
Register notice of November 27, 2001, (66 FR 59295), that may result in 
a lower guideline range should be made retroactive to previously 
sentenced defendants pursuant to Sec. 1B1.10 (Reduction in Term of 
Imprisonment as a Result of Amended Guideline Range).
    Additional information pertaining to the proposed amendments 
described in this notice may be accessed through the Commission's 
website at www.ussc.gov.

    Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of 
Practice and Procedure 3.4, 4.3, 4.4.

Diana E. Murphy,
Chair.

1. Terrorism

Synopsis of Proposed Amendment

    Overview: On October 26, 2001, the President signed into law the 
Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 
2001, Pub. L. 107-56. Among other things, the Act created a number of 
new terrorism, money laundering, and currency offenses, and increased 
the statutory maximum penalties for certain pre-existing offenses. In 
light of this legislation, the Commission is assessing the Guidelines' 
treatment of terrorism offenses, and certain money laundering and 
currency offenses as they may be related to terrorism.
    This amendment cycle, the Commission is interested in considering 
amending the guidelines as they pertain to these newly created offenses 
and those offenses modified by the Act. Additionally, the Commission is 
requesting comment regarding the efficacy of guideline 3A1.4, the 
sentencing enhancement for terrorism. The proposed amendment provides a 
definition for terrorism for certain money laundering and immigration 
offenses. In addition, the proposed amendment contains a number of 
modifications to existing guidelines, the statutory index, the 
terrorism

[[Page 2458]]

adjustment, and provides issues for comment.
    Synopsis of Proposed Amendment: This is a multi-part amendment 
proposed in response to the USA PATRIOT Act of 2001 (the Act) and the 
Commission's assessment of the guidelines' treatment of offenses 
involving terrorism. Parts (A) through (E) address offenses that 
involve, or potentially involve, terrorism. Providing guideline 
treatment for these offenses in Chapter Two (Offense Conduct) is 
important, in part, to ensure applicability of the Chapter Three 
adjustment for terrorism, Sec. 3A1.4. Specifically, Parts (A) through 
(E) of this amendment provide guideline treatment (or issues for 
comment) for the following: (A) New predicate offenses to federal 
crimes of terrorism; (B) other predicate offenses to federal crimes of 
terrorism that are not currently referenced in the Statutory Index; (C) 
increases in statutory maximum penalties for predicate offenses to 
federal crimes of terrorism that currently are referenced in the 
Statutory Index; (D) penalties for terrorism conspiracies; and (E) 
issues related to the terrorism adjustment in Sec. 3A1.4.
    Part (F) of this amendment addresses money laundering provisions of 
the Act. Part (G) addresses currency and counterfeiting provisions of 
the Act. Part (H) addresses miscellaneous issues.
Part (A): New Predicate Offenses to Federal Crimes of Terrorism
    Synopsis of Proposed Amendment: This amendment amends Chapter Two, 
Part A, Subpart 5 (Air Piracy) to include offenses against mass 
transportation systems under 18 U.S.C. 1993 within the scope of that 
Subpart and provides references in the Statutory Index to a number of 
guidelines. Section 1993, added by section 801 of the Act, prohibits 
(1) willfully wrecking, derailing, setting fire to, or disabling a mass 
transportation system; (2) willfully or recklessly placing any 
biological agent or toxin for use as a weapon or destructive device on 
or near a mass transportation system vehicle or ferry; (3) willfully or 
recklessly setting fire to, or placing any biological agent or toxin 
for use as a weapon or destructive device in or near a mass 
transportation system garage, terminal, structure, supply, or facility; 
(4) willfully removing appurtenances from, damaging, or otherwise 
impairing the operation of a mass transportation signal system without 
authorization; (5) willfully or recklessly interfering with, disabling, 
or incapacitating any dispatcher, driver, captain, or person employed 
in dispatching, operating, or maintaining a mass transportation system; 
(6) committing an act, including the use of a dangerous weapon, with 
intent to cause death or serious bodily injury to an employee or 
passenger of a mass transportation system; (7) conveying or causing to 
be conveyed false information, knowing the information to be false, 
concerning an attempt to do any act prohibited by this section; and (8) 
attempting, threatening, or conspiring to do any of the above acts. The 
maximum term of imprisonment is 20 years, or life imprisonment if the 
offense results in death.
    The amendment also includes several issues for comment, including 
an issue regarding how hoaxes should be treated and an issue regarding 
how the guidelines should treat offenses involving the conveying of 
false information and threats under 18 U.S.C. 1993(a)(7) and (8) and 
under 49 U.S.C. 46507. Section 46507 prohibits (i) conveying or causing 
to be conveyed false information, knowing the information to be false, 
concerning an air piracy and similar offenses under title 49, United 
States Code, and (ii) threatening to commit air piracy or similar 
offenses under title 49, United States Code, having the apparent 
determination and will to carry out the threat. The maximum term of 
imprisonment is 5 years. Currently, section 46507 offenses are not 
listed in the Statutory Index.
    This amendment also references the new offense at 49 U.S.C. 46503 
to Sec. 2A5.2 (Interference with Flight Crew Member or Flight 
Attendant). That offense, created by section 114 of the Aviation and 
Transportation Security Act, prohibits an individual in an area within 
a commercial service airport in the United States from assaulting a 
Federal, airport, or air carrier employee who has security duties 
within the airport, thereby interfering with the performance of the 
employee's duties or lessening the ability of that employee from 
performing those duties. The maximum term of imprisonment is 10 years, 
or, if the individual used a dangerous weapon in committing the assault 
or interference, any term of years or life.
    The amendment expands the guideline covering nuclear, biological, 
and chemical weapons, Sec. 2M6.1, to cover new offenses created by 
section 817 of the Act involving possession of biological agents, 
toxins, and delivery systems. Specifically, section 817 added a new 
offense at 18 U.S.C. 175(b), which prohibits a person from knowingly 
possessing any biological agent, toxin, or delivery system of a type or 
in a quantity that, under the circumstances, is not reasonably 
justified by a prophylactic, protective, bona fide research, or other 
peaceful purpose. The maximum term of imprisonment is 10 years. Section 
817 also added a new offense at 18 U.S.C. 175b, which prohibits certain 
classes of individuals from shipping or transporting in interstate or 
foreign commerce, or possessing in or affecting commerce, any 
biological agent or toxin, or receiving any biological agent or toxin 
that has been shipped or transported in interstate or foreign commerce, 
if the biological agent or toxin is listed as a select agent in 
applicable federal regulations. The maximum term of imprisonment is 10 
years.
    The amendment also proposes to amend the Statutory Index to 
reference 18 U.S.C. 2339 to Secs. 2X2.1 (Aiding and Abetting) and 2X3.1 
(Accessory After the Fact). This offense prohibits harboring or 
concealing any person who the defendant knows, or has reasonable 
grounds to believe, has committed or is about to commit, one of several 
enumerated offenses. The maximum statutory term of imprisonment is 10 
years.
Proposed Amendment (Part (A)):
    The title to Chapter Two, Part A, Subpart 5 is amended by adding 
``, Offenses Against Mass Transportation Systems'' after ``Air 
Piracy''.
    Section 2A5.2 is amended in the title by adding ``; Interference 
with Dispatch, Operation, or Maintenance of Mass Transportation Vehicle 
or Ferry'' after ``Attendant''.
    Section 2A5.2 is amended by striking subsections (a)(1) and (a)(2) 
and inserting the following:
    ``(1) 30, if the offense involved intentionally endangering the 
safety of: (A) An aircraft; (B) a mass transportation vehicle or a 
ferry; or (C) any person in, upon, or near an aircraft, a mass 
transportation vehicle, or a ferry, with the intent to endanger the 
safety of an aircraft, a mass transportation vehicle, or a ferry, 
during the course of its operation;
    (2) 18, if the offense involved recklessly endangering the safety 
of: (A) an aircraft; (B) a mass transportation vehicle or a ferry; or 
(C) any person in, upon, or near an aircraft, a mass transportation 
vehicle, or a ferry, with the intent to endanger the safety of an 
aircraft, a mass transportation vehicle, or a ferry, during the course 
of its operation;''.
    The Commentary to Sec. 2A5.2 captioned ``Statutory Provisions'' is 
amended by inserting ``18 U.S.C. 1993(a)(4), (5), (6);''

[[Page 2459]]

before ``49 U.S.C. 46308''; and by inserting ``46503,'' before 
``46504''.
    The Commentary to Sec. 2A5.2 is amended by inserting before 
``Background'' the following:

``Application Note

    1. Definition.--For purposes of this guideline, `mass 
transportation' has the meaning given that term in 49 U.S.C. 
5302(a)(7).''.
    The Commentary to Sec. 2A5.2 captioned ``Background'' is amended in 
the first sentence by striking ``the aircraft and passengers'' and 
inserting ``an aircraft, a mass transportation vehicle, or a ferry, or 
any person in, upon, or near an aircraft, a mass transportation system, 
or a ferry''.
    Issues for Comment: The Commission requests comment regarding 
whether Sec. 2A5.2 should be amended to provide an enhancement or a 
cross-reference to the homicide guidelines if death results, and also 
whether a specific offense characteristic should be added if the 
offense endangered or harmed multiple victims. In order to take into 
account aggravating conduct under 49 U.S.C. 46503, should Sec. 2A5.2 
provide an enhancement for assaulting airport security personnel? 
Alternatively, should there be a more general enhancement in that 
guideline for jeopardizing the security of an airport facility, mass 
transportation vehicle, or ferry? Should the Commission limit 
application of such an enhancement so that it does not apply to 
assaults that do not jeopardize the overall safety or security of an 
airplane, mass transportation vehicle, or ferry?
    The Commission also requests comment regarding how the guidelines 
should treat offenses involving the conveying of false information and 
threats under 18 U.S.C. 1993(a)(7) and (8) and under 49 U.S.C. 46507. 
Section 1993(a)(7) and (8) prohibit conveying or causing to be conveyed 
false information, knowing the information to be false, concerning an 
attempt to do any act prohibited by this section, and attempting, 
threatening, or conspiring to do any of the above acts. Section 46507 
prohibits (i) conveying or causing to be conveyed false information, 
knowing the information to be false, concerning an air piracy and 
similar offenses under title 49, United States Code, and (ii) 
threatening to commit air piracy or similar offenses under title 49, 
United States Code, having the apparent determination and will to carry 
out the threat. Currently, section 46507 offenses are not listed in the 
Statutory Index. Should the offense levels for such cases be the same 
as the offense levels that would pertain if the threatened offense (or 
the offense about which false information had been conveyed) had 
actually been committed, or should the guidelines provide a reduction 
in offense level for such cases?
    The Commission also requests comment regarding whether any of the 
base offense levels in Sec. 2A5.2 should be increased to cover offenses 
under 18 U.S.C. 1993 and 49 U.S.C. 46503.
    The Commission generally requests comment on how the guidelines 
should treat hoaxes concerning attempts to commit any act of terrorism. 
Should a hoax be treated the same as the underlying offense which was 
the object of the hoax?
    Subsection 2M6.1(a)(2) is amended by striking ``or''.
    Subsection 2M6.1(a)(3) is amended by striking the period at the end 
and inserting ``; or''.
    Subsection 2M6.1(a) is amended by adding at the end the following:
    ``(4) [14-22], if the defendant (A) was a restricted person at the 
time the defendant committed the instant offense; or (B) is convicted 
under 18 U.S.C. 175(b) or 175b.''.
    The Commentary to Sec. 2M6.1 captioned ``Statutory Provisions'' is 
amended by inserting ``175b,'' after ``175,''.
    The Commentary to Sec. 2M6.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting after ``18 U.S.C. 831(f)(1).'' the 
following:
    ``Restricted person'' has the meaning given that term in 18 U.S.C. 
175b(b)(2).''.
    Issue for Comment: The Commission requests comment regarding 
whether the specific offense characteristics in Sec. 2M6.1(b)(1) and 
(b)(3) should be applicable to offenses under 18 U.S.C. 175b and 
175(b).
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``18 U.S.C. 175'' the following new line:
    ``18 U.S.C. Sec. 175b  2M6.1''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``18 U.S.C. Sec. 1992'' the following new lines:
    ``18 U.S.C. 1993(a)(1)  2K1.4
    18 U.S.C. 1993(a)(2)  2K1.4, 2M6.1
    18 U.S.C. 1993(a)(3)  2K1.4, 2M6.1
    18 U.S.C. 1993(a)(4)  2A5.2, 2B1.1
    18 U.S.C. 1993(a)(5)  2A5.2
    18 U.S.C. 1993(a)(6)  2A2.1, 2A2.2, 2A5.2''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``18 U.S.C. 2332a'' the following new line:
    ``18 U.S.C. 2339  2X2.1, 2X3.1''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``49 U.S.C. 46502(a), (b)'' the following new line:
    ``49 U.S.C. 46503  Sec. 2A5.2''.
Part (B): Pre-existing Predicate Offenses to Federal Crimes of 
Terrorism Not Covered by the Guidelines
    Synopsis of Proposed Amendment: A number of offenses that currently 
are enumerated in 18 U.S.C. 2332b(g)(5) as federal crimes of terrorism 
are not listed in the Statutory Index (Appendix A). This means that the 
court needs to look for an analogous Chapter Two guideline for these 
offenses. The amendment proposes a number of Statutory Index 
references, as well as modifications to various Chapter Two guidelines, 
for these offenses.
    Specifically, 18 U.S.C. 2332b(a)(1), prohibits, as part of conduct 
transcending national boundaries and in certain enumerated 
circumstances, killing, maiming, committing an aggravated assault, or 
creating a substantial risk of serious bodily injury by destroying or 
damaging real or personal property. The maximum statutory penalty for 
such offenses is life imprisonment. The amendment proposes to reference 
these offenses to Secs. 2A1.1, 2A1.2, 2A1.3, 2A1.4, and 2A2.2, as 
Sec. 2332b offenses are by definition offenses against the person and 
therefore are analogous to offenses currently referenced to those 
guidelines.
    The amendment also provides an issue for comment on how the 
Commission should treat threat cases under 18 U.S.C. 2332b(a)(2), which 
prohibits threats to commit an offense under 18 U.S.C. 2332b(a)(1). 
Those offenses prohibit, as part of conduct transcending national 
boundaries and in certain enumerated circumstances, killing, maiming, 
committing an aggravated assault, or creating a substantial risk of 
serious bodily injury by destroying or damaging real or personal 
property. (The amendment also proposes to reference 18 U.S.C. 
2332b(a)(2) to Secs. 2A1.5 and 2A2.1, to the extent attempt or 
conspiracy to commit murder is involved.). The maximum term of 
imprisonment for threats to commit an offense under 18 U.S.C. 
2332b(a)(1) is ten years.
    This amendment also creates a new guideline, at 2M6.3 (Providing 
Material Support to Terrorists and Foreign Terrorist Organizations), 
for the following two offenses:
    (1) 18 U.S.C. 2339A, which prohibits the provision of material 
support or resources to terrorists, knowing or intending that they will 
be used in the preparation for, or in carrying out, specified crimes 
(i.e., those designated as predicate offenses for ``federal crimes

[[Page 2460]]

of terrorism'') or in preparation for, or in carrying out, the 
concealment or an escape from the commission of any such violation. The 
maximum term of imprisonment is 15 years.
    (2) 18 U.S.C. 2339B, which prohibits the provision of material 
support or resources to a foreign terrorist organization. The maximum 
term of imprisonment is 15 years.
    An issue for comment is included on how the new guideline proposed 
to be added at Sec. 2M6.3 should cover the wide variety of conduct 
encompassed by the offenses at 18 U.S.C. 2339A and 2339B, and whether 
there exists sufficiently analogous guidelines for these offenses. 
Further, the Commission requests comment on whether 18 U.S.C. 2339A and 
2339B offenses should be referenced to the same or different 
guidelines. For example, should Sec. 2339A be referenced to Sec. 2X2.1 
(Aiding and Abetting) in a case in which the offense occurred prior to 
the underlying terrorism offense, and be referenced to Sec. 2X3.1 
(Accessory After the Fact) in a case in which the offense occurred 
after the underlying terrorism offense. Should Sec. 2339B be referenced 
to Sec. 2M5.1?
    The amendment also proposes to reference torture offenses under 18 
U.S.C. 2340A to Secs. 2A1.1 (First Degree Murder), 2A1.2 (Second Degree 
Murder), 2A2.2 (Aggravated Assault), and 2A4.1 (Kidnapping, Abduction, 
Unlawful Restraint). The statutory maximum penalty for this offense is 
20 years imprisonment, or life imprisonment if death results. 
``Torture'' is defined in 18 U.S.C. 2340(1) as ``an act committed by a 
person under the color of law specifically intended to inflict severe 
physical or mental pain or suffering (other than pain or suffering 
incidental to lawful sanctions) upon another person within his custody 
or physical control''. Although this offense has not been listed in the 
Statutory Index for some time, reference in the Statutory Index is 
recommended at this time because the offense is now a predicate offense 
that may qualify as a ``federal crime of terrorism''.
    The amendment also proposes to reference 49 U.S.C. 60123(b) 
(damaging or destroying an interstate gas or hazardous liquid pipeline 
facility) to Secs. 2B1.1 (Theft, Property Destruction, and Fraud), 
2K1.4 (Arson; Property Damage by Use of Explosives), 2M2.1 Destruction 
of, or Production of Defective, War Material, Premises, or Utilities), 
and 2M2.3 (Destruction of, or Production of Defective, National Defense 
Material, Premises, or Utilities). The maximum penalty is 20 years, or 
life imprisonment if the offense resulted in the death of any person. 
Although this offense has not been listed in the Statutory Index for 
some time, reference in the Statutory Index is recommended at this time 
because the offense is now a predicate offense that may qualify as a 
``federal crime of terrorism''. An issue for comment is included 
regarding which, if any, of the guidelines listed above are appropriate 
for these offenses.
Proposed Amendment (Part B):
    Chapter Two, Part M, Subpart 6 is amended in the heading by adding 
at the end ``; Providing Material Support to Terrorists''.
    Chapter Two, Part M, Subpart 6, is amended by adding at the end the 
following:
    ``Sec. 2M6.3. Providing Material Support or Resources to Terrorists 
or Designated Foreign Terrorist Organizations
    (a) Base Offense Level: [26][32]
Commentary
    Statutory Provisions: 18 U.S.C. 2339A, 2339B.
    Application Note:
    1. Application of Terrorism Adjustment.--An offense covered by this 
guideline is not precluded from (A) application of the adjustment in 
Sec. 3A1.4 (Terrorism), or (B) if the adjustment does not apply, an 
upward departure under Application Note 3 of Sec. 3A1.4.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``18 U.S.C. 2332a'' the following new lines:
    ``18 U.S.C. 2332b(a)(1)  2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.2
    18 U.S.C. 2332b(a)(2)  
    2A1.5, 2A2.1, 2M6.3
    18 U.S.C. 2339A  2M6.3
    18 U.S.C. 2339B  2M6.3
    18 U.S.C. 2340A  2A1.1, 2A1.2, 2A2.2, 2A4.1''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``49 U.S.C. 46506'' the following new line:
    ``49 U.S.C. 60123(b)  2B1.1, 2K1.4, 2M2.1, 2M2.3''.
    Issues for Comment: The Commission requests comment on the 
appropriate treatment in the guidelines for threat cases under 18 
U.S.C. 2332b(a)(2), which prohibits threats to commit an offense under 
18 U.S.C. 2332b(a)(1). Those offenses prohibit, as part of conduct 
transcending national boundaries and in certain enumerated 
circumstances, killing, maiming, committing an aggravated assault, or 
creating a substantial risk of serious bodily injury by destroying or 
damaging real or personal property. (The amendment also proposes to 
reference 18 U.S.C. 2332b(a)(2) to Secs. 2A1.5 and 2A2.1, to the extent 
attempt or conspiracy to commit murder is involved.) The maximum term 
of imprisonment for threats to commit an offense under 18 U.S.C. 
2332b(a)(1) is ten years. Should the offense levels for such threat 
cases be the same as the offense levels that would pertain if the 
threatened offense had actually been committed, or should the 
guidelines provide a reduction in offense levels for such cases? Would 
a reference to Sec. 2A6.1 (Threatening or Harassing Communications) be 
appropriate? If so, how should that guideline be amended in order to 
account for the seriousness of threats under 18 U.S.C. 2332b (e.g., 
should the base offense level be increased for such offenses)?
    The maximum term of imprisonment for providing material support to 
terrorists under 18 U.S.C. 2339A(a) was increased from 10 years to 15 
years, or for any term of years or life if the offense resulted in the 
death of any person. This amendment proposes a new guideline, 
Sec. 2M6.3, to cover such offenses. Accordingly, the Commission 
requests comment regarding whether the offense levels provided for that 
offense in the proposed new guideline are appropriate. Should there be 
alternative base offense levels and/or specific offense characteristics 
in the new guideline to provide enhanced punishment for the most 
serious cases covered by the guideline (e.g., should there be a cross 
reference to Chapter Two, Part A guidelines if death resulted)? What 
are the most serious cases? For example, should there be an enhancement 
for providing material support to a designated foreign terrorist 
organization? Is, for example, providing lodging to a defendant after 
the commission of a terrorist offense in order to allow that defendant 
to escape prosecution less serious than providing weapons to a 
defendant to enable the defendant to carry out a terrorist offense, or 
should those two cases be treated the same under the guidelines?
Part (C): Increases to Statutory Maximum Penalties For Predicate 
Offenses Covered by the Guidelines
    Synopsis of Proposed Amendment: Section 810 of the Act increased 
statutory maximum terms of imprisonment for several offenses. An issue 
for comment follows regarding whether guideline penalties should be 
increased in response.
    Issue for Comment: The Commission requests comment regarding 
whether guideline penalties should be increased for any of the 
following offenses for which statutory maximum terms of

[[Page 2461]]

imprisonment were increased by section 810 of the Act. Specifically:
    (1) The maximum statutory term of imprisonment for arson of a 
dwelling under 18 U.S.C. 81 was increased from 20 years to any term of 
years or life. That offense is covered by Sec. 2K1.4 (Arson; Property 
Damage by Use of Explosives).
    (2) The maximum statutory term of imprisonment for destruction of 
an energy facility under 18 U.S.C. 1366 was increased from 10 years to 
20 years, or for any term of years or life if the offense resulted in 
the death of any person. That offense is covered by Sec. 2B1.1 (Theft, 
Property Destruction, and Fraud).
    (3) The maximum term of imprisonment for providing material support 
to terrorists under 18 U.S.C. 2339A(a) was increased from 10 years to 
15 years, or for any term of years or life if the offense resulted in 
the death of any person. This amendment proposes a new guideline, 
Sec. 2M6.3, to cover such offenses. Accordingly, the Commission 
requests comment regarding whether the offense levels provided for that 
offense in the proposed new guideline are appropriate.
    (4) The maximum term of imprisonment for providing material support 
to designated foreign terrorist organizations under 18 U.S.C. 
2339B(a)(a) was increased from 10 years to 15 years, or for any term of 
years or life if the offense resulted in the death of any person. This 
amendment proposes a new guideline, Sec. 2M6.3, to cover such offenses. 
Accordingly, the Commission requests comment regarding whether the 
offense levels provided for that offense in the proposed new guideline 
are appropriate.
    (5) The maximum statutory term of imprisonment for destruction of 
national defense materials under 18 U.S.C. 2155(a) was increased from 
10 years to 20 years, or for any term of years or life if the offense 
resulted in the death of any person. That offense is covered by 
Sec. 2M2.3 (Destruction of, or Production of Defective, National 
Defense Material, Premises, or Utilities).
    (6) The maximum statutory term of imprisonment for sabotage of 
nuclear facilities or fuel under 42 U.S.C. 2284 was increased from 10 
years to 20 years, or for any term of years or life if the offense 
resulted in the death of any person. That offense is covered by 
Secs. 2M2.1 (Destruction of, or Production of Defective, War Material, 
Premises, or Utilities) and 2M2.3.
    (7) The maximum statutory term of imprisonment for willfully or 
recklessly carrying a weapon or explosive on an aircraft under 49 
U.S.C. 46505 was increased from 15 years to 20 years, or for any term 
of years or life if the offense resulted in the death of any person. 
That offense is covered by Sec. 2K1.5 (Possessing Dangerous Weapons or 
Materials While Boarding or Aboard an Aircraft).
    (8) The maximum statutory term of imprisonment for damaging or 
destroying an interstate gas or hazardous liquid pipeline facility 
under 49 U.S.C. 60123 was increased from 15 years to 20 years, or for 
any term of years or life if the offense resulted in the death of any 
person.
Part (D): Penalties for Terrorist Conspiracies
    Synopsis of Proposed Amendment: Section 811 of the Act amended the 
following offenses to provide that a conspiracy to commit any of those 
offenses shall subject the offender to the same penalties prescribed 
for the offense, commission of which was the object of the conspiracy: 
(1) Arson under 18 U.S.C. 81; (2) killings in federal facilities under 
18 U.S.C. 930(c); (3) willful or malicious injury to or destruction of 
communications lines, stations, or systems under 18 U.S.C. 1362; (4) 
destruction of buildings or property within the maritime of territorial 
jurisdiction of the United States under 18 U.S.C. 1363; (5) wrecking 
trains under 18 U.S.C. 1992; (6) providing material support to 
terrorists under 18 U.S.C. 2339A; (7) torture under 18 U.S.C. 2340A; 
(8) sabotage of nuclear facilities or fuel under 42 U.S.C. 2284; (9) 
interference with flight crew members and attendants under 49 U.S.C. 
46504; (10) willfully or recklessly carrying a weapon or explosive on 
an aircraft under 49 U.S.C. 46505; and (11) damaging or destroying an 
interstate gas or hazardous liquid pipeline facility under 49 U.S.C. 
60123(b).
    An issue for comment follows regarding whether the Commission 
should amend Sec. 2X1.1 (Attempt, Solicitation, or Conspiracy) to 
provide that conspiracies to commit any of these offenses are expressly 
covered by the applicable Chapter Two offense guidelines.
    Issue for Comment: The Commission requests comment regarding the 
appropriate treatment under the guidelines for conspiracies to commit 
certain terrorist offenses. Specifically, section 811 of the Act 
amended the following offenses to provide that a conspiracy to commit 
any of those offenses shall subject the offender to the same penalties 
prescribed for the offense, commission of which was the object of the 
conspiracy: (1) arson under 18 U.S.C. 81; (2) killings in federal 
facilities under 18 U.S.C. 930(c); (3) willful or malicious injury to 
or destruction of communications lines, stations, or systems under 18 
U.S.C. 1362; (4) destruction of buildings or property within the 
maritime of territorial jurisdiction of the United States under 18 
U.S.C. 1363; (5) wrecking trains under 18 U.S.C. 1992; (6) providing 
material support to terrorists under 18 U.S.C. 2339A; (7) torture under 
18 U.S.C. 2340A; (8) sabotage of nuclear facilities or fuel under 42 
U.S.C. 2284; (9) interference with flight crew members and attendants 
under 49 U.S.C. 46504; (10) willfully or recklessly carrying a weapon 
or explosive on an aircraft under 49 U.S.C. 46505; and (11) damaging or 
destroying an interstate gas or hazardous liquid pipeline facility 
under 49 U.S.C. 60123(b).
    Should the Commission amend Sec. 2X1.1 (Attempt, Solicitation, or 
Conspiracy) and the heading of each applicable Chapter Two Offense 
guideline to provide that conspiracies to commit any of these offenses 
are expressly covered by the applicable Chapter Two offense guideline? 
Should there be a special instruction in Sec. 2X1.1 (Attempt, 
Solicitation, or Conspiracy) to treat these offenses the same as the 
substantive offense which was the object of the conspiracy if the 
offense involved terrorism?
Part (E): Terrorism Adjustment in Sec. 3A1.4
    Synopsis of Proposed Amendment: This amendment adds an invited 
structured upward departure in Sec. 3A1.4 (Terrorism) for offenses that 
involve domestic terrorism or international terrorism but do not 
otherwise qualify as offenses that involved or were intended promote 
``federal crimes of terrorism'' for purposes of the terrorism 
adjustment in Sec. 3A1.4. An issue for comment also follows regarding 
whether terrorist offenses should be sentenced at or near the statutory 
maximum for the offense of conviction.
Proposed Amendment (Part (E):
    The Commentary to Sec. 3A1.4 is amended by striking Application 
Note 1 in its entirety and inserting the following:
    ``1. Federal Crime of Terrorism Defined--For purposes of this 
guideline, `federal crime of terrorism' has the meaning given that term 
in 18 U.S.C. 2332b(g)(5). Accordingly, in order for the adjustment 
under this guideline to apply, the offense (A) must be a felony that 
involved, or was intended to promote, one of the offenses specifically 
enumerated in 18 U.S.C. 2332b(g)(5)(B);

[[Page 2462]]

and (B) pursuant to 18 U.S.C. 2332b(g)(5)(A), must have been calculated 
to influence or affect the conduct of government by intimidation or 
coercion, or to retaliate against government conduct.''.
    The Commentary to Sec. 3A1.4 is amended in Note 2 by inserting 
``Computation of Criminal History Category.--'' before ``Under''.
    The Commentary to Sec. 3A1.4 is amended by adding at the end the 
following:
    ``3. Upward Departure Provision.--By the terms of the directive to 
the Commission in section 730 of Pub. L. 104-132, the adjustment 
provided by this guideline applies only to Federal crimes of terrorism. 
However, there may be cases that involve international terrorism (as 
defined in 18 U.S.C. 2331(1)) or domestic terrorism (as defined in 18 
U.S.C. 2331(5)) but to which the adjustment under this guideline 
technically does not apply. For example, there may be cases in which 
(A) the offense was calculated to influence or affect the conduct of 
government by intimidation or coercion, or to retaliate against 
government conduct but the offense involved, or was intended to 
promote, an offense other than one of the offenses specifically 
enumerated in 18 U.S.C. 2332b(g)(5)(B); or (B) the offense involved, or 
was intended to promote, one of the offenses specifically enumerated in 
18 U.S.C. 2332b(g)(5)(B) but the terrorist motive was to intimidate or 
coerce a civilian population, rather than to influence or affect the 
conduct of government by intimidation or coercion, or to retaliate 
against government conduct. In such cases an upward departure would be 
warranted, except that the resulting sentence may not exceed the top of 
the guideline range that would result if the adjustment under this 
guideline had been applied.''.
    Issues for Comment: The Commission generally requests comment on 
whether the current terrorism enhancement at Sec. 3A1.4 addresses the 
sentencing of terrorists appropriately. Should the Commission amend 
Sec. 3A1.4 to clarify that the adjustment may apply in the case of 
offenses that occurred after the commission of the federal crime of 
terrorism, e.g., a case in which the defendant, in violation of 18 
U.S.C. 2339A, concealed an individual who had committed a federal crime 
of terrorism.
    As an alternative to the upward departure provision in proposed 
Application Note 3 of Sec. 3A1.4, should the Commission provide an 
additional enhancement for terrorism offenses to which the current 
adjustment does not apply? If so, should this additional enhancement be 
the same as, or less severe than the current adjustment at Sec. 3A1.4?
Part (F): Money Laundering Offenses
    Synopsis of Proposed Amendment: This amendment amends Sec. 2S1.3 
(Structuring Transactions to Evade Reporting Requirements; Failure to 
Report Cash or Monetary Transactions; Failure to File Currency and 
Monetary Instrument Report; Knowingly Filing False Reports) to 
incorporate the following new money laundering provisions created by 
the Act. The amendment proposes to reference these provisions to the 
structuring guideline and proposes a number of changes to that 
guideline in order to more fully incorporate the new offenses. 
Specifically:
    (1) 31 U.S.C. 5318A(b), created by section 311 of the Act, 
authorizes the Secretary of the Treasury to (i) require domestic 
financial institutions to maintain records, file reports, or both, 
concerning transactions with financial institutions or jurisdictions 
outside the United States if the Secretary finds that such transactions 
are of ``primary money laundering concern''; (ii) require domestic 
financial institutions to provide identifying information about 
payable-through accounts on such transactions that are of ``primary 
money laundering concern''; and (iii) prohibit domestic financial 
institutions from opening or maintaining a payable-through account on 
behalf of a foreign banking institution, if any such transactions could 
be conducted. The applicable penalty provision, 31 U.S.C. 5322, 
provides for a maximum term of imprisonment of 5 years, or ten years if 
the defendant engaged in a pattern of unlawful activity.
    (2) 31 U.S.C. 5318(i), added by section 312 of the Act, requires 
financial institutions that established or maintains a private banking 
account or correspondent account in the United States for a non-United 
States person, to establish due diligence policies, procedures, and 
controls that are reasonably designed to detect and report money 
laundering through those accounts, and a new subsection (h), which 
prohibits financial institutions from establishing or maintaining a 
correspondent account for a foreign bank that does not have a physical 
presence in any country. The applicable penalty provision, 31 U.S.C. 
5322, provides for a maximum term of imprisonment of 5 years, or ten 
years if the defendant engaged in a pattern of unlawful activity.
    The amendment revises the definition of ``value of the funds'' for 
purposes of calculating the base offense level in Sec. 2S1.3(a) in 
order to incorporate these offenses into the guideline.
    The amendment also adds an enhancement if the defendant committed 
the offense as part of a pattern of unlawful activity. This enhancement 
takes into account the enhanced penalty provisions (imprisonment of not 
more than ten years) under 31 U.S.C. 5322(b) for such conduct if the 
pattern of unlawful activity involved more than $100,000 in a 12-month 
period.
    An issue for comment follows regarding how the Commission should 
treat these offenses.
    (3) 31 U.S.C. 5331, added by section 365 of the Act, which requires 
nonfinancial trades or businesses to report the receipt of more than 
$10,000 in coins and currency in one transaction or two or more related 
transactions. The maximum term of imprisonment is five years, or ten 
years if the defendant engaged in a pattern of unlawful activity.
    (4) 31 U.S.C. 5332, added by section 371 of the Act, prohibits 
concealing on one's person or any conveyance more than $10,000 in 
currency or other monetary instruments in order to evade currency 
reporting requirements (i.e., bulk cash smuggling). The maximum term of 
imprisonment is not more than five years. An issue for comment follows 
regarding whether an enhancement for bulk cash smuggling should be 
added to the guidelines.
    In addition, section 315 of the Act expanded the predicate offenses 
under 18 U.S.C. 1956 to include public corruption. An issue for comment 
follows regarding whether the money laundering guideline, Sec. 2S1.1, 
should be amended to add public corruption offenses to the list of 
offenses that qualify for the 6-level enhancement in subsection (b)(1) 
because of the seriousness of these offenses.
    The amendment also proposes to add a definition of ``terrorism'' 
for purposes of the 6-level enhancement in Sec. 2S1.1(b)(1). The 
definition of terrorism is added for consistency of application within 
the guidelines.
Proposed Amendment (Part (F))
    The Commentary to Sec. 2S1.1 captioned ``Application Notes'' is 
amended in Note 1 by adding at the end the following new paragraph:
    ```Terrorism'' means domestic terrorism (as defined in 18 U.S.C. 
2331(5)), a federal crime of terrorism (as defined in 18 U.S.C. 
2332b(g)(5)), or

[[Page 2463]]

international terrorism (as defined in 18 U.S.C. 2331(1)).''.
    Section 2S1.3 is amended in the title by adding at the end ``; Bulk 
Cash Smuggling; Establishing or Maintaining Prohibited Accounts''.
    Section 2S1.3(b) is amended by redesignating subdivision (2) as 
subdivision (3); and by inserting after subdivision (1) the following:
    ``(2) If the defendant committed the offense as part of a pattern 
of unlawful activity [involving more than $100,000 in a 12-month 
period], increase by 2 levels.''.
    The Commentary to Sec. 2S1.3 captioned ``Statutory Provisions'' is 
amended by inserting ``5318, 5318A(b),'' after ``5316,''; and by 
inserting ``, 5331, 5332'' after ``5326''.
    The Commentary to Sec. 2S1.3 captioned ``Application Note'' is 
amended by striking the text of Note 1 and inserting the following:
    ``Definition of `Value of the Funds'.--
    (A) In General.--Except as provided in subdivision (B), the `value 
of the funds' for purposes of subsection (a) means the amount of the 
funds involved in the structuring or reporting conduct.
    (B) Exceptions.--If the offense involved a correspondent account or 
payable-through account prohibited or restricted under 31 U.S.C. 
5318A(b)(5), the `value of the funds' means the total amount of funds 
routed through that account on behalf of a foreign jurisdiction, 
foreign financial institution, or class of transaction that the 
Secretary of the Treasury found to be of primary money laundering 
concern.
    If the offense involved a correspondent account for or on behalf of 
a foreign bank that does not have a physical presence in any country, 
in violation of 31 U.S.C. 5318, the `value of the funds' means the 
total amount of funds routed through that account on behalf of that 
foreign bank.
    The terms ``correspondent account'' and ``payable-through account`` 
have the meaning given those terms in 31 U.S.C. 5318A(e)(1).''.
    The Commentary to Sec. 2S1.3 captioned ``Application Note'' is 
amended in the heading by striking ``Note'' and inserting ``Notes''; 
and by adding at the end the following new note:
    ``2. Enhancement for Pattern of Unlawful Activity.--For purposes of 
subsection (b)(2), a pattern of unlawful activity means [at least two 
separate and unrelated occasions of unlawful activity] [unlawful 
activity involving a total amount of more than $100,000 in a 12-month 
period], without regard to whether any such occasion occurred during 
the course of the offense or resulted in a conviction for the conduct 
that occurred on that occasion.''.
    The Commentary to Sec. 2S1.3 captioned ``Background'' is amended in 
the first sentence by striking ``The'' and inserting ``Some of the'' 
and by adding at the end the following new paragraph:
    ``Other offenses covered by this guideline, under 31 U.S.C. 5318 
and 5318A, relate to records, reporting and identification 
requirements, and prohibited accounts involving certain foreign 
jurisdictions, foreign institutions, foreign banks, and other account 
holders.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``31 U.S.C. 5316'' the following new lines:

``31 U.S.C. 5318  2S1.3
31 U.S.C. 5318A(b)  2S1.3''.

    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``31 U.S.C. 5326'' the following new lines:

``31 U.S.C. 5331  2S1.3
31 U.S.C. 5332  2S1.3''.

    Issues for Comment: Offenses under 31 U.S.C. 5318A(b)(5) prohibit 
domestic financial institutions from opening or maintaining a payable-
through account on or behalf of a foreign banking institution, if any 
such transactions could be conducted. Offenses under 31 U.S.C. 5318(j) 
prohibit financial institutions from establishing or maintaining a 
correspondent account for a foreign bank that does not have a physical 
presence in any country. How should the guidelines treat such offenses? 
Specifically, should such offenses be referenced to Sec. 2S1.3? If so, 
does Sec. 2S1.3 adequately account for all the conduct prohibited by 
these offenses? For example, for purposes of computing the base offense 
level under subsection (a), should the definition of the ``value of the 
funds'' be revised to include the total amount of the funds maintained 
in a payable-through account or in a prohibited correspondent account 
for a foreign bank, or would such a calculation overestimate the 
seriousness of the offense? Is there a more appropriate method to 
determine the value of the funds in such cases?
    Offenses under 31 U.S.C. 5332, added by section 371 of the Act, 
prohibit concealing on one's person or any conveyance more than $10,000 
in currency or other monetary instruments in order to evade currency 
reporting requirements (i.e., bulk cash smuggling). Congress has 
indicated that these offenses are more serious than failing to file a 
customs report, even though the statutory maximum terms of imprisonment 
are the same for both of these offenses. See H. Rept. 107-250. The 
Commission requests comment on whether an enhancement should be added 
to Sec. 2S1.3 (Structuring Transactions to Evade Reporting 
Requirements) if the offense involved bulk cash smuggling.
    In addition, section 315 of the Act expanded the predicate offenses 
under 18 U.S.C. 1956 to include foreign public corruption. The 
Commission requests comment regarding whether the money laundering 
guideline, Sec. 2S1.1, should be amended to add all forms of public 
corruption offenses to the list of offenses that qualify for the 6-
level enhancement in subsection (b)(1) because of the seriousness of 
these offenses.
Part (G): Currency and Counterfeiting Offenses
    Synopsis of Proposed Amendment: Sections 374 and 375 of the Act 
increase the statutory maximum terms of imprisonment for a number of 
offenses involving counterfeiting domestic and foreign currency and 
obligations. The Act increased the statutory maximum terms of 
imprisonment to 20 years or 25 years for all counterfeiting offenses 
that had a statutory maximum term of imprisonment of 10 years or 15 
years. Penalties for counterfeiting foreign bearer obligations that had 
a maximum term of imprisonment of one, three, and five years were 
increased to ten years or, in some cases, 20 or 25 years. In response, 
an issue for comment is provided regarding whether guideline penalties 
should be increased in light of the increased statutory maximum 
penalties.
    Issue for Comment: Section 374 of the Act changed or otherwise 
increased the statutory maximum penalties for counterfeiting domestic 
currency obligations as follows: the statutory maximum penalty for 
violations of 18 U.S.C. 470 (counterfeit acts committed outside the 
United States) was changed from 20 years to the punishment ``provided 
for the like offense within the United States;'' the statutory maximum 
penalty for violations of 18 U.S.C. 471 (obligations or securities of 
the United States) was increased from 15 years to 20 years; the 
statutory maximum penalty for violations of 18 U.S.C. 472 (uttering 
counterfeit obligations or securities) was increased from 15 years to 
20 years; the statutory maximum penalty for violations of 18 U.S.C. 473 
(dealing in counterfeit obligations or securities) was increased from 
10 years to 20 years; the statutory maximum penalty for violations of 
18 U.S.C. 476 (taking impressions of tools used for obligations or 
securities) was increased

[[Page 2464]]

from 10 years to 25 years; the statutory maximum penalty for violations 
of 18 U.S.C. 477 (possessing or selling impressions of tools used for 
obligations or securities) was increased from 10 years to 25 years; the 
statutory maximum penalty for violations of 18 U.S.C. 484 (connecting 
different parts of different notes) was increased from 5 years to 10 
years; and the statutory maximum penalty for violations of 18 U.S.C. 
493 (bonds and obligations of certain lending agencies) was increased 
from 5 years to 10 years. The Commission requests comment regarding 
whether the guideline penalties for these offenses should be increased 
in light of the increased statutory maximum penalties.
    Section 375 of the Act increased the statutory maximum penalties 
for counterfeiting foreign currency obligations as follows: the 
statutory maximum penalty for violations of 18 U.S.C. 478 (foreign 
obligations or securities) was increased from 5 years to 10 years; the 
statutory maximum penalty for violations of 18 U.S.C. 479 (uttering 
foreign obligations) was increased from 3 years to 20 years; the 
statutory maximum penalty for violations of 18 U.S.C. 480 (possessing 
foreign counterfeit obligations) was increased from 1 year to 20 years; 
the statutory maximum penalty for violations of 18 U.S.C. 481 (plates, 
stones, or analog, digital, or electronic images for counterfeiting 
foreign obligations or securities) was increased from 5 years to 25 
years; the statutory maximum penalty for violations of 18 U.S.C. 482 
(foreign bank notes) was increased from 2 years to 20 years; and 
finally, the statutory maximum penalty for violations of 18 U.S.C. 483 
(uttering foreign counterfeit bank notes) was increased from 1 year to 
20 years. The Commission requests comment regarding whether the 
guideline penalties for these offenses should be increased in light of 
the increased statutory maximum penalties.
    Currently, offenses under 18 U.S.C. 478, 479, 480, 481, 482, and 
483 are referenced to Sec. 2B1.1. Should these offenses also be 
referenced to Sec. 2B5.1, and should that guideline be reworked in 
order to cover the counterfeiting of foreign obligations?
    Additionally, the guidelines provide in Secs. 2B1.1(b)(8)(B) a two-
level enhancement, with a minimum offense level of level 12, if a 
substantial portion of a fraudulent scheme was committed from outside 
the United States. Should this enhancement be amended to provide an 
alternative prong if the offense was intended to promote terrorism?
    Finally, the guidelines provide in Sec. 2B5.1(b)(5) a two-level 
enhancement if any part of the offense was committed outside the United 
States. Should this enhancement be amended to provide an alternative 
prong if the offense was intended to promote terrorism? Should an 
additional enhancement be provided if the offense was intended to 
promote terrorism, and if so, what should be the extent of the 
enhancement?
Part (H): Miscellaneous Amendments
    Synopsis of Proposed Amendment: This part of the amendment proposes 
to address eight miscellaneous issues related to terrorism:
    (1) It provides a definition of terrorism for purposes of the prior 
conviction enhancement in the illegal reentry guideline, Sec. 2L1.2. 
For consistency, the definition is the same definition proposed to be 
added to the money laundering guideline and to the Chapter Three 
terrorism adjustment.
    (2) It provides two options for amending the obstruction of justice 
guideline, Sec. 3C1.1, in response to section 319(d) of the Act. 
Section 319(d) amends the Controlled Substances Act at 21 U.S.C. 853(e) 
to require a defendant to repatriate any property that may be seized 
and forfeited and to deposit that property in the registry of the Court 
or with the U.S. Marshal. That section also states that the failure to 
comply with a protective order and an order to repatriate property 
``may also result in an enhancement of the sentence of the defendant 
under the obstruction of justice provision of the Federal Sentencing 
Guidelines.''
    (3) It amends the guideline on terms of supervised release, 
Sec. 5D1.2, in response to section 812 of the Act, which authorizes a 
term of supervised release of any term of years or life for a defendant 
convicted of a federal crime of terrorism the commission of which 
resulted in, or created a substantial risk of, death or serious bodily 
injury to another person.
    (4) It amends the theft, property destruction and fraud guideline, 
Sec. 2B1.1, to delete the special instruction pertaining to the 
imposition of not less than six months imprisonment for a defendant 
convicted under section 1030 of title 18, United States Code. Section 
814(f) of the Act directed the Commission to amend the guidelines ``to 
ensure that any individual convicted of a violation of section 1030 of 
title 18, United States Code, can be subjected to appropriate 
penalties, without regard to any mandatory minimum term of 
imprisonment.''
    (5) It adds a reference in the Statutory Index to the bribery 
guideline, Sec. 2C1.1, for the new offense created by section 329 of 
the Act. Section 329 prohibits a Federal official or employee, in 
connection with administration of the money laundering provisions of 
the Act, to corruptly demand, seek, receive, accept, or agree to 
receive or accept anything of value in return for being influenced in 
the performance of an official act, being influenced to commit or aid 
in committing any fraud on the United States, or being induced to do or 
omit to do any act in violation of official duties. The term of 
imprisonment is not more than 15 years.
    (6) It amends Sec. 2M5.1 (Evasion of Export Controls) to 
incorporate 18 U.S.C. 2332d, which prohibits a person, knowing or 
having reasonable cause to know that a country is designated under the 
Export Administration Act as a country supporting international 
terrorism, to engage in a financial transaction with the government of 
that country. The amendment also proposes to provide for application of 
the base offense level of level 26, for 18 U.S.C. 2332d offenses.
    (7) It proposes an issue for comment regarding how the Commission 
should treat an offense under 18 U.S.C. 1036. That offense, added by 
section 2 of the Enhanced Federal Security Act of 2000, Pub. L. 106-
547, prohibits, by fraud or pretense, the entering or attempting to 
enter any real property, vessel, or aircraft of the United States, or 
secure area of an airport. The maximum penalty is five years 
imprisonment.
    (8) It provides an issue for comment on how the guidelines should 
treat offenses involving fraudulent statements under 18 U.S.C. 1001, 
particularly such offenses committed in connection with acts of 
terrorism.
Proposed Amendment (Part (H)):
    Section 2B1.1 is amended by striking subsection (d) in its 
entirety.
    The Commentary to 2B1.1 captioned ``Background'' is amended by 
striking the last paragraph in its entirety.
    The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is 
amended in Note 1, paragraph (B), by adding at the end the following 
new paragraph:
    ``(vi) `Terrorism offense' means any offense involving domestic 
terrorism (as defined in 18 U.S.C. 2331(5)), a federal crime of 
terrorism (as defined in 18 U.S.C. 2332b(g)(5)), or international 
terrorism (as defined in 18 U.S.C. 2331(1)).''.
    Section 2M5.1 is amended in the title by adding at the end ``; 
Financial Transactions with Countries Supporting International 
Terrorism''.
    Section 2M5.1(a)(1) is amended by inserting ``(A)'' after ``if'' 
and by

[[Page 2465]]

inserting ``, or (B) the offense involved a financial transaction with 
a country supporting international terrorism;'' after ``evaded''.
    The Commentary to Sec. 2M5.1 captioned ``Statutory Provisions'' is 
amended by inserting ``18 U.S.C. 2332d;'' before ``50 U.S.C. App. secs. 
2401-2420''.
    The Commentary to Sec. 2M5.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``4. For purposes of subsection (a)(1)(B), ``a country supporting 
international terrorism'' means a country designated under section 6(j) 
of the Export Administration Act (50 U.S.C. App. 2405).''.
    [Option 1
    The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is 
amended in Note 4 by striking the period at the end of paragraph (i) 
and inserting a semicolon; and by inserting after paragraph (i) the 
following:
    ``(j) failing to comply with a restraining order or injunction 
issued pursuant to 21 U.S.C. 853(e) or with an order to repatriate 
property issued pursuant to 21 U.S.C. 853(p).''.]
    [Option 2
    The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is 
amended in Note 4 by adding at the end the following new paragraph:
    ``This adjustment may also apply if the defendant failed to comply 
with a restraining order or injunction issued pursuant to 21 U.S.C. 
853(e) or with an order to repatriate property issued pursuant to 21 
U.S.C. 853(p).''.]
    Section 5D1.2(a) is amended by adding at the end the following new 
paragraph:
    ``Notwithstanding subdivisions (1) through (3), the length of the 
term of supervised release shall be [not less than three years][life] 
for any offense listed in 18 U.S.C. 2332b(g)(5)(B), the commission of 
which resulted in, or created a foreseeable risk of, death or serious 
bodily injury to another person.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``18 U.S.C. 2332a'' the following new line:
    ``18 U.S.C. 2332d 2M5.1''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``50 U.S.C. App. Sec. 2410'' the following new line:
    ``Section 329 of the USA  2C1.1''.
    Patriot Act of 2001,
    Pub. L. 107-56.''.
    Issues for Comment: The Commission requests comment regarding how 
the Commission should treat an offense under 18 U.S.C. 1036. That 
offense, added by section 2 of the Enhanced Federal Security Act of 
2000, Pub. L. 106-547, prohibits, by fraud or pretense, the entering or 
attempting to enter any real property, vessel, or aircraft of the 
United States, or secure area of an airport. The maximum penalty is 
five years imprisonment. Should such offenses be referenced to 
Sec. 2B2.3 (Trespass)? If so, how should that guideline be amended to 
take into account the seriousness of these offenses (e.g., should the 
enhancement at Sec. 2B2.3(b)(1) be amended to cover trespasses 
occurring with respect to a vessel or aircraft of the United States, a 
secure area of an airport, and/or a secure area of a mass 
transportation system)?
    The Commission also requests comment on how the guidelines might 
more appropriately treat offenses under 18 U.S.C. 1001, particularly 
such offenses that are committed in connection with acts of terrorism. 
Currently, offenses under 18 U.S.C. 1001 (making false statements) are 
referenced in the Statutory Index to Sec. 2B1.1 (Theft, Property 
Destruction, and Fraud), and a cross reference at Sec. 2B1.1(c)(3) 
calls for application of another Chapter Two guideline if the conduct 
set forth in the count of conviction under section 1001 establishes an 
offense specifically covered by that other Chapter Two guideline.

2. Drugs

Synopsis of Proposed Amendment

In General
    The Commission has begun a long term assessment of the guidelines 
pertaining to drug offenses and is studying how it might amend the 
guidelines to (A) decrease somewhat the contribution of drug quantity 
on penalty levels for drug trafficking offenses generally; (B) more 
adequately account for aggravating and mitigating conduct that may be 
unrelated to drug quantity; (C) address various circuit conflicts that 
pertain to the drug guidelines; and (D) improve generally the overall 
operation of the drug guidelines.
    This amendment cycle, the Commission is particularly interested in 
considering amending the guidelines as they pertain to offenses 
involving cocaine base (``crack cocaine''). In deciding how best to 
address various concerns that have been expressed regarding the 
penalties for crack cocaine offenses, the Commission is considering 
adding a number of enhancements to the primary drug trafficking 
guideline, Sec. 2D1.1, to account more adequately for aggravating 
conduct sometimes associated not only with crack cocaine offenses, but 
also with drug trafficking offenses generally. The Commission is paying 
particular attention to the considerations stated in Pub. L. 104-38, 
the legislation enacted in 1995 disapproving the prior Commission's 
amendment which, among other things, would have equalized the penalties 
based on drug quantity for crack cocaine and powder cocaine. The 
proposed amendment contains a number of enhancements that directly 
address many of those considerations, especially those that focus on 
violence, and apply across drug type.
    As part of its assessment, and in light of the proposed 
enhancements which, if adopted, would apply across drug type, the 
Commission also is exploring how it might amend the guidelines to 
decrease penalties in appropriate cases in which the current penalty 
structure may overstate the culpability of the defendant. Accordingly, 
the Commission is studying a number of options, including a maximum 
base offense level for offenders who qualify for a mitigating role 
adjustment and a two level reduction for offenders who meet the 
``safety valve'' criteria set forth in Sec. 5C1.2 and have no prior 
convictions.
Base Offense Level
Mitigating Role Adjustment
    The proposed amendment provides a maximum base offense level of 
[24-32] if the defendant qualifies for an adjustment under Sec. 3B1.2 
(Mitigating Role). This base offense level cap is designed to limit 
somewhat the exposure of low level drug offenders to increased 
penalties based on drug quantity alone. The impact of the proposed base 
offense level cap will vary depending on the level at which the cap is 
set. If level 32 is adopted as the maximum base offense level for these 
defendants, 805 cases would be affected, and their average sentence 
would decrease from 82 months to 60 months. If the Commission adopted 
level 26, 2,062 cases would be affected, and their average sentence 
would decrease from 60 months to 37 months.
    Two issues for comment pertaining to mitigating role follow the 
proposed amendment. The first issue invites comment regarding whether 
application of the maximum base offense level should be limited in some 
manner, for example to defendants who receive a minimal role adjustment 
under Sec. 3B1.2 or who do not receive enhancements for aggravating 
conduct such as weapon involvement or bodily injury. The second issue 
invites comment regarding

[[Page 2466]]

whether the Commission also should address three circuit conflicts that 
remain pertaining to mitigating role, and if so, how should those 
conflicts be resolved. The issue then requests comment regarding 
whether the Commission should provide guidance on whether particular 
drug offenders who perform certain drug trafficking functions (e.g., 
courier or mule) should or should not receive a mitigating role 
adjustment.
Enhancements
Violence
    The proposed amendment also contains a number of enhancements. 
First, the proposed amendment contains a number of modifications to 
Sec. 2D1.1 to more adequately account for violence sometimes associated 
with drug trafficking offenses. Subsection (b)(1) currently provides a 
two level enhancement for offenses involving possession of a dangerous 
weapon, but it does not differentiate penalties to account for the 
defendant's weapon use, the seriousness of the weapon use, or the type 
and number of firearms involved.
    Accordingly, the proposed amendment modifies subsection (b)(1) to 
provide a graduated enhancement of [2] to [6] levels for weapon 
involvement to account more adequately for these factors. Specifically, 
proposed subsection (b)(1)(A) provides a [6] level enhancement if the 
defendant discharged a firearm. Proposed subsection (b)(1)(B) provides 
a [4] level enhancement if the defendant (i) brandished or otherwise 
used a dangerous weapon (including a firearm); or (ii) possessed a 
firearm described in 18 U.S.C. 921(a)(30) or 26 U.S.C. 5845(a). 
Proposed subsection (b)(1)(C) provides (i) a [2] level enhancement if a 
dangerous weapon (including a firearm) was possessed; or (ii) a [4] 
level enhancement if eight or more firearms were possessed. An option 
for an upward departure provision if the number of firearms involved in 
the offense substantially exceeded eight firearms is provided in 
proposed Application Note 3.
    The enhanced penalties provided by this part of the amendment are 
likely to apply in a minority of cases. In fiscal year 2000, 21.3 
percent of crack cocaine cases received either the enhancement for 
possession of a dangerous weapon in Sec. 2D1.1(b)(1) or a penalty for a 
violation of 18 U.S.C. 924(c), 18.7 percent of methamphetamine cases, 
10.6 percent of powder cocaine cases, 6.6 percent of heroin cases, and 
5.9 percent of marijuana cases. The proposed heightened penalties in 
subsection (b)(1) would apply in a subset of those cases.
    Proposed subsection (b)(2) provides a graduated enhancement of [2] 
to [8] levels for [death] or bodily injury, depending on the degree of 
injury. The enhancement does not apply to injury resulting from the use 
of the controlled substance because subsection (a) already provides 
heightened base offense levels that account for death or serious bodily 
injury resulting from such use. Proposed subsection (b)(2) provides an 
option for an eight level enhancement for death. The option is provided 
because the cross reference to Sec. 2A1.1 (First Degree Murder) 
provided by subsection (d) does not apply if a victim was killed under 
circumstances that would not constitute murder under 18 U.S.C. 1111 
(e.g., manslaughter). Proposed subsection (b)(2) also provides a 
bracketed option that limits the cumulative adjustments from 
subsections (b)(1) and (b)(2) to [10][12] levels because weapon use and 
bodily injury are so interrelated.
    Two issues for comment follow the proposed amendment pertaining to 
these proposed enhancements. The first issue invites comment regarding 
whether subsections (b)(1) and (b)(2) also should provide minimum 
offense levels, particularly in light of the minimum offense level 
currently provided in subsection (b)(5) for methamphetamine and 
amphetamine manufacturing offenses that create a substantial risk of 
harm to human life. The second issue invites comment regarding whether 
the Commission also should provide an enhancement that would apply if 
the offense involved an express or implied threat of death or bodily 
injury, and if so, what would be an appropriate increase and should the 
enhancement be applied cumulatively to the proposed enhancements in 
subsections (b)(1) and (b)(2).
Protected Locations, Underage or Pregnant Individuals
    The primary drug trafficking guideline, Sec. 2D1.1, currently does 
not provide an enhancement for drug distribution near protected 
locations or distribution involving underage or pregnant individuals. 
Section Sec. 3B1.4 (Using a Minor to Commit a Crime) provides a two 
level enhancement if the defendant used or attempted to use a person 
less than eighteen years of age to commit the offense. Enhanced 
penalties also are provided in Sec. 2D1.2 (Drug Offenses Occurring Near 
Protected Locations or Involving Underage or Pregnant Individuals), but 
a conviction for a statutory violation of drug trafficking in a 
protected location (21 U.S.C. 860) or to underage or pregnant 
individuals (21 U.S.C. 859 and 861) is necessary in order for 
Sec. 2D1.2 to be applied.
    The proposed amendment consolidates Sec. 2D1.2 (Drug Offenses 
Occurring Near Protected Locations or Involving Underage or Pregnant 
Individuals; Attempt or Conspiracy) into Sec. 2D1.1, and makes 
conforming changes to the Statutory Index for offenses currently 
referenced to Sec. 2D1.2 (21 U.S.C. 849, 859, 860, 861, and 963). 
Proposed subsection (b)(3) provides a two level enhancement if the 
defendant (A) was convicted of an offense under 21 U.S.C. 849[, 859] 
860[, or 861]; (B) distributed to a pregnant individual [knowing, or 
having a reasonable cause to believe, that the individual was pregnant 
at that time]; (C) distributed to a minor individual [knowing, or 
having a reasonable cause to believe, that the individual was a minor 
at that time]; or (D) used a minor individual to commit the offense or 
to assist in avoiding detection or apprehension for the offense. The 
requirement that the defendant be convicted of a statutory violation of 
drug trafficking in a protected location is retained because otherwise 
the enhancement could apply in an overly broad manner, particularly for 
trafficking offenses occurring in dense urban areas.
    A minimum offense level of [26] is provided if subdivision (C) or 
(D) applies. This minimum offense level is required by the directive to 
the Commission contained in section 6454 of the Anti-Drug Abuse Act of 
1988. An issue for comment follows the proposed amendment that invites 
comment regarding whether the minimum offense level should be extended 
to apply to any of the other subdivisions of proposed subsection 
(b)(3).
    The impact of this enhancement should be limited but it will allow 
increased sentences in appropriate cases. Compared to the 22,639 
defendants sentenced under Sec. 2D1.1 in fiscal year 2000, only 196 
were convicted under any of the statutes referenced to Sec. 2D1.2. The 
majority of those cases (89.3%) were for violations of 21 U.S.C. 860 
for trafficking in a protected location. There likely would be no net 
penalty increase from this part of the proposed amendment because the 
proposed amendment still would require a conviction under that statute. 
Also, in fiscal year 2000, only 131 defendants received the adjustment 
in Sec. 3B1.4 (Use of a Minor) and, for those cases, no net increase 
results from this part of the proposed amendment because proposed 
Application Note 22 expressly provides that if proposed

[[Page 2467]]

subsection (b)(3)(D) applies, Sec. 3B1.4 does not apply. This proposed 
application note corresponds to Application Note 2 in Sec. 3B1.4, which 
instructs that if the Chapter Two offense guideline incorporates use of 
a minor to commit a crime, Sec. 3B1.4 should not be applied.
Prior Criminal Conduct
    Proposed subsection (b)(8) provides a [2][4] level increase if the 
defendant committed any part of the instant offense after sustaining 
one felony conviction of [either a crime of violence or] a controlled 
substance offense. Chapter Four operates generally to provide increased 
punishment for past criminal conduct and includes a number of 
particular provisions often applicable in drug trafficking cases, such 
as the career offender provision. The proposed enhancement, however, 
may more adequately account for certain prior criminal conduct, 
particularly drug trafficking offenses. Proposed subsection (b)(8) also 
presents an option that extends application of the enhancement to 
convictions for prior crimes of violence.
    Proposed Application Note 23 defines ``controlled substance 
offense'' and ``crime of violence'' as those terms are defined in 
Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1) and defines 
``felony conviction'' as a prior adult federal or state conviction for 
an offense punishable by death or imprisonment for a term exceeding one 
year, regardless of whether such offense is specifically designated as 
a felony and regardless of the actual sentence imposed. (The 
definitions also are consistent with the approach taken in Sec. 2K2.1.) 
Proposed Application Note 23 also presents an option that limits 
application of proposed subsection (b)(8) to felony convictions that 
receive criminal history points under Sec. 4A1.1(a), (b), or (c). 
Additionally, proposed Application Note 23 expressly provides that 
prior felony convictions that trigger application of proposed 
subsection (b)(8) also are counted for purposes of determining criminal 
history points pursuant to Chapter Four, Part A (Criminal History).
    An issue for comment follows the proposed amendment that invites 
comment regarding whether a minimum offense level should be provided in 
proposed subsection (b)(8), similar to the minimum offense level 
provided in Sec. 2K2.1(a)(4).
Reduction for No Prior Convictions
    The proposed amendment provides, in proposed subsection (b)(9)(B), 
an additional reduction of two levels for defendants who previously 
have not been convicted of any offense and who currently qualify for a 
two level reduction for meeting the criteria set forth in subdivisions 
(1) through (5) of Sec. 5C1.2(a). This additional reduction is 
available only to defendants who meet that criteria and who previously 
have not been convicted of any offense. For purposes of applying the 
reduction, ``convicted'' means that the guilt of the defendant has been 
established, whether by guilty plea, trial, or plea of nolo contendere, 
without regard to the applicable time periods set forth in 
Sec. 4A1.2(e). [The definition also includes juvenile adjudications.] 
Although tribal, foreign, and military convictions are excluded for 
criminal history purposes under Chapter Four, such convictions are 
considered ``convictions'' for purposes of applying the proposed 
reduction, and any such conviction would disqualify the defendant from 
receiving the additional two level reduction. Expunged convictions and 
convictions for certain petty offenses set forth in Sec. 4A1.2(c)(2) 
are specifically excluded from the definition. By permitting the court 
to consider tribal, foreign, and military convictions, as well as 
permitting the court to consider convictions outside of the applicable 
time periods from Chapter Four, the proposed amendment differentiates 
penalties for defendants with zero or one criminal history point and 
defendants who do not have any prior convictions.
    This portion of the proposed amendment also clarifies the 
application of the current two level reduction in Sec. 2D1.1(b)(6) 
(redesignated as subsection (b)(9) by this proposed amendment) by 
stating more clearly that the reduction applies regardless of whether 
the defendant was subject to a mandatory minimum term of imprisonment. 
Additionally, the proposed amendment makes clear that Sec. 5C1.2(b), 
which provides a minimum offense level of 17 for certain defendants, is 
not pertinent to the application of the current two level reduction.
Maintaining Drug-Involved Premises and Ecstasy Offenses
    Concerns have been raised that Sec. 2D1.8 (Renting or Managing a 
Drug Establishment; Attempt or Conspiracy) does not adequately punish 
certain defendants convicted under 21 U.S.C. 856 (Establishment of 
manufacturing operations). That statute originally was enacted to 
target so-called ``crack houses'' and more recently has been applied to 
defendants who promote drug use at commercial dance parties frequently 
called ``raves.''
    Currently, Sec. 2D1.8 provides two alternative base offense level 
computations. For defendants who participate in the underlying 
controlled substance offense, the offense level from Sec. 2D1.1 applies 
pursuant to Sec. 2D1.8(a)(1). For defendants who had no participation 
in the underlying controlled substance offense other than allowing use 
of the premises, subsection (a)(2) provides a four level reduction from 
the offense level from Sec. 2D1.1 and a maximum offense level of 16. 
Because many club owners and rave promoters who do not participate in 
the underlying offense nonetheless facilitate, promote and profit, at 
least indirectly, from the use of illegal drugs (primarily 3,4-
methylenedioxymethamphetamine, more commonly known as MDMA or ecstasy), 
the maximum offense level of 16 may not adequately account for the 
seriousness of these offenses.
    The proposed amendment addresses this concern by consolidating 
Sec. 2D1.8 into Sec. 2D1.1 and making a conforming change to the 
Statutory Index. The proposed consolidation will have no impact on the 
offense level for cases in which Sec. 2D1.8(a)(1) previously applied. 
Proposed Application Note 24 effectively retains the four level 
reduction currently provided in Sec. 2D1.8(a)(2) by providing that a 
minimal role adjustment under Sec. 3B1.2 shall apply if the defendant 
(a) was convicted under 21 U.S.C. 856; and (b) had no participation in 
the underlying controlled substance offense other than allowing use of 
the premises.
    The maximum offense level for those defendants for which 
Sec. 2D1.8(a)(2) applied, however, will be increased because the level 
16 base offense level cap currently provided in Sec. 2D1.8(a)(2) 
effectively will be increased to [24-32], the proposed maximum base 
offense level for defendants who qualify for a mitigating role 
adjustment. In addition, under the proposed consolidation, the 
enhancements contained in Sec. 2D1.1 can apply to those defendants. 
Although the overall impact of the proposed consolidation on drug 
trafficking sentences will be minimal (only 69 defendants were 
sentenced under Sec. 2D1.8 in fiscal year 2000), 95.6 percent of 
defendants sentenced under Sec. 2D1.8 received a base offense level of 
16 and likely will be affected by the proposed consolidation.
    The proposed amendment also amends the Typical Weight Per Unit 
(Dose, Pill, or Capsule) Table in Application Note 11 of Sec. 2D1.1 to 
more accurately reflect the type and quantity

[[Page 2468]]

of ecstasy typically trafficked and consumed. Specifically, the 
proposed amendment adds a reference in the Typical Weight Per Unit 
Table for MDMA and sets the typical weight at 250 milligrams per pill. 
Ecstasy usually is trafficked and used as MDMA, not MDA, the drug 
currently listed in the table. In addition, the proposed amendment 
revises upward the typical weight for MDA from 100 milligrams to 250 
milligrams and deletes the asterisk that previously indicated that the 
weight per unit shown is the weight of the actual controlled substance, 
and not the weight of the mixture or substance containing the 
controlled substance. The absence of MDMA from the table and the use of 
an estimate of the actual weight of the controlled substance (MDA) 
rather than an estimate of the weight of the mixture or substance 
containing the controlled substance may create an incentive to 
improperly apply the MDA estimate in cases in which the drug involved 
is MDMA, resulting in underpunishment in some cases, and generally 
resulting in unwarranted disparity.
Simple Possession of Crack Cocaine
    Defendants convicted of possession of five or more grams of a 
mixture or substance containing cocaine base receive a mandatory 
minimum sentence of five years under 21 U.S.C. 844(a). The mandatory 
minimum for simple possession is unique to crack cocaine. The 
guidelines incorporate the mandatory minimum in Sec. 2D2.1 (Unlawful 
Possession; Attempt or Conspiracy) by providing a cross reference at 
subsection (b)(1) to Sec. 2D1.1 if the defendant is convicted of 
possession of more than five grams of crack. The proposed amendment 
deletes the cross reference to the drug trafficking guideline, but 
retains the heightened base offense level of 8.
    The cross reference to the drug trafficking guideline is deleted to 
more adequately differentiate between the seriousness of an offense 
involving the distribution of crack cocaine and an offense merely 
involving simple possession of crack cocaine, with no intent to 
distribute. The impact of the proposed deletion of the cross reference 
will have minimal impact on drug penalties overall because a total of 
only 67 defendants have been cross referenced from Sec. 2D2.1 to 
Sec. 2D1.1 in the past three fiscal years.
Proposed Amendment
    Section 2D1.1 is amended in the title by inserting ``Drug Offenses 
Occurring Near Protected Locations or Involving Underage or Pregnant 
Individuals; Renting or Managing a Drug Establishment;'' after 
``Offenses);''.
    Subsection 2D1.1(a)(3) is amended by striking ``below'' and 
inserting ``, except that if the defendant qualifies for an adjustment 
under Sec. 3B1.2 (Mitigating Role), the base offense level under this 
subsection shall not exceed level [24-32]''.
    Subsection 2D1.1(b)(1) is amended to read as follows:
    ``(1) (Apply the greatest):
    (A) If the defendant discharged a firearm, increase by [6] levels.
    (B) If the defendant (i) brandished or otherwise used a dangerous 
weapon (including a firearm); or (ii) possessed a firearm described in 
18 U.S.C. 921(a)(30) or 26 U.S.C. Sec. 5845(a), increase by [4] levels.
    (C) If (i) a dangerous weapon (including a firearm) was possessed, 
increase by [2] levels; or (ii) eight or more firearms were possessed, 
increase by [4] levels.''.
    Subsection 2D1.1(b)(5) is amended by striking ``greater'' and 
inserting ``greatest''.
    Subsection 2D1.1(b) is amended by redesignating subdivision (6) as 
subdivision (9); by redesignating subdivisions (2) through (5) as 
subdivisions (4) through (7), respectively; by inserting the following 
after subsection (b)(1):
    ``(2) If the offense involved [death or] bodily injury other than 
[death or] bodily injury that resulted from the use of the controlled 
substance, increase the offense level according to the seriousness of 
the injury:

------------------------------------------------------------------------
             Degree of injury                     Increase in level
------------------------------------------------------------------------
(A) Bodily Injury.........................  add [2] levels.
(B) Serious Bodily Injury.................  add [4] levels.
(C) Permanent or Life-Threatening Bodily    add [6] levels.
 Injury.
[(D) Death................................  add [8] levels.].
------------------------------------------------------------------------
[The cumulative adjustments from subsections (b)(1) and (b)(2) shall not
  exceed [10][12] levels.]

    (3) If the defendant (A) was convicted of an offense under 21 
U.S.C. 849, [859,] 860 [, or 861]; (B) distributed a controlled 
substance to a pregnant individual [knowing, or having a reasonable 
cause to believe, that the individual was pregnant at that time]; (C) 
distributed a controlled substance to a minor individual [knowing, or 
having a reasonable cause to believe, that the individual was a minor 
at that time]; or (D) used a minor individual to commit the offense or 
to assist in avoiding detection or apprehension for the offense, 
increase by [2] levels. If subdivision (C) or (D) applies and the 
offense level is less than [26], increase to level [26].'';

and by inserting after redesignated subdivision (7) (formerly 
subdivision (5)) the following:
    ``(8) If the defendant committed any part of the instant offense 
after sustaining one felony conviction of [either a crime of violence 
or] a controlled substance offense, increase by [2][4] levels.''.
    Subsection 2D1.1(b)(9) (formally subdivision (6)) is amended by 
inserting ``(A)'' before ``If the'' and by adding at the end the 
following:
    ``(B) If (i) subsection (A) applies; and (ii) the defendant 
previously has not been convicted of any offense, decrease by 2 
levels.''.
    The Commentary to Sec. 2D1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``849, 856, 859, 860, 861,'' before ``960(a)''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended by striking Note 3 in its entirety and inserting the following:
    ``3. Application of Subsection (b)(1).--
    (A) Definitions.--For purposes of this subsection:
    `Brandished', `dangerous weapon', `firearm', and `otherwise used' 
have the meaning given those terms in Application Note 1 of the 
Commentary to Sec. 1B1.1 (Application Instructions).
    `A firearm described in 18 U.S.C. 921(a)(30)' does not include a 
weapon described in 18 U.S.C. 922(v)(3).
    (B) Possession of Dangerous Weapon or Firearm.--Subsections 
(b)(1)(B)(ii) and (b)(1)(C) apply if a dangerous weapon or firearm was 
present, unless it is clearly improbable that the dangerous weapon or 
firearm was connected with the offense. For example, the enhancement 
would not apply if the defendant, arrested at his residence, had an 
unloaded hunting rifle in the closet.
    [(C) Upward Departure Based on Number of Firearms.--If the number 
of firearms involved in the offense substantially exceeded eight 
firearms, an upward departure may be warranted.]''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in the second paragraph of Note 8 by striking ``(b)(2)(B)'' and 
inserting ``(b)(4)(B)''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 11 in the table captioned ``Typical Weight Per Unit 
(Dose, Pill, or Capsule) Table'' in the line referenced to ``MDA'' by 
striking the asterisk after ``MDA''; and by striking ``100 mg'' and 
inserting ``250 mg''.

[[Page 2469]]

    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 11 in the table captioned ``Typical Weight Per Unit 
(Dose, Pill, or Capsule) Table'' by inserting after the line referenced 
to ``MDA'' the following:
    ``MDMA  250 mg''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 19 by striking ``(b)(5)(A)'' both places it appears and 
inserting ``(b)(7)(A)''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 20 by striking ``(b)(5)(B)'' and inserting 
``(b)(7)(B)''; and by striking ``subsection (b)(5)(C)'' and inserting 
``subsection (b)(7)(C)''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``21. Subsection (b)(2) Definitions.''For purposes of subsection 
(b)(2), ``bodily injury'', ``permanent or life-threatening bodily 
injury'', and ``serious bodily injury'' have the meaning given those 
terms in Application Note 1 of Sec. 1B1.1 (Application Instructions).
    22. Non-applicability of Sec. 3B1.4.--If subsection (b)(3)(D) 
applies, do not apply Sec. 3B1.4 (Using a Minor to Commit a Crime).
    23. Application of Subsection (b)(8).--
    (A) Definitions.--For purposes of this subsection:
    `Controlled substance offense' has the meaning given that term in 
Sec. 4B1.2(b) and Application Note 1 of the Commentary to Sec. 4B1.2 
(Definitions of Terms Used in Section 4B1.1).
    [`Crime of violence' has the meaning given that term in 
Sec. 4B1.2(a) and Application Note 1 of the Commentary to Sec. 4B1.2.]
    `Felony conviction' means a prior adult federal or state conviction 
for an offense punishable by death or imprisonment for a term exceeding 
one year, regardless of whether such offense is specifically designated 
as a felony and regardless of the actual sentence imposed. A conviction 
for an offense committed at age eighteen years or older is an adult 
conviction. A conviction for an offense committed prior to age eighteen 
years is an adult conviction if it is classified as an adult conviction 
under the laws of the jurisdiction in which the defendant was convicted 
(e.g., a federal conviction for an offense committed prior to the 
defendant's eighteenth birthday is an adult conviction if the defendant 
was expressly proceeded against as an adult).
    (B) [Qualifying Prior Felony Conviction and] Computation of 
Criminal History Points.--[For purposes of applying subsection (b)(8), 
use only a prior felony conviction that receives criminal history 
points under Sec. 4A1.1(a), (b), or (c).] A prior felony conviction 
that results in application of subsection (b)(8) also is counted for 
purposes of determining criminal history points under Chapter 4, Part A 
(Criminal History).
    24. Application of Sec. 3B1.2 for Defendant Convicted Under 21 
U.S.C. 856.--If the defendant (A) was convicted under 21 U.S.C. 856; 
and (B) had no participation in the underlying controlled substance 
offense other than allowing use of the premises, an adjustment under 
Sec. 3B1.2(a) for minimal role in the offense shall apply.
    25. Application of Subsection (b)(9).--
    (A) In General.--Subsection (b)(9)(A) applies regardless of whether 
the defendant was convicted of an offense that subjects the defendant 
to a mandatory minimum term of imprisonment. Section Sec. 5C1.2(b), 
which provides a minimum offense level of level 17, is not pertinent to 
the application of subsection (b)(9)(A).
    (B) Subsection (b)(9)(B).--For purposes of this subdivision, 
`convicted'--
    (i) means that the guilt of the defendant has been established, 
whether by guilty plea, trial, or plea of nolo contendere, without 
regard to the applicable time periods set forth in Sec. 4A1.2(e);
    [(ii)includes a juvenile adjudication other than an adjudication 
for a juvenile status offense or truancy;] and
    (iii)does not include an expunged conviction or a conviction for 
any offense set forth in Sec. 4A1.2(c)(2).''.
    The Commentary to Sec. 2D1.1 captioned ``Background'' is amended in 
the fifth paragraph by striking ``Specific Offense Characteristic 
(b)(2)'' and inserting ``Subsection (b)(4)''.
    The Commentary to Sec. 2D1.1 captioned ``Background'' is amended in 
the ninth paragraph by striking ``(b)(5)(A)'' and inserting 
``(b)(7)(A)''.
    The Commentary captioned ``Background'' is amended in the tenth 
paragraph by striking ``(b)(5)(B)'' and inserting ``(b)(7)(B)''.
    The Commentary to Sec. 2D1.1 captioned ``Background'' is amended by 
inserting after the fourth paragraph the following:
    ``The minimum offense level applicable to subsection (b)(3)(C) and 
(D) implements the direction to the Commission in Section 6454 of the 
Anti-Drug Abuse Act of 1988.''.
    Chapter Two, Part D, is amended by striking Sec. 2D1.2 and its 
accompanying commentary in its entirety.
    Chapter Two, Part D, is amended by striking Sec. 2D1.8 and its 
accompanying commentary in its entirety.
    Section 2D2.1 is amended by striking subsection (b)(1) in its 
entirety and by redesignating subsection (b)(2) as subsection (b)(1).
    The Commentary to Sec. 2D2.1 captioned ``Background'' is amended by 
striking the second paragraph in its entirety.
    Appendix A (Statutory Index) is amended by striking the following:

``21 U.S.C. 845  2D1.2
21 U.S.C. 845a  2D1.2
21 U.S.C. 845b  2D1.2''.

    Appendix A (Statutory Index) is amended in the line referenced to 
``21 U.S.C. 846'' by striking ``2D1.2,''; and by striking ``2D1.8,''.
    Appendix A (Statutory Index) is amended in the line referenced to 
``21 U.S.C. 849'' by striking ``2D1.2'' and inserting ``2D1.1''.
    Appendix A (Statutory Index) is amended in the line referenced to 
``21 U.S.C. 856'' by striking ``2D1.8''; and inserting ``2D1.1''.
    Appendix A (Statutory Index) is amended in the line referenced to 
``21 U.S.C. 859'' by striking ``2D1.2'' and inserting ``2D1.1''.
    Appendix A (Statutory Index) is amended in the line referenced to 
``21 U.S.C. 860'' by striking ``2D1.2'' and inserting ``2D1.1''.
    Appendix A (Statutory Index) is amended in the line referenced to 
``21 U.S.C. 861'' by striking ``2D1.2'' and inserting ``2D1.1''.
    Appendix A (Statutory Index) is amended in the line referenced to 
``21 U.S.C. 963'' by striking ``2D1.2,''; and by striking ``2D1.8,''.

Issues for Comment

    (1) The Commission requests comment concerning the sentencing of 
defendants convicted of cocaine base (``crack cocaine'') offenses under 
the sentencing guidelines. Currently, five grams of crack cocaine 
triggers a five year mandatory minimum sentence and is assigned a base 
offense level of 26 under the guidelines, and 50 grams of crack cocaine 
triggers a ten year mandatory minimum sentence and is assigned a base 
offense level of 32. This penalty structure has raised several 
concerns. First, concern has been expressed that the penalty structure 
does not adequately differentiate between crack cocaine offenders who 
engage in aggravating conduct and those crack cocaine offenders who do 
not. This lack of differentiation is caused by the fact that, for crack 
cocaine offenses, the Drug Quantity Table accounts for aggravating 
conduct that is sometimes

[[Page 2470]]

associated with crack cocaine (e.g., violence). Building these 
aggravating factors into the Drug Quantity Table essentially penalizes 
all crack cocaine offenders to some degree for aggravating conduct, 
even though a minority of crack cocaine offenses may involve such 
aggravating conduct. As a result, the penalty structure does not 
provide adequate differentiation in penalties among crack cocaine 
offenders and often results in penalties too severe for those offenders 
who do not engage in aggravating conduct. It has been suggested by some 
that proportionality could be better served (i) by providing sentencing 
enhancements that target offenders who engage in aggravating conduct 
such as violence or distribution in protected locations or to minors or 
pregnant individuals; and (ii) by reducing the penalties based solely 
on the quantity of crack cocaine to the extent that the Drug Quantity 
Table takes into account aggravating conduct. Such an approach may 
better provide proportionate sentencing because it will enable the 
court to punish more severely the defendant who actually engages in 
aggravating conduct.
    Second, concerns have been expressed that the current penalty 
structure for crack cocaine offenses overstates the drug trafficking 
function of crack cocaine offenders. In general, the statutory penalty 
structure for most, but not all, drug offenses was designed to provide 
a five year sentence for a serious drug trafficker (often a manager and 
supervisor of retail level trafficking) and a ten year sentence for a 
major drug trafficker (often the head of the organization that is 
responsible for creating and delivering very large quantities). The 
guidelines have incorporated this structure in Sec. 2D1.1 by linking 
the Drug Quantity Table to statutory mandatory minimums. The drug 
quantities that trigger the five year and ten year penalties for crack 
cocaine offenses, however, are thought by many to be too small to be 
associated with a serious or major trafficker, respectively. As a 
result, many low level retail crack traffickers are subject to 
penalties that may be more appropriate for higher level traffickers.
    Third, concerns have been expressed that these problems may result 
in an unwarranted disparate impact on minority populations, 
particularly African-Americans, as they comprise the majority of 
offenders sentenced for crack cocaine offenses.
    The Commission requests comment regarding whether the current 
penalty structure for crack cocaine offenses is appropriate, or whether 
some other penalty structure is more appropriate for guideline 
purposes. In deciding how these various concerns might be addressed, 
the Commission is reviewing Pub. L. 104-38, the legislation enacted in 
1995 disapproving the prior Commission's submitted amendment, which 
among other things equalized the penalties based on drug quantity for 
crack cocaine and powder cocaine. Any proposed change might contain 
enhancements that address a number of the considerations contained in 
that legislation, especially violence associated with drug trafficking. 
Other considerations set forth in Pub. L. 104-38 already may be 
adequately accounted for in the guidelines (e.g., obstruction of 
justice).
    The Commission also requests comment regarding the 100:1 drug 
quantity ratio for crack cocaine and powder cocaine offenses. Under the 
current penalty structure of the sentencing guidelines and 21 U.S.C. 
841, 100 times as much powder cocaine as crack cocaine is required to 
trigger the same five and ten year penalties based on drug quantity. 
The Commission requests comment regarding whether the 100:1 drug 
quantity ratio is appropriate, or whether some alternative ratio is 
more appropriate for guideline purposes. If so, how should the 
alternative ratio be achieved (i.e., by decreasing the penalties for 
crack cocaine, increasing the penalties for powder cocaine, or a 
combination of both) and why? How would any such change to the penalty 
structure for crack cocaine effect crime rates and deterrence? How 
would such change impact minority populations? Additionally, the 
Commission requests comment regarding whether the penalties for crack 
cocaine offenses should be more severe, less severe, or equal to the 
penalties for heroin or methamphetamine offenses. In particular, how do 
the addictiveness of crack cocaine, short term and long term 
physiological and psychological effects on the user, the violence 
associated with its use or distribution, its distribution trafficking 
pattern, and any secondary health consequences of its use (e.g., its 
effect on an infant who has been exposed prenatally to crack cocaine) 
compare to those associated with heroin or methamphetamine?
    (2) The proposed amendment provides enhancements that address harms 
caused by violence often associated with drug trafficking offenses. 
Specifically, the proposed weapon enhancement in subsection (b)(1) 
provides graduated penalties for weapon involvement, depending on the 
use, type, and number of weapons involved. Similarly, the proposed 
bodily injury enhancement in subsection (b)(2) provides graduated 
penalties depending on the degree of injury involved in the offense. 
The Commission requests comment regarding whether either or both of 
these two enhancements also should provide minimum offense levels. If 
so, what is the appropriate minimum offense level for the conduct 
described in each subdivision? For example, should the Commission 
provide a minimum offense level of 27 in the case of a defendant who 
discharges a firearm (subdivision (b)(1)(A)), on the basis that the 
discharge of a firearm creates a risk of harm similar to that which is 
accounted for by the minimum offense level currently provided in 
subsection (b)(5)? Should the Commission provide a minimum offense 
level of 27 for offenses involving permanent or life threatening injury 
for similar reasons?
    The Commission also requests comment regarding whether, in addition 
to the proposed enhancements pertaining to violence, it also should 
provide an enhancement that would apply if the offense involved an 
express or implied threat of death or bodily injury. (Note that 18 
U.S.C. 3553 and Sec. 5C1.2 (Limitation on Applicability of Statutory 
Mandatory Minimum Sentences in Certain Cases) preclude a ``safety 
valve'' reduction for any defendant who uses violence or credible 
threats of violence in connection with the offense.) If so, what would 
be an appropriate increase and should the enhancement be applied 
cumulatively to the proposed enhancements in subsections (b)(1) and 
(b)(2)?
    (3) The proposed amendment consolidates Secs. 2D1.2 (Drug Offense 
Occurring Near Protected Locations or Involving Underage or Pregnant 
Individuals; Attempt or Conspiracy) and 2D1.1 and also provides a new 
enhancement in Sec. 2D1.1(b)(3) to cover the conduct previously covered 
by Sec. 2D1.2. That enhancement provides a minimum offense level of 26 
for offenses in which the defendant distributed a controlled substance 
to a minor or used a minor to commit the offense or to assist in 
avoiding detection or apprehension for the offense. This minimum 
offense level complies with the directive to the Commission in section 
6454 of the Anti-Drug Abuse Act of 1988 and maintains the penalties 
that currently exist for such offenses under Sec. 2D1.2. The Commission 
requests comment regarding whether it should extend this minimum 
offense level to the other conduct contained in proposed 
Sec. 2D1.1(b)(3).
    (4) Subsection (b)(8) of the proposed amendment provides a 
[two][four] level enhancement if the defendant

[[Page 2471]]

committed any part of the instant offense after sustaining one felony 
conviction for either a crime of violence or a controlled substance 
offense. The Commission requests comment regarding whether proposed 
subsection (b)(8) also should provide a minimum offense level. If so, 
what offense level would be appropriate?
    (5) Subsection (a)(3) of the proposed amendment provides a maximum 
base offense level of [24-32] for a defendant who qualifies for an 
adjustment under Sec. 3B1.2 (Mitigating Role). The Commission requests 
comment regarding whether application of this maximum base offense 
level should be limited to only defendants who receive an adjustment 
for minimal role in the offense (as opposed to an adjustment for either 
minimal role or minor role in the offense). Additionally, should 
application of the maximum base offense level be predicated on the 
absence of certain aggravating factors, such as bodily injury or 
dangerous weapon possession? Should any other limitation apply?
    (6) The Commission recently amended Sec. 3B1.2 (Mitigating Role) to 
resolve a circuit conflict regarding whether a defendant who is 
accountable under Sec. 1B1.3 (Relevant Conduct) only for conduct in 
which the defendant was personally involved, and who performs a limited 
function in concerted criminal activity, is precluded from 
consideration of a mitigating role adjustment under Sec. 3B1.2. See 
USSG Appendix C (Amendment 635, effective November 1, 2001). Under the 
approach adopted by the Commission, even in a case in which a defendant 
is liable under Sec. 1B1.3 only for conduct in which the defendant was 
personally involved (e.g., drug quantities personally handled by the 
defendant), the court can apply the traditional Sec. 3B1.2 analysis to 
determine whether the defendant should receive a reduction for 
mitigating role.
    The amendment, however, did not address three additional circuit 
conflicts pertaining to mitigating role:
    (A) Whether, in determining if the defendant is substantially less 
culpable than the ``average participant'', the court should assess the 
defendant's conduct in relation not only to the conduct of co-
conspirators, but also to the conduct of a hypothetical defendant who 
performs similar functions in similar offenses involving multiple 
participants. Compare United States v. Ajmal, 67 F.3d 12, 18 (2d Cir. 
1995) (holding that defendant only played a minor role in the offense 
if he was less culpable than his co-conspirators as well as the average 
participant in such a crime); United States v. Thomas, 932 F.2d 1085, 
1092 (5th Cir. 1991) (holding that defendant was not entitled to minor 
role adjustment because his role ``as greater than the minimal 
participation exercised by the defendant to whom we have previously 
allowed a downward adjustment''); United States v. Caruth, 930 F.2d 
811, 815 (10th Cir. 1991) (``The Guidelines permit courts not only to 
compare a defendant's conduct with that of others in the same 
enterprise, but also with the conduct of an average participant in that 
type of crime.''); United States v. Daughtrey, 874 F.2d 213, 216 (4th 
Cir. 1989) (holding that the court should measure both the relative 
culpability of each participant in relation to the relevant conduct and 
the defendant's acts and relative culpability against an objective 
standard): United States v. Rotolo, 950 F.2d 70, 71 (1st Cir. 1991) 
(distinguishing between aggravating and mitigating roles and suggesting 
that ``substantially less culpable than the average participant'' means 
an objective comparison between the defendant and average person 
engaged in such conduct); United States v. Owusu, 199 F.3d 329, 337 
(6th Cir. 2000) (to qualify for a minor role reduction, ``a defendant 
must be less culpable than most other participants and substantially 
less culpable than the average participant''); United States v. 
Westerman, 973 F.2d 1422 (8th Cir. 1992) (whether role in the offense 
adjustments are warranted is to be determined not only by comparing the 
acts of each participant in relation to the relevant conduct for which 
the participant is held accountable, Sec. 1B1.3, but also by measuring 
each participant's individual acts and relative culpability against the 
elements of the offense of conviction) with United States v. Rojas-
Millan, 234 F.3d 464, 473 (9th Cir. 2000) (rejected the consideration 
of comparisons against the hypothetical ``average participant'' in the 
type of crime involved); United States v. Scroggins, 939 F.2d 416 (7th 
Cir. 1991) (ruled that a mitigating role assessment must include a 
comparison of the acts of each participant in relation to the relevant 
conduct for which the participant is held accountable under 
Sec. 1B1.3); United States v. Valencia, 907 F.2d 671 (7th Cir. 1990) 
(the Sec. 3B1.2 adjustment requires us to focus on the defendant's 
``role in the offense,'' rather than unspecified criminal conduct that 
is not part of the offense).
    (B) Whether, in determining if a mitigating role adjustment is 
warranted, the court may consider only the relevant conduct for which 
the defendant is held accountable at sentencing, or whether it may also 
consider ``expanded'' relevant conduct (additional conduct that would 
appear to be properly includable under Sec. 1B1.3 but was not 
considered in determining the defendant's offense level). Compare 
United States v. James, 157 F.3d 1218, 1220 (10th Cir. 1998) (holding 
that defendant's role in the offense is determined on the basis of the 
relevant conduct attributed to him in calculating his base offense 
level); United States v. Burnett, 66 F.3d 137, 140 (7th Cir. 1995) 
(same); United States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995) (per 
curiam) (same); United States v. Lampkins, 47 F.3d 175, 180 (7th Cir. 
1995) (same); United States v. Gomez, 31 F.3d 28, 31 (2d Cir. 1994) 
(per curiam) (same); United States v. Lucht, 18 F.3d 541, 555-56 (8th 
Cir. 1994) (same); United States v. Olibrices, 979 F.2d 1557, 1560 
(D.C. Cir. 1992) (``To take the larger conspiracy into account only for 
purposes of making a downward adjustment in the base level would 
produce the absurd result that a defendant involved both as a minor 
participant in a larger distribution scheme for which she was not 
convicted, and as a major participant in a smaller scheme for which she 
was convicted, would receive a shorter sentence than a defendant 
involved solely in the smaller scheme.'') with United States v. Assisi-
Zapata, 148 F.3d 236, 240-41 (3d Cir. 1998) (relying on this Court's 
panel opinion in De Varan and holding that a court must examine all 
relevant conduct even if defendant is sentenced only for own acts); 
United States v. Rails, 106 F.3d 1416, 1419 (9th Cir.) (recognizing 
that ``[the defendant's role in relevant conduct may provide a basis 
for an adjustment even if that conduct is not used to calculate the 
defendant's base offense level'' but holding that defendant was ``not 
entitled to a reduction in his sentence simply because he was tied to a 
larger drug trafficking scheme''), cert. denied, 520 U.S. 1282 (1997); 
United States v. Demers, 13 F.3d 1381, 1383 (9th Cir. 1994) (declining 
``to restrict the scope of relevant conduct on which a downward 
adjustment may be based to the relevant conduct that is included in the 
defendant's base offense level.'').
    (C) Whether the court may depart downward from the applicable 
guideline offense level for defendants who, but for the law enforcement 
status of other participants, would have received a mitigating role 
adjustment under Sec. 3B1.2. Compare United States v. Speenburgh, 990 
F.2d 72, 75 (2d Cir. 1993) (if a district court would have decreased 
the defendant's offense level under section 3B1.2 had the other

[[Page 2472]]

person involved in the offense been criminally responsible, it should 
likewise have the discretion to depart downward between two and four 
levels, based on the defendant's culpability relative to that of the 
Government agent); United States v. Bierley, 922 F.2d 1061 (3d Cir. 
1990) (``when an adjustment for Role in the Offense is not available by 
strict application of the Guideline language, the court has power to 
use analogic reasoning to depart from the guidelines when the basis for 
departure is conduct similar to that encompassed in the Role in the 
Offense Guideline.''); United States v. Valdez-Gonzalez, 957 F.2d 643, 
648 (9th Cir. 1992), (``[I]n view of the limited application of 
Sec. 3B1.2 minimal participant adjustment, the Sentencing Commission 
had failed to consider adequately the role of the defendants in conduct 
surrounding the offense of conviction'') with United States v. 
Costales, 5 F.3d 480 (11th Cir. 1993) (held that a defendant was not 
entitled to an adjustment or ``analogous'' downward departure from the 
applicable guideline range where the defendant was the only 
``criminally responsible'' participant in a crime).
    The proposed amendment's inclusion of a maximum base offense level 
in Sec. 2D1.1 for a defendant who qualifies for an adjustment under 
Sec. 3B1.2 raises the issue of whether the Commission also should 
address some or all of these remaining circuit conflicts. The 
Commission therefore requests comment regarding whether, in conjunction 
with the proposed maximum base offense level for mitigating role 
defendants, it should resolve any of these circuit conflicts and, if 
so, how should the Commission resolve them. If the Commission does 
address these issues of circuit conflict, should the Commission also 
amend Sec. 3B1.2 to provide guidance on whether particular drug 
offenders who perform certain drug trafficking functions (e.g., courier 
or mule) should or should not receive a mitigating role adjustment?

3. Alternatives to Imprisonment

    Synopsis of Amendment: This amendment provides three options to 
increase sentencing alternatives in Zone C of the Sentencing Table 
(Chapter Five, Part A).
    Currently, under Secs. 5B1.1 and 5C1.1, the court has three options 
when sentencing a defendant whose offense level is in Zone B. The court 
may impose (A) a sentence of imprisonment; (B) a sentence of probation 
with a condition of confinement sufficient to satisfy the minimum of 
the applicable guideline range; or (C) a ``split-sentence'' in which 
the defendant must serve at least one month of imprisonment followed by 
a term of supervised release with a condition of confinement sufficient 
to satisfy the remainder of the minimum of the applicable guideline 
range.
    When the defendant's offense level is in Zone C, the court may 
impose either (A) a sentence of imprisonment; or (B) a ``split-
sentence'' in which the defendant must serve at least one-half of the 
minimum of the applicable guideline range followed by a term of 
supervised release with a condition of confinement sufficient to 
satisfy the remainder of the minimum of the applicable guideline range.
    Option One amends the Sentencing Table by combining Zones B and C, 
thereby providing offenders at offense levels 11 and 12 with the 
sentencing options currently available in Zone B: (A) a probation 
sentence with a condition of confinement sufficient to satisfy the 
minimum of the applicable guideline range; and (B) one month 
imprisonment followed by a term of supervised release with a condition 
of confinement sufficient to satisfy the remainder of the minimum of 
the applicable guideline range (a ``split-sentence''). This option 
reduces the amount of imprisonment required for the ``split-sentence'' 
from four or five (at offense levels 11 and 12, respectively) months to 
one month.
    Option Two also increases sentencing alternatives in Zone C of the 
Sentencing Table by combining Zones B and C, thereby providing 
offenders at offense levels 11 and 12 with additional sentencing 
options similar to Option One. This option differs from Option One in 
that it limits the use of home detention for defendants in which the 
minimum of the guideline range is at least eight months (i.e., current 
Zone C). In such cases, the defendant must satisfy the minimum of the 
applicable guideline range by some form of confinement, but, unlike 
Option I, the defendant must serve at least half of that minimum in a 
form of confinement other than home detention. This ensures that these 
more serious offenders will serve at least eight or ten (at offense 
levels 11 and 12, respectively) months in some form of confinement, of 
which at least four or five (at offense levels 11 and 12, respectively) 
months shall be served in some form of confinement other than home 
detention.
    Option Three also increases sentencing alternatives in Zone C of 
the Sentencing Table. However, it differs from Option One and Option 
Two in that it limits the expansion of the sentencing options available 
in Zone B to offenders in criminal history Category I of Zone C of the 
Sentencing Table. This option provides these less serious offenders 
with the same sentencing options available to offenders in Zone B. 
Under this option, offenders in Categories II through VI will not 
benefit from additional sentencing alternatives.

Proposed Amendment

Option 1
    The Sentencing Table in Chapter Five, Part A, is amended by 
striking the lines between Zones B and C; by redesignating Zones B and 
C as Zone B; and by redesignating Zone D as Zone C.
    The Commentary to Sec. 5B1.1 is amended in subdivision (a) of Note 
1 by striking ``(i.e., the minimum term of imprisonment specified in 
the applicable guideline range is zero months)''.
    The Commentary to Sec. 5B1.1 is amended in subdivision (b) of Note 
1 by striking ``(i.e., the minimum term of imprisonment specified in 
the applicable guideline range is at least one but not more than six 
months)''; and by striking ``where'' and inserting ``in a case in 
which''.
    The Commentary to Sec. 5B1.1 is amended in Note 1 by redesignating 
subdivisions (a) and (b) as subdivisions (A) and (B), respectively.
    The Commentary to Sec. 5B1.1 is amended in Note 2 by striking 
``Where'' and inserting ``In a case in which''; by striking ``or D''; 
and by striking ``(i.e., the minimum term of imprisonment specified in 
the applicable guideline range is eight months or more)''.
    Section 5C1.1(c)(1) is amended by striking ``or''.
    Section 5C1.1(f) is amended by striking ``Zone D'' and inserting 
``Zone C''.
    Section 5C1.1 is amended by striking subsection (d) in its 
entirety; and by redesignating subsections (e) and (f) as subsections 
(d) and (e), respectively.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended in the first paragraph of Note 2 by striking ``(i.e., the 
minimum term of imprisonment specified in the applicable guideline 
range is zero months)''; and by striking ``Where'' and inserting ``In a 
case in which''.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended in Note 3 by striking ``where'' each place it appears and 
inserting ``in a case in which''; in the first paragraph by striking 
``(i.e., the minimum term of imprisonment specified in the applicable 
guideline range is at least one but not more than six months)''; in 
paragraph (C) by striking ``must'' and

[[Page 2473]]

inserting ``shall''; and in the last paragraph by inserting ``of `` 
after ``two months''.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended by striking Note 4 in its entirety; and by redesignating Notes 
5 through 8 as Notes 4 through 7, respectively.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended in redesignated Note 4 (formerly Note 5) by striking ``(e)'' 
and inserting ``(d)''.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended in redesignated Note 6 (formerly Note 7) by striking 
``subsections (c) and (d)'' and inserting ``subsection (d)''.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended in redesignated Note 7 (formerly Note 8) by striking ``(f)'' 
and inserting ``(e)''; by striking ``where'' and inserting ``in a case 
in which''; by striking ``Zone D'' and inserting ``Zone C''; by 
striking ``(i.e., the minimum term of imprisonment specified in the 
applicable guideline range is twelve months or more)''; and by striking 
``subsection (e)'' and inserting ``subsection (d)''.
Option Two
    The Sentencing Table in Chapter Five, Part A, is amendment by 
striking the lines between Zones B and C; by redesignating Zones B and 
C as Zone B; and by redesignating Zone D as Zone C.
    The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is 
amended in subdivision (a) of Note 1 by striking ``Where'' and 
inserting ``In a case in which''; and by striking ``(i.e., the minimum 
term of imprisonment specified in the applicable guideline range is 
zero months)''.
    The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is 
amended in subdivision (b) of Note 1 by striking ``Where'' and 
inserting ``In a case in which''; and by striking ``(i.e., the minimum 
term of imprisonment specified in the applicable guideline range is at 
least one but not more than six months)''; by striking ``In such 
cases'' and inserting ``(i) Except as provided in subdivision (ii)''; 
by striking ``where'' and inserting ``in a case in which''; and by 
inserting after ``at least two months.'' the following:
    ``The court, of course, may impose a sentence at a point within 
that 2-7 month range that is higher than the minimum sentence. For 
example, a sentence of probation with a condition requiring six months 
of community confinement or home detention (under subsection (c)(3)) 
would be sufficient to satisfy the requirements of this subdivision.
    (ii) The court may impose probation in a case in which the minimum 
term of the applicable guideline range is at least eight months, but 
only if the court imposes a condition (I) that the defendant shall 
serve a period of confinement sufficient to satisfy the minimum term of 
imprisonment specified in the applicable guideline range; except that 
at least one-half of that minimum term shall be served in a form of 
confinement other than home detention. For example, in a case in which 
the offense level is 11 and the criminal history category is I, the 
guideline range from the Sentencing Table is 8-14 months. In such a 
case, the court may impose a sentence of probation only if it imposes a 
condition or conditions requiring at least eight months of confinement, 
at least four months of which shall be in a form other than home 
detention (e.g., community confinement or intermittent confinement (or 
a combination of community confinement and intermittent confinement 
totaling at least four months)). The court, of course, may impose a 
sentence at a point within that 8-14 month range that is higher than 
the minimum sentence. For example, in a case in which the court imposes 
a sentence of 14 months, the court may impose a sentence of probation 
with any combination of community confinement, intermittent 
confinement, or home detention, as long as at least four of those 
months are served in a form of confinement other than home 
detention.''.
    The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is 
amended in Note 1 by redesignating subdivisions (a) and (b) as 
subdivisions (A) and (B), respectively.
    The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``Where'' and inserting ``In a case in 
which''; by striking ``or D''; and by striking ``(i.e., the minimum 
term of imprisonment specified in the applicable guideline range is 
eight months or more)''.
    Section 5C1.1(c)(1) is amended by striking ``or''.
    Section Sec. 5C1.1(c) is amended by striking subsection (2) in its 
entirety and by inserting the following:
    ``(2) a sentence of imprisonment that includes a term of supervised 
release with a condition that substitutes community confinement or home 
detention according to the schedule in subsection (d), except that (A) 
at least one month shall be satisfied by actual imprisonment; and (B) 
the remainder of the minimum term specified in the guideline range must 
be satisfied by community confinement or home detention, except that if 
the minimum term of the applicable guideline range is at least eight 
months, at least one-half of that minimum term shall be served in a 
form of confinement other than home detention; or''.
    Section Sec. 5C1.1(c)(3) is amended by striking ``(e)'' and 
inserting ``(d) sufficient to satisfy the minimum term of imprisonment 
specified in the guideline range, except that if the minimum term of 
the applicable guideline range is at least eight months, at least one-
half of that minimum term shall be served in a form of confinement 
other than home detention.''.
    Section Sec. 5C1.1 is amended by striking subsection (d) in its 
entirety; and by redesignating subsections (e) and (f) and subsections 
(d) and (e), respectively.
    Redesignated section Sec. 5C1.1(e) (formerly Sec. 5C1.1(f)) is 
amended by striking ``Zone D'' and inserting ``Zone C''.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``(i.e., the minimum term of imprisonment 
specified in the applicable guideline range is zero months)''; and by 
striking ``Where'' and inserting ``In a case in which''.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended by striking Note 3 in its entirety; and by inserting the 
following:
    ``3. Subsection (c) provides that in a case in which the applicable 
guideline range is in Zone B of the Sentencing Table , the court has 
three options:
    (A) It may impose a sentence of imprisonment.
    (B) (i) Except as provided in subdivision (ii), the court may 
impose probation only if it imposes a condition or combination of 
conditions requiring a period of community confinement, home detention, 
or intermittent confinement sufficient to satisfy the minimum term of 
imprisonment specified in the guideline range. For example, in a case 
in which the offense level is 7 and the criminal history category is 
II, the guideline range from the Sentencing Table is 2-8 months. In 
such a case, the court may impose a sentence of probation only if it 
imposes a condition or conditions requiring at least two months of 
community confinement, home detention, or intermittent confinement, or 
a combination of community confinement, home detention, and 
intermittent confinement totaling at least two months. The court, of 
course, may impose a sentence at a point within that 2-7 month range 
that is higher than the minimum sentence. For example, a sentence of 
probation with a condition

[[Page 2474]]

requiring six months of community confinement or home detention (under 
subsection (c)(3)) would be sufficient to satisfy the requirements of 
this subdivision.
    (ii) The court may impose probation in a case in which the minimum 
term of the applicable guideline range is at least eight months, but 
only if the court imposes a condition (I) that the defendant shall 
serve a period of confinement sufficient to satisfy the minimum term of 
imprisonment specified in the applicable guideline range; except that 
at least one-half of that minimum term shall be served in a form of 
confinement other than home detention. For example, in a case in which 
the offense level is 11 and the criminal history category is I, the 
guideline range from the Sentencing Table is 8-14 months. In such a 
case, the court may impose a sentence of probation only if it imposes a 
condition or conditions requiring at least eight months of confinement, 
at least four months of which shall be in a form other than home 
detention (e.g., community confinement or intermittent confinement (or 
a combination of community confinement and intermittent confinement 
totaling at least four months)). The court, of course, may impose a 
sentence at a point within that 8-14 month range that is higher than 
the minimum sentence. For example, in a case in which the court imposes 
a sentence of 14 months, the court may impose a sentence of probation 
with any combination of community confinement, intermittent 
confinement, or home detention, as long as at least four of those 
months are served in a form of confinement other than home detention.
    (C) (i) Except as provided in subdivision (ii), it may impose a 
sentence of imprisonment that includes a term of supervised release 
with a condition that requires community confinement or home detention. 
In such case, at least one month shall be satisfied by actual 
imprisonment and the remainder of the minimum term specified in the 
guideline range must be satisfied by community confinement or home 
detention. For example, in a case in which the guideline range is 4-10 
months, a sentence of imprisonment of one month followed by a term of 
supervised release with a condition requiring three months of community 
confinement or home detention would satisfy the minimum term of 
imprisonment specified in the guideline range. The court, of course, 
may impose a sentence at a point within that 4-10 month range that is 
higher than the minimum sentence. For example, a sentence of two months 
of imprisonment followed by a term of supervised release with a 
condition requiring four months of community confinement or home 
detention (under subsection (c)(2)) would be within the guideline 
range.
    (ii) If the minimum term of the applicable guideline range is at 
least eight months, it may impose a sentence of imprisonment that 
includes a term of supervised release with a condition that requires 
community confinement or home detention. In such case, (I) at least one 
month shall be satisfied by actual imprisonment, (II) the remainder of 
the minimum term specified in the guideline range must be satisfied by 
community confinement or home detention, except that at least one-half 
of that minimum term shall be served in a form of confinement other 
than home detention. For example, in a case in which the applicable 
guideline range is 8-14 months, the court must impose a sentence of 
actual imprisonment of one month followed by a term of supervised 
release requiring a condition or conditions of at least seven months of 
confinement, at least four months of which shall be in a form other 
than home detention (e.g., community confinement). The court, of 
course, may impose a sentence at a point within that 8-14 month range 
that is higher than the minimum sentence. For example, in a case in 
which the court imposes a sentence of 14 months, the court must impose 
a sentence of actual imprisonment of at least one month followed by a 
term of supervised release requiring a condition or conditions of at 
least thirteen months of confinement, at least four months of which 
shall be in a form other than home detention (e.g., community 
confinement).''.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended by striking Note 4 in its entirety.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 5 through 8 as Notes 4 through 7, 
respectively.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended in redesignated Note 4 (formerly Note 5) by striking ``(e)'' 
and inserting ``(d)''.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended in redesignated Note 6 (formerly Note 7) by striking 
``subsections (c) and (d)'' and inserting ``subsection (d)''.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended in redesignated Note 7 (formerly Note 8) by striking ``(f)'' 
and inserting ``(e)''; by striking ``where'' and inserting ``in a case 
in which''; by striking ``Zone D'' and inserting ``Zone C''; and by 
striking ``subsection (e)'' and inserting ``subsection (d)''.
Option Three
    Section Sec. 5B1.1(a)(2) is amended by inserting ``, or in criminal 
history Category I of Zone C,'' after ``Zone B''.
    The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is 
amended in subdivision (a) of Note 1 by striking ``Where'' and 
inserting ``In a case in which''; and by striking ``(i.e., the minimum 
term of imprisonment specified in the applicable guideline range is 
zero months)''.
    The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is 
amended in subdivision (b) of Note 1 by striking ``Where'' and 
inserting ``In a case in which''; by inserting ``, or in criminal 
history Category I of Zone C,'' after ``Zone B''; and by striking 
``(i.e., the minimum term of imprisonment specified in the applicable 
guideline range is at least one but not more than six months)''; and by 
striking ``where'' and inserting ``in a case in which''.
    The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is 
amended in Note 1 by redesignating paragraphs (a) and (b) as paragraphs 
(A) and (B), respectively.
    The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``Where'' and by inserting ``In a case in 
which''; by striking ``Zone C or'' and inserting ``criminal history 
Category II, III, IV, V, or VI of Zone C, or any criminal history 
category of Zone''; and by striking ``(i.e., the minimum term of 
imprisonment specified in the applicable guideline range is eight 
months or more)''.
    Section Sec. 5C1.1(c) is amended by inserting ``, or in criminal 
history Category I of Zone C,'' after ``Zone B''; and in subdivision 
(c)(1) by striking ``or''.
    Section Sec. 5C1.1(d) is amended by inserting ``criminal history 
Category II, III, IV, V, or VI of'' after ``is in''.
    The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is 
amended by striking ``where'' each place it appears and inserting ``in 
a case in which''.
    The Commentary to Sec. 5C1.1 is amended in Note 2 by striking 
``Where'' and inserting ``In a case in which''; and by striking 
``(i.e., the minimum term of imprisonment specified in the applicable 
guideline range is zero months)''.
    The Commentary to Sec. 5C1.1 is amended in Note 3 by inserting ``, 
or in criminal history Category I of Zone C,'' after ``Zone B''; and by 
striking ``(i.e., the minimum term of imprisonment specified in the 
applicable guideline

[[Page 2475]]

range is at least one but not more than six months)''.
    The Commentary to Sec. 5C1.1 is amended in Note 4 by inserting 
``criminal history Category II, III, IV, V, or VI of'' after ``is in''; 
and by striking ``(i.e., the minimum term specified in the applicable 
guideline range is eight, nine, or ten months)''.
    The Commentary to Sec. 5C1.1 is amended in Note 8 by striking 
``(i.e., the minimum term of imprisonment specified in the applicable 
guideline range is twelve months or more)''.

4. Discharged Term of Imprisonment

    Issue for Comment: The Commission requests comment regarding 
whether subsections (b) and (c) of Sec. 5G1.3 (Imposition of a Sentence 
on a Defendant Subject to an Undischarged Term of Imprisonment) should 
be expanded to apply to discharged terms of imprisonment. If so, how 
should this be accomplished? Alternatively, should the Commission 
provide a structured downward departure in cases in which the 
discharged term of imprisonment resulted from offense conduct that has 
been taken into account in the determination of the offense level for 
the instant offense of conviction? If so, how should such a departure 
be structured? For example, should the extent of the departure be 
linked to the length of the discharged term of imprisonment?
    The Commission further requests comment regarding any other issue 
that should be resolved pertaining to the overall application of 
Sec. 5G1.3
    5. Acceptance of Responsibility
    Synopsis of Amendment: This proposed amendment corrects a technical 
error made in the Commission's notice of proposed amendments to 
sentencing guidelines, policy statements, and commentary in the Federal 
Register, November 27, 2001(66 FR. 59330-59340). Specifically, proposed 
amendment 5, regarding Sec. 3E1.1 (Acceptance of Responsibility), 
inadvertently deletes ``timely'' from subsection (b)(2) of Sec. 3E1.1. 
The following proposed amendment corrects that inadvertent deletion.
    Section 3E1.1(b) is amended by striking ``has assisted 
authorities'' and all that follows through ``notifying'' and inserting 
``timely notified''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``Appropriate Considerations in 
Determining Applicability of Acceptance of Responsibility.''--before 
``In determining''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``Convictions by Trial.--'' before 
``This adjustment''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended in Note 3 by inserting ``Application of Subsection (a).--
''before ``Entry of a plea''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended by striking the text of Note 4 in its entirety and inserting 
the following:
    ``Inapplicability of Adjustment.--A defendant who (A) receives an 
enhancement under Sec. 3C1.1 (Obstructing or Impeding the 
Administration of Justice); or (B) commits another offense while 
pending trial or sentencing on the instant offense, ordinarily is not 
entitled to a reduction under this guideline. [There may, however, be 
extraordinary cases in which an adjustment under this guideline is 
warranted even though the defendant received an enhancement under 
Sec. 3C1.1, or committed another such offense, or both.]''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended in Note 5 by inserting ``Deference on Review.--'' before ``The 
sentencing judge''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended by striking the first sentence of Note 6 and inserting 
``Application of Subsection (b).--''; and by striking ``has assisted 
authorities in the investigation or prosecution of his own misconduct 
by taking one or both of the steps set forth in subsection (b)'' and 
inserting ``timely notified authorities of the defendant's intention to 
enter a guilty plea''.
    The Commentary to Sec. 3E1.1 captioned ``Background'' is amended in 
the second sentence of the first paragraph by striking ``by taking, in 
a timely fashion, one or more of the actions listed above (or some 
equivalent action)''; and in the second paragraph by striking ``has 
assisted authorities in the investigation or prosecution of his own 
misconduct by taking one or more of the steps specified in subsection 
(b)'' and inserting ``timely notified authorities of the defendant's 
intention to enter a guilty plea''.

[FR Doc. 02-1264 Filed 1-16-02; 8:45 am]
BILLING CODE 2211-01-P