[Federal Register Volume 68, Number 203 (Tuesday, October 21, 2003)]
[Notices]
[Pages 60154-60176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26404]



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Part II





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

  Federal Register / Vol. 68, No. 203 / Tuesday, October 21, 2003 / 
Notices  

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of (1) amendments to the sentencing guidelines made 
pursuant to the directive in section 401(m) of the PROTECT Act, Public 
Law 108-21; and (2) conforming amendments to the congressional 
amendments to the guidelines made directly by the PROTECT Act and 
effective on May 30, 2003.

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SUMMARY: Section 401(m) of the PROTECT Act requires the Commission, 
``[n]ot later than 180 days after the enactment of [the] Act'' (i.e., 
October 27, 2003) to ``review the grounds of downward departure that 
are authorized by the sentencing guidelines, policy statements, and 
official commentary.'' Section 401(m) also requires the Commission to 
promulgate, pursuant to section 994 of title 28, United States Code, 
amendments that ``ensure that the incidence of downward departures are 
substantially reduced,'' that authorize a downward departure of ``not 
more than four levels if the Government files a motion for such 
departure pursuant to an early disposition program,'' and that make any 
conforming changes necessitated by the Act. Pursuant to section 401(m) 
of the Act and section 994 of title 28, United States Code, the 
Commission has promulgated amendments to the following: (1)(A) Chapter 
Five, Part K, including Sec. Sec.  5K2.0 (Grounds for Departure), 
5K2.10 (Victim's Conduct), 5K2.12 (Coercion and Duress), 5K1.13 
(Diminished Capacity), and 5K2.20 (Aberrant Behavior), and the 
promulgation of a new policy statement, Sec.  5K3.1 (Early Disposition 
Programs); (B) Chapter Five, Part H, including Sec. Sec.  5H1.4 
(Physical Condition, Including Drug or Alcohol Dependence or Abuse; 
Gambling Addiction), 5H1.6 (Family Ties and Responsibilities), 5H1.7 
(Role in the Offense), and 5H1.8 (Criminal History); (C) Sec. Sec.  
4A1.1 (Criminal History Category) and 4A1.3 (Departures Based on 
Inadequacy of Criminal History Category); (D) Sec.  5C1.2 (Limitation 
on Applicability of Statutory Minimum Sentences in Certain Cases); (E) 
Chapter One, Part A, including promulgation of a new guideline, Sec.  
1A1.1 (Authority); (F) Sec.  6B1.2 (Standards for Acceptance of Plea 
Agreements); and (G) Sec.  1B1.1 (Application Instructions); and (2) 
Sec.  2A4.1 (Kidnapping, Abduction, Unlawful Restraint) in order to 
make conforming changes necessitated by the congressional amendments to 
the guidelines made directly by the PROTECT Act and effective on May 
30, 2003.
    Section 994(x) of title 28, United States Code, requires the 
Commission to comply with the notice and comment procedures set forth 
in 5 U.S.C. 553. Section 553 provides, however, a ``good cause'' 
exception to the general notice and comment requirements, including the 
requirement that notice of final agency action be published not later 
than 30 days before the effective date of that action, if the ``agency 
for good cause finds (and incorporates the finding and a brief 
statement of reasons therefor in the rules issued) that notice and 
public procedure thereon are impracticable, unnecessary, or contrary to 
the public interest.'' 5 U.S.C. 553(b), (d)(3). The 180-day deadline 
noted in the previous paragraph with respect to promulgation of these 
amendments, the extensive nature of these amendments, and limited 
Commission resources made it impracticable to publish the amendments in 
the Federal Register within the otherwise applicable 30-day period. The 
Commission therefore had good cause not to publish these amendments 
within that time period.

DATES: The effective date for the amendments set forth in this notice 
is October 27, 2003.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, 202-502-4590. The amendments set forth in this notice also may 
be accessed through the Commission's Web site at http://www.ussc.gov. 
The Guidelines Manual effective November 1, 2003, will incorporate the 
amendments set forth in this notice and may be accessed through the 
Commission's Web site as well. Please note that due to the timing of 
the promulgation of these amendments and the time required for 
publication of the Guidelines Manual, the Commission will be unable to 
distribute copies of the Guidelines Manual before November 1, 2003. 
They will be distributed as soon as practicable thereafter.

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 generally 
submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) 
not later than the first day of May each year. Absent action of 
Congress to the contrary, submitted amendments become effective by 
operation of law on the date specified by the Commission (generally 
November 1 of the year in which the amendments are submitted to 
Congress).

    Authority: 28 U.S.C. 994(a), (o), and (p); USSC Rule of Practice 
and Procedure 4.1.

Diana E. Murphy,
Chair.
    1. Amendment: Section 5K2.0 is amended to read as follows:
`` 5K2.0. Grounds for Departure (Policy Statement)
    (a) Upward Departures in General and Downward Departures in 
Criminal Cases Other Than Child Crimes and Sexual Offenses.--
    (1) In General.--The sentencing court may depart from the 
applicable guideline range if--
    (A) in the case of offenses other than child crimes and sexual 
offenses, the court finds, pursuant to 18 U.S.C. 3553(b)(1), that there 
exists an aggravating or mitigating circumstance; or
    (B) in the case of child crimes and sexual offenses, the court 
finds, pursuant to 18 U.S.C. 3553(b)(2)(A)(i), that there exists an 
aggravating circumstance, of a kind, or to a degree, not adequately 
taken into consideration by the Sentencing Commission in formulating 
the guidelines that, in order to advance the objectives set forth in 18 
U.S.C. 3553(a)(2), should result in a sentence different from that 
described.
    (2) Departures Based on Circumstances of a Kind not Adequately 
Taken into Consideration.--
    (A) Identified Circumstances.--This subpart (Chapter Five, Part K, 
Subpart 2 (Other Grounds for Departure)) identifies some of the 
circumstances that the Commission may have not adequately taken into 
consideration in determining the applicable guideline range (e.g., as a 
specific offense characteristic or other adjustment). If any such 
circumstance is present in the case and has not adequately been taken 
into consideration in determining the applicable guideline range, a 
departure consistent with 18 U.S.C. 3553(b) and the provisions of this 
subpart may be warranted.
    (B) Unidentified Circumstances.--A departure may be warranted in 
the exceptional case in which there is present a circumstance that the 
Commission has not identified in the guidelines but that nevertheless 
is relevant to determining the appropriate sentence.

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    (3) Departures Based on Circumstances Present to a Degree not 
Adequately Taken into Consideration.--A departure may be warranted in 
an exceptional case, even though the circumstance that forms the basis 
for the departure is taken into consideration in determining the 
guideline range, if the court determines that such circumstance is 
present in the offense to a degree substantially in excess of, or 
substantially below, that which ordinarily is involved in that kind of 
offense.
    (4) Departures Based on not Ordinarily Relevant Offender 
Characteristics and Other Circumstances.--An offender characteristic or 
other circumstance identified in Chapter Five, Part H (Offender 
Characteristics) or elsewhere in the guidelines as not ordinarily 
relevant in determining whether a departure is warranted may be 
relevant to this determination only if such offender characteristic or 
other circumstance is present to an exceptional degree.
    (b) Downward Departures in Child Crimes and Sexual Offenses.--Under 
18 U.S.C. 3553(b)(2)(A)(ii), the sentencing court may impose a sentence 
below the range established by the applicable guidelines only if the 
court finds that there exists a mitigating circumstance of a kind, or 
to a degree, that--
    (1) Has been affirmatively and specifically identified as a 
permissible ground of downward departure in the sentencing guidelines 
or policy statements issued under section 994(a) of title 28, United 
States Code, taking account of any amendments to such sentencing 
guidelines or policy statements by act of Congress;
    (2) Has not adequately been taken into consideration by the 
Sentencing Commission in formulating the guidelines; and
    (3) Should result in a sentence different from that described.
    The grounds enumerated in this Part K of Chapter Five are the sole 
grounds that have been affirmatively and specifically identified as a 
permissible ground of downward departure in these sentencing guidelines 
and policy statements. Thus, notwithstanding any other reference to 
authority to depart downward elsewhere in this Sentencing Manual, a 
ground of downward departure has not been affirmatively and 
specifically identified as a permissible ground of downward departure 
within the meaning of section 3553(b)(2) unless it is expressly 
enumerated in this Part K as a ground upon which a downward departure 
may be granted.
    (c) Limitation on Departures Based on Multiple Circumstances.--The 
court may depart from the applicable guideline range based on a 
combination of two or more offender characteristics or other 
circumstances, none of which independently is sufficient to provide a 
basis for departure, only if--
    (1) Such offender characteristics or other circumstances, taken 
together, make the case an exceptional one; and
    (2) Each such offender characteristic or other circumstance is--
    (A) present to a substantial degree; and
    (B) identified in the guidelines as a permissible ground for 
departure, even if such offender characteristic or other circumstance 
is not ordinarily relevant to a determination of whether a departure is 
warranted.
    (d) Prohibited Departures.--Notwithstanding subsections (a) and (b) 
of this policy statement, or any other provision in the guidelines, the 
court may not depart from the applicable guideline range based on any 
of the following circumstances:
    (1) Any circumstance specifically prohibited as a ground for 
departure in Sec. Sec.  5H1.10 (Race, Sex, National Origin, Creed, 
Religion, and Socio-Economic Status), 5H1.12 (Lack of Guidance as a 
Youth and Similar Circumstances), the third and last sentences of 5H1.4 
(Physical Condition, Including Drug or Alcohol Dependence or Abuse; 
Gambling Addiction), the last sentence of 5K2.12 (Coercion and Duress), 
and 5K2.19 (Post-Sentencing Rehabilitative Efforts).
    (2) The defendant's acceptance of responsibility for the offense, 
which may be taken into account only under 3E1.1 (Acceptance of 
Responsibility).
    (3) The defendant's aggravating or mitigating role in the offense, 
which may be taken into account only under Sec.  3B1.1 (Aggravating 
Role) or Sec.  3B1.2 (Mitigating Role), respectively.
    (4) The defendant's decision, in and of itself, to plead guilty to 
the offense or to enter a plea agreement with respect to the offense 
(i.e., a departure may not be based merely on the fact that the 
defendant decided to plead guilty or to enter into a plea agreement, 
but a departure may be based on justifiable, non-prohibited reasons as 
part of a sentence that is recommended, or agreed to, in the plea 
agreement and accepted by the court. See Sec.  6B1.2 (Standards for 
Acceptance of Plea Agreement).
    (5) The defendant's fulfillment of restitution obligations only to 
the extent required by law including the guidelines (i.e., a departure 
may not be based on unexceptional efforts to remedy the harm caused by 
the offense).
    (6) Any other circumstance specifically prohibited as a ground for 
departure in the guidelines.
    (e) Requirement of Specific Written Reasons for Departure.--If the 
court departs from the applicable guideline range, it shall state, 
pursuant to 18 U.S.C. Sec.  3553(c), its specific reasons for departure 
in open court at the time of sentencing and, with limited exception in 
the case of statements received in camera, shall state those reasons 
with specificity in the written judgment and commitment order.

Commentary

    Application Notes:
    1. Definitions.--For purposes of this policy statement:
    `Circumstance' includes, as appropriate, an offender characteristic 
or any other offense factor.
    `Depart', `departure', `downward departure', and `upward departure' 
have the meaning given those terms in Application Note 1 of the 
Commentary to Sec.  1B1.1 (Application Instructions).
    2. Scope of this Policy Statement.--
    (A) Departures Covered by this Policy Statement.--This policy 
statement covers departures from the applicable guideline range based 
on offense characteristics or offender characteristics of a kind, or to 
a degree, not adequately taken into consideration in determining that 
range. See 18 U.S.C. Sec.  3553(b).
    Subsection (a) of this policy statement applies to upward 
departures in all cases covered by the guidelines and to downward 
departures in all such cases except for downward departures in child 
crimes and sexual offenses.
    Subsection (b) of this policy statement applies only to downward 
departures in child crimes and sexual offenses.
    (B) Departures Covered by Other Guidelines.--This policy statement 
does not cover the following departures, which are addressed elsewhere 
in the guidelines: (i) Departures based on the defendant's criminal 
history (see Chapter Four (Criminal History and Criminal Livelihood), 
particularly Sec.  4A1.3 (Departures Based on Inadequacy of Criminal 
History Category)); (ii) departures based on the defendant's 
substantial assistance to the authorities (see Sec.  5K1.1 (Substantial 
Assistance to Authorities)); and (iii) departures based on early 
disposition programs (see Sec.  5K3.1 (Early Disposition Programs)).
    3. Kinds and Expected Frequency of Departures under Subsection 
(a).--As set forth in subsection (a), there generally are two kinds of 
departures

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from the guidelines based on offense characteristics and/or offender 
characteristics: (A) departures based on circumstances of a kind not 
adequately taken into consideration in the guidelines; and (B) 
departures based on circumstances that are present to a degree not 
adequately taken into consideration in the guidelines.
    (A) Departures Based on Circumstances of a Kind Not Adequately 
Taken into Account in Guidelines.--Subsection (a)(2) authorizes the 
court to depart if there exists an aggravating or a mitigating 
circumstance in a case under 18 U.S.C. 3553(b)(1), or an aggravating 
circumstance in a case under 18 U.S.C. 3553(b)(2)(A)(i), of a kind not 
adequately taken into consideration in the guidelines.
    (i) Identified Circumstances.--This subpart (Chapter Five, Part K, 
Subpart 2) identifies several circumstances that the Commission may 
have not adequately taken into consideration in setting the offense 
level for certain cases. Offense guidelines in Chapter Two (Offense 
Conduct) and adjustments in Chapter Three (Adjustments) sometimes 
identify circumstances the Commission may have not adequately taken 
into consideration in setting the offense level for offenses covered by 
those guidelines. If the offense guideline in Chapter Two or an 
adjustment in Chapter Three does not adequately take that circumstance 
into consideration in setting the offense level for the offense, and 
only to the extent not adequately taken into consideration, a departure 
based on that circumstance may be warranted.
    (ii) Unidentified Circumstances.--A case may involve circumstances, 
in addition to those identified by the guidelines, that have not 
adequately been taken into consideration by the Commission, and the 
presence of any such circumstance may warrant departure from the 
guidelines in that case. However, inasmuch as the Commission has 
continued to monitor and refine the guidelines since their inception to 
take into consideration relevant circumstances in sentencing, it is 
expected that departures based on such unidentified circumstances will 
occur rarely and only in exceptional cases.
    (B) Departures Based on Circumstances Present to a Degree Not 
Adequately Taken into Consideration in Guidelines.--
    (i) In General.--Subsection (a)(3) authorizes the court to depart 
if there exists an aggravating or a mitigating circumstance in a case 
under 18 U.S.C. 3553(b)(1), or an aggravating circumstance in a case 
under 18 U.S.C. 3553(b)(2)(A)(i), to a degree not adequately taken into 
consideration in the guidelines. However, inasmuch as the Commission 
has continued to monitor and refine the guidelines since their 
inception to determine the most appropriate weight to be accorded the 
mitigating and aggravating circumstances specified in the guidelines, 
it is expected that departures based on the weight accorded to any such 
circumstance will occur rarely and only in exceptional cases.
    (ii) Examples.--As set forth in subsection (a)(3), if the 
applicable offense guideline and adjustments take into consideration a 
circumstance identified in this subpart, departure is warranted only if 
the circumstance is present to a degree substantially in excess of that 
which ordinarily is involved in the offense. Accordingly, a departure 
pursuant to Sec.  5K2.7 for the disruption of a governmental function 
would have to be substantial to warrant departure from the guidelines 
when the applicable offense guideline is bribery or obstruction of 
justice. When the guideline covering the mailing of injurious articles 
is applicable, however, and the offense caused disruption of a 
governmental function, departure from the applicable guideline range 
more readily would be appropriate. Similarly, physical injury would not 
warrant departure from the guidelines when the robbery offense 
guideline is applicable because the robbery guideline includes a 
specific adjustment based on the extent of any injury. However, because 
the robbery guideline does not deal with injury to more than one 
victim, departure may be warranted if several persons were injured.
    (C) Departures Based on Circumstances Identified as Not Ordinarily 
Relevant.--Because certain circumstances are specified in the 
guidelines as not ordinarily relevant to sentencing (see, e.g., Chapter 
Five, Part H (Specific Offender Characteristics)), a departure based on 
any one of such circumstances should occur only in exceptional cases, 
and only if the circumstance is present in the case to an exceptional 
degree. If two or more of such circumstances each is present in the 
case to a substantial degree, however, and taken together make the case 
an exceptional one, the court may consider whether a departure would be 
warranted pursuant to subsection (c). Departures based on a combination 
of not ordinarily relevant circumstances that are present to a 
substantial degree should occur extremely rarely and only in 
exceptional cases.
    In addition, as required by subsection (e), each circumstance 
forming the basis for a departure described in this subdivision shall 
be stated with specificity in the written judgment and commitment 
order.
    4. Downward Departures in Child Crimes and Sexual Offenses.--
    (A) Definition.--For purposes of this policy statement, the term 
child crimes and sexual offenses' means offenses under any of the 
following: 18 U.S.C. 1201 (involving a minor victim), 18 U.S.C. 1591, 
or chapter 71, 109A, 110, or 117 of title 18, United States Code.
    (B) Standard for Departure.--
    (i) Requirement of Affirmative and Specific Identification of 
Departure Ground.--The standard for a downward departure in child 
crimes and sexual offenses differs from the standard for other 
departures under this policy statement in that it includes a 
requirement, set forth in 18 U.S.C. 3553(b)(2)(A)(ii)(I) and subsection 
(b)(1) of this guideline, that any mitigating circumstance that forms 
the basis for such a downward departure be affirmatively and 
specifically identified as a ground for downward departure in this part 
(i.e., Chapter Five, Part K).
    (ii) Application of Subsection (b)(2).--The commentary in 
Application Note 3 of this policy statement, except for the commentary 
in Application Note 3(A)(ii) relating to unidentified circumstances, 
shall apply to the court's determination of whether a case meets the 
requirement, set forth in subsection 18 U.S.C. 3553(b)(2)(A)(ii)(II) 
and subsection (b)(2) of this policy statement, that the mitigating 
circumstance forming the basis for a downward departure in child crimes 
and sexual offenses be of kind, or to a degree, not adequately taken 
into consideration by the Commission.
    5. Departures Based on Plea Agreements.--Subsection (d)(4) 
prohibits a downward departure based only on the defendant's decision, 
in and of itself, to plead guilty to the offense or to enter a plea 
agreement with respect to the offense. Even though a departure may not 
be based merely on the fact that the defendant agreed to plead guilty 
or enter a plea agreement, a departure may be based on justifiable, 
non-prohibited reasons for departure as part of a sentence that is 
recommended, or agreed to, in the plea agreement and accepted by the 
court. See Sec.  6B1.2 (Standards for Acceptance of Plea Agreements). 
In cases in which the court departs based on such reasons as set forth 
in the plea agreement, the court must state the reasons for departure 
with specificity in the written judgment and commitment order, as 
required by subsection (e).

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    Background: This policy statement sets forth the standards for 
departing from the applicable guideline range based on offense and 
offender characteristics of a kind, or to a degree, not adequately 
considered by the Commission. Circumstances the Commission has 
determined are not ordinarily relevant to determining whether a 
departure is warranted or are prohibited as bases for departure are 
addressed in Chapter Five, Part H (Offender Characteristics) and in 
this policy statement. Other departures, such as those based on the 
defendant's criminal history, the defendant's substantial assistance to 
authorities, and early disposition programs, are addressed elsewhere in 
the guidelines.
    As acknowledged by Congress in the Sentencing Reform Act and by the 
Commission when the first set of guidelines was promulgated, `it is 
difficult to prescribe a single set of guidelines that encompasses the 
vast range of human conduct potentially relevant to a sentencing 
decision. (See Historical Note to Sec.  1A1.1 (Authority)). Departures, 
therefore, perform an integral function in the sentencing guideline 
system. Departures permit courts to impose an appropriate sentence in 
the exceptional case in which mechanical application of the guidelines 
would fail to achieve the statutory purposes and goals of sentencing. 
Departures also help maintain `sufficient flexibility to permit 
individualized sentences when warranted by mitigating or aggravating 
factors not taken into account in the establishment of general 
sentencing practices. 28 U.S.C. 991(b)(1)(B). By monitoring when courts 
depart from the guidelines and by analyzing their stated reasons for 
doing so, along with appellate cases reviewing these departures, the 
Commission can further refine the guidelines to specify more precisely 
when departures should and should not be permitted.
    As reaffirmed in the Prosecutorial Remedies and Other Tools to end 
the Exploitation of Children Act of 2003 (the PROTECT Act, Public Law 
108-21), circumstances warranting departure should be rare. Departures 
were never intended to permit sentencing courts to substitute their 
policy judgments for those of Congress and the Sentencing Commission. 
Departure in such circumstances would produce unwarranted sentencing 
disparity, which the Sentencing Reform Act was designed to avoid.
    In order for appellate courts to fulfill their statutory duties 
under 18 U.S.C. 3742 and for the Commission to fulfill its ongoing 
responsibility to refine the guidelines in light of information it 
receives on departures, it is essential that sentencing courts state 
with specificity the reasons for departure, as required by the PROTECT 
Act.
    This policy statement, including its commentary, was substantially 
revised, effective October 27, 2003, in response to directives 
contained in the PROTECT Act, particularly the directive in section 
401(m) of that Act to--
    `(1) Review the grounds of downward departure that are authorized 
by the sentencing guidelines, policy statements, and official 
commentary of the Sentencing Commission; and
    (2) promulgate, pursuant to section 994 of title 28, United States 
Code--
    (A) appropriate amendments to the sentencing guidelines, policy 
statements, and official commentary to ensure that the incidence of 
downward departures is substantially reduced;
    (B) a policy statement authorizing a departure pursuant to an early 
disposition program; and
    (C) any other conforming amendments to the sentencing guidelines, 
policy statements, and official commentary of the Sentencing Commission 
necessitated by the Act, including a revision of * * * section 5K2.0'.
    The substantial revision of this policy statement in response to 
the PROTECT Act was intended to refine the standards applicable to 
departures while giving due regard for concepts, such as the 
`heartland', that have evolved in departure jurisprudence over time.
    Section 401(b)(1) of the PROTECT Act directly amended this policy 
statement to add subsection (b), effective April 30, 2003.''.

Part II: Departures Under Chapter Five, Part H

    The Introductory Commentary of Chapter 5, Part H, is amended to 
read as follows:

Introductory Commentary

    The following policy statements address the relevance of certain 
offender characteristics to the determination of whether a sentence 
should be outside the applicable guideline range and, in certain cases, 
to the determination of a sentence within the applicable guideline 
range. Under 28 U.S.C. 994(d), the Commission is directed to consider 
whether certain specific offender characteristics `have any relevance 
to the nature, extent, place of service, or other incidents of an 
appropriate sentence' and to take them into account only to the extent 
they are determined to be relevant by the Commission.
    The Commission has determined that certain circumstances are not 
ordinarily relevant to the determination of whether a sentence should 
be outside the applicable guideline range. Unless expressly stated, 
this does not mean that the Commission views such circumstances as 
necessarily inappropriate to the determination of the sentence within 
the applicable guideline range or to the determination of various other 
incidents of an appropriate sentence (e.g., the appropriate conditions 
of probation or supervised release). Furthermore, although these 
circumstances are not ordinarily relevant to the determination of 
whether a sentence should be outside the applicable guideline range, 
they may be relevant to this determination in exceptional cases. They 
also may be relevant if a combination of such circumstances makes the 
case an exceptional one, but only if each such circumstance is 
identified as an affirmative ground for departure and is present in the 
case to a substantial degree. See Sec.  5K2.0 (Grounds for Departure).
    In addition, 28 U.S.C. 994(e) requires the Commission to assure 
that its guidelines and policy statements reflect the general 
inappropriateness of considering the defendant's education, vocational 
skills, employment record, and family ties and responsibilities in 
determining whether a term of imprisonment should be imposed or the 
length of a term of imprisonment.''.
    Section 5H1.4 is amended to read as follows:
    ``Sec.  5H1.4. Physical Condition, Including Drug or Alcohol 
Dependence or Abuse; Gambling Addiction (Policy Statement)
    Physical condition or appearance, including physique, is not 
ordinarily relevant in determining whether a departure may be 
warranted. However, an extraordinary physical impairment may be a 
reason to depart downward; e.g., in the case of a seriously infirm 
defendant, home detention may be as efficient as, and less costly than, 
imprisonment.
    Drug or alcohol dependence or abuse is not a reason for a downward 
departure. Substance abuse is highly correlated to an increased 
propensity to commit crime. Due to this increased risk, it is highly 
recommended that a defendant who is incarcerated also be sentenced to 
supervised release with a requirement that the defendant participate in 
an appropriate substance abuse program (see Sec.  5D1.3(d)(4)). If 
participation in a substance abuse program is required, the length of 
supervised release should take into account the length of time 
necessary for

[[Page 60158]]

the supervisory body to judge the success of the program.
    Similarly, where a defendant who is a substance abuser is sentenced 
to probation, it is strongly recommended that the conditions of 
probation contain a requirement that the defendant participate in an 
appropriate substance abuse program (see Sec.  5B1.3(d)(4)).
    Addiction to gambling is not a reason for a downward departure.''.
    Section 5H1.6 is amended to read as follows:
    ``5H1.6. Family Ties and Responsibilities (Policy Statement)
    Family ties and responsibilities are not ordinarily relevant in 
determining whether a departure may be warranted.
    Family responsibilities that are complied with may be relevant to 
the determination of the amount of restitution or fine.

Commentary

    Application Note:
    1. Circumstances to Consider.--
    (A) In General.--In determining whether a departure is warranted 
under this policy statement, the court shall consider the following 
non-exhaustive list of circumstances:
    (i) The seriousness of the offense.
    (ii) The involvement in the offense, if any, of members of the 
defendant's family.
    (iii) The danger, if any, to members of the defendant's family as a 
result of the offense.
    (B) Departures Based on Loss of Caretaking or Financial Support.--A 
departure under this policy statement based on the loss of caretaking 
or financial support of the defendant's family requires, in addition to 
the court's consideration of the non-exhaustive list of circumstances 
in subdivision (A), the presence of the following circumstances:
    (i) The defendant's service of a sentence within the applicable 
guideline range will cause a substantial, direct, and specific loss of 
essential caretaking, or essential financial support, to the 
defendant's family.
    (ii) The loss of caretaking or financial support substantially 
exceeds the harm ordinarily incident to incarceration for a similarly 
situated defendant. For example, the fact that the defendant's family 
might incur some degree of financial hardship or suffer to some extent 
from the absence of a parent through incarceration is not in itself 
sufficient as a basis for departure because such hardship or suffering 
is of a sort ordinarily incident to incarceration.
    (iii) The loss of caretaking or financial support is one for which 
no effective remedial or ameliorative programs reasonably are 
available, making the defendant's caretaking or financial support 
irreplaceable to the defendant's family.
    (iv) The departure effectively will address the loss of caretaking 
or financial support.''.
    Section 5H1.7 is amended to read as follows:
    ``Sec.  5H1.7. Role in the Offense (Policy Statement)
    A defendant's role in the offense is relevant in determining the 
applicable guideline range (see Chapter Three, Part B (Role in the 
Offense)) but is not a basis for departing from that range (see 
subsection (d) of Sec.  5K2.0 (Grounds for Departures)).''.
    Section 5H1.8 is amended to read as follows:
    ``Sec.  5H1.8. Criminal History (Policy Statement)
    A defendant's criminal history is relevant in determining the 
applicable criminal history category. See Chapter Four (Criminal 
History and Criminal Livelihood). For grounds of departure based on the 
defendant's criminal history, see Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category).''.

Part III. Other Departures Under Chapter Five, Part K

    Section Sec.  5K2.10 is amended to read as follows:
    ``Sec.  5K2.10. Victim's Conduct (Policy Statement)
    If the victim's wrongful conduct contributed significantly to 
provoking the offense behavior, the court may reduce the sentence below 
the guideline range to reflect the nature and circumstances of the 
offense. In deciding whether a sentence reduction is warranted, and the 
extent of such reduction, the court should consider the following:
    (1) The size and strength of the victim, or other relevant physical 
characteristics, in comparison with those of the defendant.
    (2) The persistence of the victim's conduct and any efforts by the 
defendant to prevent confrontation.
    (3) The danger reasonably perceived by the defendant, including the 
victim's reputation for violence.
    (4) The danger actually presented to the defendant by the victim.
    (5) Any other relevant conduct by the victim that substantially 
contributed to the danger presented.
    (6) The proportionality and reasonableness of the defendant's 
response to the victim's provocation.
    Victim misconduct ordinarily would not be sufficient to warrant 
application of this provision in the context of offenses under Chapter 
Two, Part A, Subpart 3 (Criminal Sexual Abuse). In addition, this 
provision usually would not be relevant in the context of non-violent 
offenses. There may, however, be unusual circumstances in which 
substantial victim misconduct would warrant a reduced penalty in the 
case of a non-violent offense. For example, an extended course of 
provocation and harassment might lead a defendant to steal or destroy 
property in retaliation.''.
    Section 5K2.12 is amended to read as follows:
    ``Sec.  5K2.12. Coercion and Duress (Policy Statement)
    If the defendant committed the offense because of serious coercion, 
blackmail or duress, under circumstances not amounting to a complete 
defense, the court may decrease the sentence below the applicable 
guideline range. The extent of the decrease ordinarily should depend on 
the reasonableness of the defendant's actions, on the proportionality 
of the defendant's actions to the seriousness of coercion, blackmail, 
or duress involved, and on the extent to which the conduct would have 
been less harmful under the circumstances as the defendant believed 
them to be. Ordinarily coercion will be sufficiently serious to warrant 
departure only when it involves a threat of physical injury, 
substantial damage to property or similar injury resulting from the 
unlawful action of a third party or from a natural emergency. 
Notwithstanding this policy statement, personal financial difficulties 
and economic pressures upon a trade or business do not warrant a 
downward departure.''.
    Section 5K2.13 is amended to read as follows:
    ``Sec.  5K2.13. Diminished Capacity (Policy Statement)
    A sentence below the applicable guideline range may be warranted if 
(1) the defendant committed the offense while suffering from a 
significantly reduced mental capacity; and (2) the significantly 
reduced mental capacity contributed substantially to the commission of 
the offense. Similarly, if a departure is warranted under this policy 
statement, the extent of the departure should reflect the extent to 
which the reduced mental capacity contributed to the commission of the 
offense.
    However, the court may not depart below the applicable guideline 
range if (1) the significantly reduced mental capacity was caused by 
the voluntary use of drugs or other intoxicants; (2) the facts and 
circumstances of the

[[Page 60159]]

defendant's offense indicate a need to protect the public because the 
offense involved actual violence or a serious threat of violence; (3) 
the defendant's criminal history indicates a need to incarcerate the 
defendant to protect the public; or (4) the defendant has been 
convicted of an offense under chapter 71, 109A, 110, or 117, of title 
18, United States Code.

Commentary

    Application Note:
    1. For purposes of this policy statement--
    Significantly reduced mental capacity' means the defendant, 
although convicted, has a significantly impaired ability to (A) 
understand the wrongfulness of the behavior comprising the offense or 
to exercise the power of reason; or (B) control behavior that the 
defendant knows is wrongful.
    Background: Section 401(b)(5) of Public Law 108-21 directly amended 
this policy statement to add subdivision (4), effective April 30, 
2003.''.
    Section 5K2.20 is amended to read as follows:
    ``Sec.  5K2.20. Aberrant Behavior (Policy Statement)
    (a) In General.--Except where a defendant is convicted of an 
offense involving a minor victim under section 1201, an offense under 
section 1591, or an offense under chapter 71, 109A, 110, or 117, of 
title 18, United States Code, a downward departure may be warranted in 
an exceptional case if (1) the defendant's criminal conduct meets the 
requirements of subsection (b); and (2) the departure is not prohibited 
under subsection (c).
    (b) Requirements.--The court may depart downward under this policy 
statement only if the defendant committed a single criminal occurrence 
or single criminal transaction that (1) was committed without 
significant planning; (2) was of limited duration; and (3) represents a 
marked deviation by the defendant from an otherwise law-abiding life.
    (c) Prohibitions Based on the Presence of Certain Circumstances.--
The court may not depart downward pursuant to this policy statement if 
any of the following circumstances are present:
    (1) The offense involved serious bodily injury or death.
    (2) The defendant discharged a firearm or otherwise used a firearm 
or a dangerous weapon.
    (3) The instant offense of conviction is a serious drug trafficking 
offense.
    (4) The defendant has either of the following: (A) more than one 
criminal history point, as determined under Chapter Four (Criminal 
History and Criminal Livelihood) before application of subsection (b) 
of 4A1.3 (Departures Based on Inadequacy of Criminal History Category); 
or (B) a prior federal or state felony conviction, or any other 
significant prior criminal behavior, regardless of whether the 
conviction or significant prior criminal behavior is countable under 
Chapter Four.

Commentary

    Application Notes:
    1. Definitions.--For purposes of this policy statement:
    `Dangerous weapon,' `firearm,' `otherwise used,' and serious bodily 
injury' have the meaning given those terms in the Commentary to Sec.  
1B1.1 (Application Instructions).
    `Serious drug trafficking offense' means any controlled substance 
offense under title 21, United States Code, other than simple 
possession under 21 U.S.C. 844, that provides for a mandatory minimum 
term of imprisonment of five years or greater, regardless of whether 
the defendant meets the criteria of 5C1.2 (Limitation on Applicability 
of Statutory Mandatory Minimum Sentences in Certain Cases).
    2. Repetitious or Significant, Planned Behavior.--Repetitious or 
significant, planned behavior does not meet the requirements of 
subsection (b). For example, a fraud scheme generally would not meet 
such requirements because such a scheme usually involves repetitive 
acts, rather than a single occurrence or single criminal transaction, 
and significant planning.
    3. Other Circumstances to Consider.--In determining whether the 
court should depart under this policy statement, the court may consider 
the defendant's (A) mental and emotional conditions; (B) employment 
record; (C) record of prior good works; (D) motivation for committing 
the offense; and (E) efforts to mitigate the effects of the offense.
    Background: Section 401(b)(3) of Public Law 108-21 directly amended 
subsection (a) of this policy statement, effective April 30, 2003.''.

Part IV: Criminal History

    Section 4A1.3 is amended to read as follows:
    ``Sec.  4A1.3. Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)
    (a) Upward Departures.--
    (1) Standard for Upward Departure.--If reliable information 
indicates that the defendant's criminal history category substantially 
under-represents the seriousness of the defendant's criminal history or 
the likelihood that the defendant will commit other crimes, an upward 
departure may be warranted.
    (2) Types of Information Forming the Basis for Upward Departure.--
The information described in subsection (a) may include information 
concerning the following:
    (A) Prior sentence(s) not used in computing the criminal history 
category (e.g., sentences for foreign and tribal offenses).
    (B) Prior sentence(s) of substantially more than one year imposed 
as a result of independent crimes committed on different occasions.
    (C) Prior similar misconduct established by a civil adjudication or 
by a failure to comply with an administrative order.
    (D) Whether the defendant was pending trial or sentencing on 
another charge at the time of the instant offense.
    (E) Prior similar adult criminal conduct not resulting in a 
criminal conviction.
    (3) Prohibition.--A prior arrest record itself shall not be 
considered for purposes of an upward departure under this policy 
statement.
    (4) Determination of Extent of Upward Departure.--
    (A) In General.--Except as provided in subdivision (B), the court 
shall determine the extent of a departure under this subsection by 
using, as a reference, the criminal history category applicable to 
defendants whose criminal history or likelihood to recidivate most 
closely resembles that of the defendant's.
    (B) Upward Departures from Category VI.--In a case in which the 
court determines that the extent and nature of the defendant's criminal 
history, taken together, are sufficient to warrant an upward departure 
from Criminal History Category VI, the court should structure the 
departure by moving incrementally down the sentencing table to the next 
higher offense level in Criminal History Category VI until it finds a 
guideline range appropriate to the case.
    (b) Downward Departures.--
    (1) Standard for Downward Departure.--If reliable information 
indicates that the defendant's criminal history category substantially 
over-represents the seriousness of the defendant's criminal history or 
the likelihood that the defendant will commit other crimes, a downward 
departure may be warranted.
    (2) Prohibitions.--
    (A) Criminal History Category I.--A departure below the lower limit 
of the applicable guideline range for Criminal History Category I is 
prohibited.

[[Page 60160]]

    (B) Armed Career Criminal and Repeat and Dangerous Sex Offender.--A 
downward departure under this subsection is prohibited for (i) an armed 
career criminal within the meaning of Sec.  4B1.4 (Armed Career 
Criminal); and (ii) a repeat and dangerous sex offender against minors 
within the meaning of Sec.  4B1.5 (Repeat and Dangerous Sex Offender 
Against Minors).
    (3) Limitations.--
    (A) Limitation on Extent of Downward Departure for Career 
Offender.--The extent of a downward departure under this subsection for 
a career offender within the meaning of Sec.  4B1.1 (Career Offender) 
may not exceed one criminal history category.
    (B) Limitation on Applicability of Sec.  5C1.2 in Event of Downward 
Departure to Category I.--A defendant whose criminal history category 
is Category I after receipt of a downward departure under this 
subsection does not meet the criterion of subsection (a)(1) of Sec.  
5C1.2 (Limitation on Applicability of Statutory Maximum Sentences in 
Certain Cases) if, before receipt of the downward departure, the 
defendant had more than one criminal history point under Sec.  4A1.1 
(Criminal History Category).
    (c) Written Specification of Basis for Departure.--In departing 
from the otherwise applicable criminal history category under this 
policy statement, the court shall specify in writing the following:
    (1) In the case of an upward departure, the specific reasons why 
the applicable criminal history category substantially under-represents 
the seriousness of the defendant's criminal history or the likelihood 
that the defendant will commit other crimes.
    (2) In the case of a downward departure, the specific reasons why 
the applicable criminal history category substantially over-represents 
the seriousness of the defendant's criminal history or the likelihood 
that the defendant will commit other crimes.

Commentary

    Application Notes:
    1. Definitions.--For purposes of this policy statement, the terms 
`depart', `departure', `downward departure', and `upward departure' 
have the meaning given those terms in Application Note 1 of the 
Commentary to Sec.  1B1.1 (Application Instructions).
    2. Upward Departures.--
    (A) Examples.--An upward departure from the defendant's criminal 
history category may be warranted based on any of the following 
circumstances:
    (i) A previous foreign sentence for a serious offense.
    (ii) Receipt of a prior consolidated sentence of ten years for a 
series of serious assaults.
    (iii) A similar instance of large scale fraudulent misconduct 
established by an adjudication in a Securities and Exchange Commission 
enforcement proceeding.
    (iv) Commission of the instant offense while on bail or pretrial 
release for another serious offense.
    (B) Upward Departures from Criminal History Category VI.--In the 
case of an egregious, serious criminal record in which even the 
guideline range for Criminal History Category VI is not adequate to 
reflect the seriousness of the defendant's criminal history, a 
departure above the guideline range for a defendant with Criminal 
History Category VI may be warranted. In determining whether an upward 
departure from Criminal History Category VI is warranted, the court 
should consider that the nature of the prior offenses rather than 
simply their number is often more indicative of the seriousness of the 
defendant's criminal record. For example, a defendant with five prior 
sentences for very large-scale fraud offenses may have 15 criminal 
history points, within the range of points typical for Criminal History 
Category VI, yet have a substantially more serious criminal history 
overall because of the nature of the prior offenses.
    3. Downward Departures.--A downward departure from the defendant's 
criminal history category may be warranted if, for example, the 
defendant had two minor misdemeanor convictions close to ten years 
prior to the instant offense and no other evidence of prior criminal 
behavior in the intervening period. A departure below the lower limit 
of the applicable guideline range for Criminal History Category I is 
prohibited under subsection (b)(2)(B), due to the fact that the lower 
limit of the guideline range for Criminal History Category I is set for 
a first offender with the lowest risk of recidivism.
    Background: This policy statement recognizes that the criminal 
history score is unlikely to take into account all the variations in 
the seriousness of criminal history that may occur. For example, a 
defendant with an extensive record of serious, assaultive conduct who 
had received what might now be considered extremely lenient treatment 
in the past might have the same criminal history category as a 
defendant who had a record of less serious conduct. Yet, the first 
defendant's criminal history clearly may be more serious. This may be 
particularly true in the case of younger defendants (e.g., defendants 
in their early twenties or younger) who are more likely to have 
received repeated lenient treatment, yet who may actually pose a 
greater risk of serious recidivism than older defendants. This policy 
statement authorizes the consideration of a departure from the 
guidelines in the limited circumstances where reliable information 
indicates that the criminal history category does not adequately 
reflect the seriousness of the defendant's criminal history or 
likelihood of recidivism, and provides guidance for the consideration 
of such departures.''.
    The Commentary to Sec.  4A1.1 captioned ``Background'' is amended 
by striking ``permits information about the significance or similarity 
of past conduct underlying prior convictions to be used as a basis for 
imposing a sentence outside the applicable guideline range.'' and 
inserting ``authorizes the court to depart from the otherwise 
applicable criminal history category in certain circumstances.''.
    Section 5C1.2 is amended in subsection (a)(1) by inserting ``before 
application of subsection (b) of 4A1.3 (Departures Based on Inadequacy 
of Criminal History Category)'' after ``guidelines''.
    The Commentary to Sec.  5C1.2 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``before application of subsection (b) 
of Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category)'' after ``Category)''.

Part V: Early Disposition Programs

    Chapter 5, Part K, is amended by adding at the end the following:
    [sbull] 3. Early Disposition Programs
Sec.  5K3.1. Early Disposition Programs (Policy Statement)
    Upon motion of the Government, the court may depart downward not 
more than 4 levels pursuant to an early disposition program authorized 
by the Attorney General of the United States and the United States 
Attorney for the district in which the court resides.

Commentary

    Background: This policy statement implements the directive to the 
Commission in section 401(m)(2)(B) of the Prosecutorial Remedies and 
Other Tools to end the Exploitation of Children Today Act of 2003 (the 
PROTECT Act', Pub. L. 10821).''.

Part VI: Plea Agreements

    Section 6B1.2 is amended in subsection (a) by striking ``[Rule 
11(e)(1)(A)]'' and inserting ``(Rule 11(c)(1)(A))''.

[[Page 60161]]

    Section 6B1.2 is amended in subsection (b) by striking ``[Rule 
11(e)(1)(B)]'' and inserting ``(Rule 11(c)(1)(B))''; and by striking 
subdivision (2) and inserting the following:
    ``(2)(A) the recommended sentence departs from the applicable 
guideline range for justifiable reasons; and (B) those reasons are 
specifically set forth in writing in the statement of reasons or 
judgment and commitment order.''.
    Section 6B1.2 is amended in subsection (c) by striking ``[Rule 
11(e)(1)(C)]'' and inserting ``(Rule 11(c)(1)(C))''; and by striking 
subdivision (2) and inserting the following:
    ``(2)(A) the agreed sentence departs from the applicable guideline 
range for justifiable reasons; and (B) those reasons are specifically 
set forth in writing in the statement of reasons or judgment and 
commitment order.''.
    The Commentary to 6B1.2 is amended in the second paragraph by 
striking ``. See generally Chapter 1, Part A, Subpart 
4(b)(Departures).'' and inserting ``and those reasons are specifically 
set forth in writing in the statement of reasons or the judgment and 
commitment order. As set forth in subsection (d) of 5K2.0 (Grounds for 
Departure), however, the court may not depart below the applicable 
guideline range merely because of the defendant's decision to plead 
guilty to the offense or to enter a plea agreement with respect to the 
offense.''.
    The heading of Chapter One is amended to read as follow:

Chapter One--Authority and General Application Principles''.

    Chapter One, Part A, is amended to read as follows:

Part A--Authority

    1A1.1. Authority
    The guidelines, policy statements, and commentary set forth in this 
Guidelines Manual, including amendments thereto, are promulgated by the 
United States Sentencing Commission pursuant to: (1) Section 994(a) of 
title 28, United States Code; and (2) with respect to guidelines, 
policy statements, and commentary promulgated or amended pursuant to 
specific congressional directive, pursuant to the authority contained 
in that directive in addition to the authority under section 994(a) of 
title 28, United States Code.

Commentary

    Application Note:
    1. Historical Review of Original Introduction.--Part A of Chapter 
One originally was an introduction to the Guidelines Manual that 
explained a number of policy decisions made by the Commission when it 
promulgated the initial set of guidelines. This introduction was 
amended occasionally between 1987 and 2003. In 2003, as part of the 
Commission's implementation of the Prosecutorial Remedies and Other 
Tools to end the Exploitation of Children Today Act of 2003 (the 
`PROTECT Act', Pub. L. 108-21), the original introduction was 
transferred to the Historical Note at the end of this guideline. The 
Commission encourages the review of this material for context and 
historical purposes.
    Background: The Sentencing Reform Act of 1984 changed the course of 
federal sentencing. Among other things, the Act created the United 
States Sentencing Commission as an independent agency in the Judicial 
Branch, and directed it to develop guidelines and policy statements for 
sentencing courts to use when sentencing offenders convicted of federal 
crimes. Moreover, it empowered the Commission with ongoing 
responsibilities to monitor the guidelines, submit to Congress 
appropriate modifications of the guidelines and recommended changes in 
criminal statutes, and establish education and research programs. The 
mandate rested on Congressional awareness that sentencing was a dynamic 
field that requires continuing review by an expert body to revise 
sentencing policies, in light of application experience, as new 
criminal statutes are enacted, and as more is learned about what 
motivates and controls criminal behavior.
    Historical Note: Chapter One, Part A, as in effect on November 1, 
1987, read as follows:

Chapter One--Introduction and General Application Principles

Part A--Introduction

1. Authority
    The United States Sentencing Commission (`Commission') is an 
independent agency in the judicial branch composed of seven voting and 
two non-voting, ex officio members. Its principal purpose is to 
establish sentencing policies and practices for the federal criminal 
justice system that will assure the ends of justice by promulgating 
detailed guidelines prescribing the appropriate sentences for offenders 
convicted of federal crimes.
    The guidelines and policy statements promulgated by the Commission 
are issued pursuant to Section 994(a) of Title 28, United States Code.
2. The Statutory Mission
    The Comprehensive Crime Control Act of 1984 foresees guidelines 
that will further the basic purposes of criminal punishment, i.e., 
deterring crime, incapacitating the offender, providing just 
punishment, and rehabilitating the offender. It delegates to the 
Commission broad authority to review and rationalize the federal 
sentencing process.
    The statute contains many detailed instructions as to how this 
determination should be made, but the most important of them instructs 
the Commission to create categories of offense behavior and offender 
characteristics. An offense behavior category might consist, for 
example, of `bank robbery/committed with a gun/$2500 taken.' An 
offender characteristic category might be `offender with one prior 
conviction who was not sentenced to imprisonment.' The Commission is 
required to prescribe guideline ranges that specify an appropriate 
sentence for each class of convicted persons, to be determined by 
coordinating the offense behavior categories with the offender 
characteristic categories. The statute contemplates the guidelines will 
establish a range of sentences for every coordination of categories. 
Where the guidelines call for imprisonment, the range must be narrow: 
the maximum imprisonment cannot exceed the minimum by more than the 
greater of 25 percent or six months. 28 U.S.C. 994(b)(2).
    The sentencing judge must select a sentence from within the 
guideline range. If, however, a particular case presents atypical 
features, the Act allows the judge to depart from the guidelines and 
sentence outside the range. In that case, the judge must specify 
reasons for departure. 18 U.S.C. 3553(b). If the court sentences within 
the guideline range, an appellate court may review the sentence to see 
if the guideline was correctly applied. If the judge departs from the 
guideline range, an appellate court may review the reasonableness of 
the departure. 18 U.S.C. 3742. The Act requires the offender to serve 
virtually all of any prison sentence imposed, for it abolishes parole 
and substantially restructures good behavior adjustments.
    The law requires the Commission to send its initial guidelines to 
Congress by April 13, 1987, and under the present statute they take 
effect automatically on November 1, 1987. Public Law No. 98-473, 235, 
reprinted at 18 U.S.C. 3551. The Commission may submit guideline

[[Page 60162]]

amendments each year to Congress between the beginning of a regular 
session and May 1. The amendments will take effect automatically 180 
days after submission unless a law is enacted to the contrary. 28 
U.S.C. 994(p).
    The Commission, with the aid of its legal and research staff, 
considerable public testimony, and written commentary, has developed an 
initial set of guidelines which it now transmits to Congress. The 
Commission emphasizes, however, that it views the guideline-writing 
process as evolutionary. It expects, and the governing statute 
anticipates, that continuing research, experience, and analysis will 
result in modifications and revisions to the guidelines by submission 
of amendments to Congress. To this end, the Commission is established 
as a permanent agency to monitor sentencing practices in the federal 
courts throughout the nation.
3. The Basic Approach (Policy Statement)
    To understand these guidelines and the rationale that underlies 
them, one must begin with the three objectives that Congress, in 
enacting the new sentencing law, sought to achieve. Its basic objective 
was to enhance the ability of the criminal justice system to reduce 
crime through an effective, fair sentencing system. To achieve this 
objective, Congress first sought honesty in sentencing. It sought to 
avoid the confusion and implicit deception that arises out of the 
present sentencing system which requires a judge to impose an 
indeterminate sentence that is automatically reduced in most cases by 
`good time' credits. In addition, the parole commission is permitted to 
determine how much of the remainder of any prison sentence an offender 
actually will serve. This usually results in a substantial reduction in 
the effective length of the sentence imposed, with defendants often 
serving only about one-third of the sentence handed down by the court.
    Second, Congress sought uniformity in sentencing by narrowing the 
wide disparity in sentences imposed by different federal courts for 
similar criminal conduct by similar offenders. Third, Congress sought 
proportionality in sentencing through a system that imposes 
appropriately different sentences for criminal conduct of different 
severity.
    Honesty is easy to achieve: The abolition of parole makes the 
sentence imposed by the court the sentence the offender will serve. 
There is a tension, however, between the mandate of uniformity (treat 
similar cases alike) and the mandate of proportionality (treat 
different cases differently) which, like the historical tension between 
law and equity, makes it difficult to achieve both goals 
simultaneously. Perfect uniformity--sentencing every offender to five 
years--destroys proportionality. Having only a few simple categories of 
crimes would make the guidelines uniform and easy to administer, but 
might lump together offenses that are different in important respects. 
For example, a single category for robbery that lumps together armed 
and unarmed robberies, robberies with and without injuries, robberies 
of a few dollars and robberies of millions, is far too broad.
    At the same time, a sentencing system tailored to fit every 
conceivable wrinkle of each case can become unworkable and seriously 
compromise the certainty of punishment and its deterrent effect. A bank 
robber with (or without) a gun, which the robber kept hidden (or 
brandished), might have frightened (or merely warned), injured 
seriously (or less seriously), tied up (or simply pushed) a guard, a 
teller or a customer, at night (or at noon), for a bad (or arguably 
less bad) motive, in an effort to obtain money for other crimes (or for 
other purposes), in the company of a few (or many) other robbers, for 
the first (or fourth) time that day, while sober (or under the 
influence of drugs or alcohol), and so forth.
    The list of potentially relevant features of criminal behavior is 
long; the fact that they can occur in multiple combinations means that 
the list of possible permutations of factors is virtually endless. The 
appropriate relationships among these different factors are exceedingly 
difficult to establish, for they are often context specific. Sentencing 
courts do not treat the occurrence of a simple bruise identically in 
all cases, irrespective of whether that bruise occurred in the context 
of a bank robbery or in the context of a breach of peace. This is so, 
in part, because the risk that such a harm will occur differs depending 
on the underlying offense with which it is connected (and therefore may 
already be counted, to a different degree, in the punishment for the 
underlying offense); and also because, in part, the relationship 
between punishment and multiple harms is not simply additive. The 
relation varies, depending on how much other harm has occurred. (Thus, 
one cannot easily assign points for each kind of harm and simply add 
them up, irrespective of context and total amounts.)
    The larger the number of subcategories, the greater the complexity 
that is created and the less workable the system. Moreover, the 
subcategories themselves, sometimes too broad and sometimes too narrow, 
will apply and interact in unforeseen ways to unforeseen situations, 
thus failing to cure the unfairness of a simple, broad category system. 
Finally, and perhaps most importantly, probation officers and courts, 
in applying a complex system of subcategories, would have to make a 
host of decisions about whether the underlying facts are sufficient to 
bring the case within a particular subcategory. The greater the number 
of decisions required and the greater their complexity, the greater the 
risk that different judges will apply the guidelines differently to 
situations that, in fact, are similar, thereby reintroducing the very 
disparity that the guidelines were designed to eliminate.
    In view of the arguments, it is tempting to retreat to the simple, 
broad-category approach and to grant judges the discretion to select 
the proper point along a broad sentencing range. Obviously, however, 
granting such broad discretion risks correspondingly broad disparity in 
sentencing, for different courts may exercise their discretionary 
powers in different ways. That is to say, such an approach risks a 
return to the wide disparity that Congress established the Commission 
to limit.
    In the end, there is no completely satisfying solution to this 
practical stalemate. The Commission has had to simply balance the 
comparative virtues and vices of broad, simple categorization and 
detailed, complex subcategorization, and within the constraints 
established by that balance, minimize the discretionary powers of the 
sentencing court. Any ultimate system will, to a degree, enjoy the 
benefits and suffer from the drawbacks of each approach.
    A philosophical problem arose when the Commission attempted to 
reconcile the differing perceptions of the purposes of criminal 
punishment. Most observers of the criminal law agree that the ultimate 
aim of the law itself, and of punishment in particular, is the control 
of crime. Beyond this point, however, the consensus seems to break 
down. Some argue that appropriate punishment should be defined 
primarily on the basis of the moral principle of `just deserts.' Under 
this principle, punishment should be scaled to the offender's 
culpability and the resulting harms. Thus, if a defendant is less 
culpable, the defendant deserves less punishment. Others argue that 
punishment should be imposed primarily on the basis of practical `crime

[[Page 60163]]

control' considerations. Defendants sentenced under this scheme should 
receive the punishment that most effectively lessens the likelihood of 
future crime, either by deterring others or incapacitating the 
defendant.
    Adherents of these points of view have urged the Commission to 
choose between them, to accord one primacy over the other. Such a 
choice would be profoundly difficult. The relevant literature is vast, 
the arguments deep, and each point of view has much to be said in its 
favor. A clear-cut Commission decision in favor of one of these 
approaches would diminish the chance that the guidelines would find the 
widespread acceptance they need for effective implementation. As a 
practical matter, in most sentencing decisions both philosophies may 
prove consistent with the same result.
    For now, the Commission has sought to solve both the practical and 
philosophical problems of developing a coherent sentencing system by 
taking an empirical approach that uses data estimating the existing 
sentencing system as a starting point. It has analyzed data drawn from 
10,000 presentence investigations, crimes as distinguished in 
substantive criminal statutes, the United States Parole Commission's 
guidelines and resulting statistics, and data from other relevant 
sources, in order to determine which distinctions are important in 
present practice. After examination, the Commission has accepted, 
modified, or rationalized the more important of these distinctions.
    This empirical approach has helped the Commission resolve its 
practical problem by defining a list of relevant distinctions that, 
although of considerable length, is short enough to create a manageable 
set of guidelines. Existing categories are relatively broad and omit 
many distinctions that some may believe important, yet they include 
most of the major distinctions that statutes and presentence data 
suggest make a significant difference in sentencing decisions. 
Important distinctions that are ignored in existing practice probably 
occur rarely. A sentencing judge may take this unusual case into 
account by departing from the guidelines.
    The Commission's empirical approach has also helped resolve its 
philosophical dilemma. Those who adhere to a just deserts philosophy 
may concede that the lack of moral consensus might make it difficult to 
say exactly what punishment is deserved for a particular crime, 
specified in minute detail. Likewise, those who subscribe to a 
philosophy of crime control may acknowledge that the lack of 
sufficient, readily available data might make it difficult to say 
exactly what punishment will best prevent that crime. Both groups might 
therefore recognize the wisdom of looking to those distinctions that 
judges and legislators have, in fact, made over the course of time. 
These established distinctions are ones that the community believes, or 
has found over time, to be important from either a moral or crime-
control perspective.
    The Commission has not simply copied estimates of existing practice 
as revealed by the data (even though establishing offense values on 
this basis would help eliminate disparity, for the data represent 
averages). Rather, it has departed from the data at different points 
for various important reasons. Congressional statutes, for example, may 
suggest or require departure, as in the case of the new drug law that 
imposes increased and mandatory minimum sentences. In addition, the 
data may reveal inconsistencies in treatment, such as punishing 
economic crime less severely than other apparently equivalent behavior.
    Despite these policy-oriented departures from present practice, the 
guidelines represent an approach that begins with, and builds upon, 
empirical data. The guidelines will not please those who wish the 
Commission to adopt a single philosophical theory and then work 
deductively to establish a simple and perfect set of categorizations 
and distinctions. The guidelines may prove acceptable, however, to 
those who seek more modest, incremental improvements in the status quo, 
who believe the best is often the enemy of the good, and who recognize 
that these initial guidelines are but the first step in an evolutionary 
process. After spending considerable time and resources exploring 
alternative approaches, the Commission has developed these guidelines 
as a practical effort toward the achievement of a more honest, uniform, 
equitable, and therefore effective, sentencing system.
4. The Guidelines' Resolution of Major Issues (Policy Statement)
    The guideline-writing process has required the Commission to 
resolve a host of important policy questions, typically involving 
rather evenly balanced sets of competing considerations. As an aid to 
understanding the guidelines, this introduction will briefly discuss 
several of those issues. Commentary in the guidelines explains others.
    (a) Real Offense vs. Charge Offense Sentencing.
    One of the most important questions for the Commission to decide 
was whether to base sentences upon the actual conduct in which the 
defendant engaged regardless of the charges for which he was indicted 
or convicted (`real offense' sentencing), or upon the conduct that 
constitutes the elements of the offense with which the defendant was 
charged and of which he was convicted (`charge offense' sentencing). A 
bank robber, for example, might have used a gun, frightened bystanders, 
taken $50,000, injured a teller, refused to stop when ordered, and 
raced away damaging property during escape. A pure real offense system 
would sentence on the basis of all identifiable conduct. A pure charge 
offense system would overlook some of the harms that did not constitute 
statutory elements of the offenses of which the defendant was 
convicted.
    The Commission initially sought to develop a real offense system. 
After all, the present sentencing system is, in a sense, a real offense 
system. The sentencing court (and the parole commission) take account 
of the conduct in which the defendant actually engaged, as determined 
in a presentence report, at the sentencing hearing, or before a parole 
commission hearing officer. The Commission's initial efforts in this 
direction, carried out in the spring and early summer of 1986, proved 
unproductive mostly for practical reasons. To make such a system work, 
even to formalize and rationalize the status quo, would have required 
the Commission to decide precisely which harms to take into account, 
how to add them up, and what kinds of procedures the courts should use 
to determine the presence or absence of disputed factual elements. The 
Commission found no practical way to combine and account for the large 
number of diverse harms arising in different circumstances; nor did it 
find a practical way to reconcile the need for a fair adjudicatory 
procedure with the need for a speedy sentencing process, given the 
potential existence of hosts of adjudicated real harm' facts in many 
typical cases. The effort proposed as a solution to these problems 
required the use of, for example, quadratic roots and other 
mathematical operations that the Commission considered too complex to 
be workable, and, in the Commission's view, risked return to wide 
disparity in practice.
    The Commission therefore abandoned the effort to devise a `pure' 
real offense system and instead experimented with a `modified real 
offense system,' which it published for public comment in a September 
1986 preliminary draft.

[[Page 60164]]

    This version also foundered in several major respects on the rock 
of practicality. It was highly complex and its mechanical rules for 
adding harms (e.g., bodily injury added the same punishment 
irrespective of context) threatened to work considerable unfairness. 
Ultimately, the Commission decided that it could not find a practical 
or fair and efficient way to implement either a pure or modified real 
offense system of the sort it originally wanted, and it abandoned that 
approach.
    The Commission, in its January 1987 Revised Draft and the present 
guidelines, has moved closer to a `charge offense' system. The system 
is not, however, pure; it has a number of real elements. For one thing, 
the hundreds of overlapping and duplicative statutory provisions that 
make up the federal criminal law have forced the Commission to write 
guidelines that are descriptive of generic conduct rather than tracking 
purely statutory language. For another, the guidelines, both through 
specific offense characteristics and adjustments, take account of a 
number of important, commonly occurring real offense elements such as 
role in the offense, the presence of a gun, or the amount of money 
actually taken.
    Finally, it is important not to overstate the difference in 
practice between a real and a charge offense system. The federal 
criminal system, in practice, deals mostly with drug offenses, bank 
robberies and white collar crimes (such as fraud, embezzlement, and 
bribery). For the most part, the conduct that an indictment charges 
approximates the real and relevant conduct in which the offender 
actually engaged.
    The Commission recognizes its system will not completely cure the 
problems of a real offense system. It may still be necessary, for 
example, for a court to determine some particular real facts that will 
make a difference to the sentence. Yet, the Commission believes that 
the instances of controversial facts will be far fewer; indeed, there 
will be few enough so that the court system will be able to devise fair 
procedures for their determination. See United States v. Fatico, 579 
F.2d 707 (2d Cir. 1978) (permitting introduction of hearsay evidence at 
sentencing hearing under certain conditions), on remand, 458 F. Supp. 
388 (E.D.N.Y. 1978), aff'd, 603 F.2d 1053 (2d Cir. 1979) (holding that 
the government need not prove facts at sentencing hearing beyond a 
reasonable doubt), cert. denied, 444 U.S. 1073 (1980).
    The Commission also recognizes that a charge offense system has 
drawbacks of its own. One of the most important is its potential to 
turn over to the prosecutor the power to determine the sentence by 
increasing or decreasing the number (or content) of the counts in an 
indictment. Of course, the defendant's actual conduct (that which the 
prosecutor can prove in court) imposes a natural limit upon the 
prosecutor's ability to increase a defendant's sentence. Moreover, the 
Commission has written its rules for the treatment of multicount 
convictions with an eye toward eliminating unfair treatment that might 
flow from count manipulation. For example, the guidelines treat a 
three-count indictment, each count of which charges sale of 100 grams 
of heroin, or theft of $10,000, the same as a single-count indictment 
charging sale of 300 grams of heroin or theft of $30,000. Further, a 
sentencing court may control any inappropriate manipulation of the 
indictment through use of its power to depart from the specific 
guideline sentence. Finally, the Commission will closely monitor 
problems arising out of count manipulation and will make appropriate 
adjustments should they become necessary.
    (b) Departures.
    The new sentencing statute permits a court to depart from a 
guideline-specified sentence only when it finds `an aggravating or 
mitigating circumstance * * * that was not adequately taken into 
consideration by the Sentencing Commission * * *'. 18 U.S.C. 3553(b). 
Thus, in principle, the Commission, by specifying that it had 
adequately considered a particular factor, could prevent a court from 
using it as grounds for departure. In this initial set of guidelines, 
however, the Commission does not so limit the courts' departure powers. 
The Commission intends the sentencing courts to treat each guideline as 
carving out a `heartland,' a set of typical cases embodying the conduct 
that each guideline describes. When a court finds an atypical case, one 
to which a particular guideline linguistically applies but where 
conduct significantly differs from the norm, the court may consider 
whether a departure is warranted. Section 5H1.10 (Race, Sex, National 
Origin, Creed, Religion, Socio-Economic Status), the third sentence of 
5H1.4, and the last sentence of Sec.  5K2.12, list a few factors that 
the court cannot take into account as grounds for departure. With those 
specific exceptions, however, the Commission does not intend to limit 
the kinds of factors (whether or not mentioned anywhere else in the 
guidelines) that could constitute grounds for departure in an unusual 
case.
    The Commission has adopted this departure policy for two basic 
reasons. First is the difficulty of foreseeing and capturing a single 
set of guidelines that encompasses the vast range of human conduct 
potentially relevant to a sentencing decision. The Commission also 
recognizes that in the initial set of guidelines it need not do so. The 
Commission is a permanent body, empowered by law to write and rewrite 
guidelines, with progressive changes, over many years. By monitoring 
when courts depart from the guidelines and by analyzing their stated 
reasons for doing so, the Commission, over time, will be able to create 
more accurate guidelines that specify precisely where departures should 
and should not be permitted.
    Second, the Commission believes that despite the courts' legal 
freedom to depart from the guidelines, they will not do so very often. 
This is because the guidelines, offense by offense, seek to take 
account of those factors that the Commission's sentencing data indicate 
make a significant difference in sentencing at the present time. Thus, 
for example, where the presence of actual physical injury currently 
makes an important difference in final sentences, as in the case of 
robbery, assault, or arson, the guidelines specifically instruct the 
judge to use this factor to augment the sentence. Where the guidelines 
do not specify an augmentation or diminution, this is generally because 
the sentencing data do not permit the Commission, at this time, to 
conclude that the factor is empirically important in relation to the 
particular offense. Of course, a factor (say physical injury) may 
nonetheless sometimes occur in connection with a crime (such as fraud) 
where it does not often occur. If, however, as the data indicate, such 
occurrences are rare, they are precisely the type of events that the 
court's departure powers were designed to cover -- unusual cases 
outside the range of the more typical offenses for which the guidelines 
were designed. Of course, the Commission recognizes that even its 
collection and analysis of 10,000 presentence reports are an imperfect 
source of data sentencing estimates. Rather than rely heavily at this 
time upon impressionistic accounts, however, the Commission believes it 
wiser to wait and collect additional data from our continuing 
monitoring process that may demonstrate how the guidelines work in 
practice before further modification.
    It is important to note that the guidelines refer to three 
different kinds of departure. The first kind, which will

[[Page 60165]]

most frequently be used, is in effect an interpolation between two 
adjacent, numerically oriented guideline rules. A specific offense 
characteristic, for example, might require an increase of four levels 
for serious bodily injury but two levels for bodily injury. Rather than 
requiring a court to force middle instances into either the serious' or 
the `simple' category, the guideline commentary suggests that the court 
may interpolate and select a midpoint increase of three levels. The 
Commission has decided to call such an interpolation a `departure' in 
light of the legal views that a guideline providing for a range of 
increases in offense levels may violate the statute's 25 percent rule 
(though others have presented contrary legal arguments). Since 
interpolations are technically departures, the courts will have to 
provide reasons for their selection, and it will be subject to review 
for `reasonableness' on appeal. The Commission believes, however, that 
a simple reference by the court to the `mid-category' nature of the 
facts will typically provide sufficient reason. It does not foresee 
serious practical problems arising out of the application of the appeal 
provisions to this form of departure.
    The second kind involves instances in which the guidelines provide 
specific guidance for departure, by analogy or by other numerical or 
non-numerical suggestions. For example, the commentary to Sec.  2G1.1 
(Transportation for Prostitution), recommends a downward adjustment of 
eight levels where commercial purpose was not involved. The Commission 
intends such suggestions as policy guidance for the courts. The 
Commission expects that most departures will reflect the suggestions, 
and that the courts of appeals may prove more likely to find departures 
`unreasonable' where they fall outside suggested levels.
    A third kind of departure will remain unguided. It may rest upon 
grounds referred to in Chapter 5, Part H, or on grounds not mentioned 
in the guidelines. While Chapter 5, Part H lists factors that the 
Commission believes may constitute grounds for departure, those 
suggested grounds are not exhaustive. The Commission recognizes that 
there may be other grounds for departure that are not mentioned; it 
also believes there may be cases in which a departure outside suggested 
levels is warranted. In its view, however, such cases will be highly 
unusual.
    (c) Plea Agreements.
    Nearly ninety percent of all federal criminal cases involve guilty 
pleas, and many of these cases involve some form of plea agreement. 
Some commentators on early Commission guideline drafts have urged the 
Commission not to attempt any major reforms of the agreement process, 
on the grounds that any set of guidelines that threatens to radically 
change present practice also threatens to make the federal system 
unmanageable. Others, starting with the same facts, have argued that 
guidelines which fail to control and limit plea agreements would leave 
untouched a `loophole' large enough to undo the good that sentencing 
guidelines may bring. Still other commentators make both sets of 
arguments.
    The Commission has decided that these initial guidelines will not, 
in general, make significant changes in current plea agreement 
practices. The court will accept or reject any such agreements 
primarily in accordance with the rules set forth in Fed.R.Crim.P. 
11(e). The Commission will collect data on the courts' plea practices 
and will analyze this information to determine when and why the courts 
accept or reject plea agreements. In light of this information and 
analysis, the Commission will seek to further regulate the plea 
agreement process as appropriate.
    The Commission nonetheless expects the initial set of guidelines to 
have a positive, rationalizing impact upon plea agreements for two 
reasons. First, the guidelines create a clear, definite expectation in 
respect to the sentence that a court will impose if a trial takes 
place. Insofar as a prosecutor and defense attorney seek to agree about 
a likely sentence or range of sentences, they will no longer work in 
the dark. This fact alone should help to reduce irrationality in 
respect to actual sentencing outcomes. Second, the guidelines create a 
norm to which judges will likely refer when they decide whether, under 
Rule 11(e), to accept or to reject a plea agreement or recommendation. 
Since they will have before them the norm, the relevant factors (as 
disclosed in the plea agreement), and the reason for the agreement, 
they will find it easier than at present to determine whether there is 
sufficient reason to accept a plea agreement that departs from the 
norm.
    (d) Probation and Split Sentences.
    The statute provides that the guidelines are to `reflect the 
general appropriateness of imposing a sentence other than imprisonment 
in cases in which the defendant is a first offender who has not been 
convicted of a crime of violence or an otherwise serious offense * * * 
28 U.S.C. 994(j). Under present sentencing practice, courts sentence to 
probation an inappropriately high percentage of offenders guilty of 
certain economic crimes, such as theft, tax evasion, antitrust 
offenses, insider trading, fraud, and embezzlement, that in the 
Commission's view are `serious.' If the guidelines were to permit 
courts to impose probation instead of prison in many or all such cases, 
the present sentences would continue to be ineffective.
    The Commission's solution to this problem has been to write 
guidelines that classify as `serious' (and therefore subject to 
mandatory prison sentences) many offenses for which probation is now 
frequently given. At the same time, the guidelines will permit the 
sentencing court to impose short prison terms in many such cases. The 
Commission's view is that the definite prospect of prison, though the 
term is short, will act as a significant deterrent to many of these 
crimes, particularly when compared with the status quo where probation, 
not prison, is the norm.
    More specifically, the guidelines work as follows in respect to a 
first offender. For offense levels one through six, the sentencing 
court may elect to sentence the offender to probation (with or without 
confinement conditions) or to a prison term. For offense levels seven 
through ten, the court may substitute probation for a prison term, but 
the probation must include confinement conditions (community 
confinement or intermittent confinement). For offense levels eleven and 
twelve, the court must impose at least one half the minimum confinement 
sentence in the form of prison confinement, the remainder to be served 
on supervised release with a condition of community confinement. The 
Commission, of course, has not dealt with the single acts of aberrant 
behavior that still may justify probation at higher offense levels 
through departures.
    (e) Multi-Count Convictions.
    The Commission, like other sentencing commissions, has found it 
particularly difficult to develop rules for sentencing defendants 
convicted of multiple violations of law, each of which makes up a 
separate count in an indictment. The reason it is difficult is that 
when a defendant engages in conduct that causes several harms, each 
additional harm, even if it increases the extent to which punishment is 
warranted, does not necessarily warrant a proportionate increase in 
punishment. A defendant who assaults others during a fight, for 
example, may warrant more punishment if he injures ten people than if 
he injures one, but his conduct does not necessarily warrant ten times 
the punishment. If it did, many of the

[[Page 60166]]

simplest offenses, for reasons that are often fortuitous, would lead to 
life sentences of imprisonment--sentences that neither `just deserts' 
nor `crime control' theories of punishment would find justified.
    Several individual guidelines provide special instructions for 
increasing punishment when the conduct that is the subject of that 
count involves multiple occurrences or has caused several harms. The 
guidelines also provide general rules for aggravating punishment in 
light of multiple harms charged separately in separate counts. These 
rules may produce occasional anomalies, but normally they will permit 
an appropriate degree of aggravation of punishment when multiple 
offenses that are the subjects of separate counts take place.
    These rules are set out in Chapter Three, Part D. They essentially 
provide: (1) When the conduct involves fungible items, e.g., separate 
drug transactions or thefts of money, the amounts are added and the 
guidelines apply to the total amount. (2) When nonfungible harms are 
involved, the offense level for the most serious count is increased 
(according to a somewhat diminishing scale) to reflect the existence of 
other counts of conviction.
    The rules have been written in order to minimize the possibility 
that an arbitrary casting of a single transaction into several counts 
will produce a longer sentence. In addition, the sentencing court will 
have adequate power to prevent such a result through departures where 
necessary to produce a mitigated sentence.
    (f) Regulatory Offenses.
    Regulatory statutes, though primarily civil in nature, sometimes 
contain criminal provisions in respect to particularly harmful 
activity. Such criminal provisions often describe not only substantive 
offenses, but also more technical, administratively-related offenses 
such as failure to keep accurate records or to provide requested 
information. These criminal statutes pose two problems. First, which 
criminal regulatory provisions should the Commission initially 
consider, and second, how should it treat technical or 
administratively-related criminal violations?
    In respect to the first problem, the Commission found that it 
cannot comprehensively treat all regulatory violations in the initial 
set of guidelines. There are hundreds of such provisions scattered 
throughout the United States Code. To find all potential violations 
would involve examination of each individual federal regulation. 
Because of this practical difficulty, the Commission has sought to 
determine, with the assistance of the Department of Justice and several 
regulatory agencies, which criminal regulatory offenses are 
particularly important in light of the need for enforcement of the 
general regulatory scheme. The Commission has sought to treat these 
offenses in these initial guidelines. It will address the less common 
regulatory offenses in the future.
    In respect to the second problem, the Commission has developed a 
system for treating technical recordkeeping and reporting offenses, 
dividing them into four categories.
    First, in the simplest of cases, the offender may have failed to 
fill out a form intentionally, but without knowledge or intent that 
substantive harm would likely follow. He might fail, for example, to 
keep an accurate record of toxic substance transport, but that failure 
may not lead, nor be likely to lead, to the release or improper 
treatment of any toxic substance. Second, the same failure may be 
accompanied by a significant likelihood that substantive harm will 
occur; it may make a release of a toxic substance more likely. Third, 
the same failure may have led to substantive harm. Fourth, the failure 
may represent an effort to conceal a substantive harm that has 
occurred.
    The structure of a typical guideline for a regulatory offense is as 
follows:
    (1) The guideline provides a low base offense level (6) aimed at 
the first type of recordkeeping or reporting offense. It gives the 
court the legal authority to impose a punishment ranging from probation 
up to six months of imprisonment.
    (2) Specific offense characteristics designed to reflect 
substantive offenses that do occur (in respect to some regulatory 
offenses), or that are likely to occur, increase the offense level.
    (3) A specific offense characteristic also provides that a 
recordkeeping or reporting offense that conceals a substantive offense 
will be treated like the substantive offense.
    The Commission views this structure as an initial effort. It may 
revise its approach in light of further experience and analysis of 
regulatory crimes.
    (g) Sentencing Ranges.
    In determining the appropriate sentencing ranges for each offense, 
the Commission began by estimating the average sentences now being 
served within each category. It also examined the sentence specified in 
congressional statutes, in the parole guidelines, and in other 
relevant, analogous sources. The Commission's forthcoming detailed 
report will contain a comparison between estimates of existing 
sentencing practices and sentences under the guidelines.
    While the Commission has not considered itself bound by existing 
sentencing practice, it has not tried to develop an entirely new system 
of sentencing on the basis of theory alone. Guideline sentences in many 
instances will approximate existing practice, but adherence to the 
guidelines will help to eliminate wide disparity. For example, where a 
high percentage of persons now receive probation, a guideline may 
include one or more specific offense characteristics in an effort to 
distinguish those types of defendants who now receive probation from 
those who receive more severe sentences. In some instances, short 
sentences of incarceration for all offenders in a category have been 
substituted for a current sentencing practice of very wide variability 
in which some defendants receive probation while others receive several 
years in prison for the same offense. Moreover, inasmuch as those who 
currently plead guilty often receive lesser sentences, the guidelines 
also permit the court to impose lesser sentences on those defendants 
who accept responsibility and those who cooperate with the government.
    The Commission has also examined its sentencing ranges in light of 
their likely impact upon prison population. Specific legislation, such 
as the new drug law and the career offender provisions of the 
sentencing law, require the Commission to promulgate rules that will 
lead to substantial prison population increases. These increases will 
occur irrespective of any guidelines. The guidelines themselves, 
insofar as they reflect policy decisions made by the Commission (rather 
than legislated mandatory minimum, or career offender, sentences), will 
lead to an increase in prison population that computer models, produced 
by the Commission and the Bureau of Prisons, estimate at approximately 
10 percent, over a period of ten years.
    (h) The Sentencing Table.
    The Commission has established a sentencing table. For technical 
and practical reasons it has 43 levels. Each row in the table contains 
levels that overlap with the levels in the preceding and succeeding 
rows. By overlapping the levels, the table should discourage 
unnecessary litigation. Both prosecutor and defendant will realize that 
the difference between one level and another will not necessarily make 
a difference in the sentence that the judge imposes. Thus, little 
purpose will be served in protracted litigation trying to determine, 
for example, whether

[[Page 60167]]

$10,000 or $11,000 was obtained as a result of a fraud. At the same 
time, the rows work to increase a sentence proportionately. A change of 
6 levels roughly doubles the sentence irrespective of the level at 
which one starts. The Commission, aware of the legal requirement that 
the maximum of any range cannot exceed the minimum by more than the 
greater of 25 percent or six months, also wishes to permit courts the 
greatest possible range for exercising discretion. The table overlaps 
offense levels meaningfully, works proportionately, and at the same 
time preserves the maximum degree of allowable discretion for the judge 
within each level.
    Similarly, many of the individual guidelines refer to tables that 
correlate amounts of money with offense levels. These tables often have 
many, rather than a few levels. Again, the reason is to minimize the 
likelihood of unnecessary litigation. If a money table were to make 
only a few distinctions, each distinction would become more important 
and litigation as to which category an offender fell within would 
become more likely. Where a table has many smaller monetary 
distinctions, it minimizes the likelihood of litigation, for the 
importance of the precise amount of money involved is considerably 
less.
5. A Concluding Note
    The Commission emphasizes that its approach in this initial set of 
guidelines is one of caution. It has examined the many hundreds of 
criminal statutes in the United States Code. It has begun with those 
that are the basis for a significant number of prosecutions. It has 
sought to place them in a rational order. It has developed additional 
distinctions relevant to the application of these provisions, and it 
has applied sentencing ranges to each resulting category. In doing so, 
it has relied upon estimates of existing sentencing practices as 
revealed by its own statistical analyses, based on summary reports of 
some 40,000 convictions, a sample of 10,000 augmented presentence 
reports, the parole guidelines and policy judgments.
    The Commission recognizes that some will criticize this approach as 
overly cautious, as representing too little a departure from existing 
practice. Yet, it will cure wide disparity. The Commission is a 
permanent body that can amend the guidelines each year. Although the 
data available to it, like all data, are imperfect, experience with 
these guidelines will lead to additional information and provide a firm 
empirical basis for revision.
    Finally, the guidelines will apply to approximately 90 percent of 
all cases in the federal courts. Because of time constraints and the 
nonexistence of statistical information, some offenses that occur 
infrequently are not considered in this initial set of guidelines. They 
will, however, be addressed in the near future. Their exclusion from 
this initial submission does not reflect any judgment about their 
seriousness. The Commission has also deferred promulgation of 
guidelines pertaining to fines, probation and other sanctions for 
organizational defendants, with the exception of antitrust violations. 
The Commission also expects to address this area in the near future.'.

Amendments

1989 Amendments

    Amendment 67 amended Subpart 4(b) in the first sentence of the 
first paragraph by striking `* * * that was' and inserting `of a kind, 
or to a degree,'; in the second sentence of the last paragraph by 
striking `Part H' and inserting `Part K (Departures)'; and in the third 
sentence of the last paragraph by striking `Part H' and inserting `Part 
K'.
    Amendment 68 amended Subpart 4(b) in the first sentence of the 
fourth paragraph by striking `three' and inserting `two'; in the fourth 
paragraph by striking the second through eighth sentences as follows:

    `The first kind, which will most frequently be used, is in 
effect an interpolation between two adjacent, numerically oriented 
guideline rules. A specific offense characteristic, for example, 
might require an increase of four levels for serious bodily injury 
but two levels for bodily injury. Rather than requiring a court to 
force middle instances into either the `serious' or the `simple' 
category, the guideline commentary suggests that the court may 
interpolate and select a midpoint increase of three levels. The 
Commission has decided to call such an interpolation a `departure' 
in light of the legal views that a guideline providing for a range 
of increases in offense levels may violate the statute's 25 percent 
rule (though other have presented contrary legal arguments). Since 
interpolations are technically departures, the courts will have to 
provide reasons for their selection, and it will be subject to 
review for `reasonableness' on appeal. The Commission believes, 
however, that a simple reference by the court to the `mid-category' 
nature of the facts will typically provide sufficient reason. It 
does not foresee serious practical problems arising out of the 
application of the appeal provisions to this form of departure.';

in the first sentence of the fifth paragraph by striking `second' and 
inserting `first'; and in the first sentence of the sixth paragraph by 
striking `third' and inserting `second'.

1990 Amendment

    Amendment 307 amended Subparts 2 through 5 to read as follows:
2. The Statutory Mission
    The Sentencing Reform Act of 1984 (Title II of the Comprehensive 
Crime Control Act of 1984) provides for the development of guidelines 
that will further the basic purposes of criminal punishment: 
deterrence, incapacitation, just punishment, and rehabilitation. The 
Act delegates broad authority to the Commission to review and 
rationalize the federal sentencing process.
    The Act contains detailed instructions as to how this determination 
should be made, the most important of which directs the Commission to 
create categories of offense behavior and offender characteristics. An 
offense behavior category might consist, for example, of `bank robbery/
committed with a gun/$2500 taken.' An offender characteristic category 
might be `offender with one prior conviction not resulting in 
imprisonment.' The Commission is required to prescribe guideline ranges 
that specify an appropriate sentence for each class of convicted 
persons determined by coordinating the offense behavior categories with 
the offender characteristic categories. Where the guidelines call for 
imprisonment, the range must be narrow: The maximum of the range cannot 
exceed the minimum by more than the greater of 25 percent or six 
months. 28 U.S.C. 994(b)(2).
    Pursuant to the Act, the sentencing court must select a sentence 
from within the guideline range. If, however, a particular case 
presents atypical features, the Act allows the court to depart from the 
guidelines and sentence outside the prescribed range. In that case, the 
court must specify reasons for departure. 18 U.S.C. 3553(b). If the 
court sentences within the guideline range, an appellate court may 
review the sentence to determine whether the guidelines were correctly 
applied. If the court departs from the guideline range, an appellate 
court may review the reasonableness of the departure. 18 U.S.C. 3742. 
The Act also abolishes parole, and substantially reduces and 
restructures good behavior adjustments.
    The Commission's initial guidelines were submitted to Congress on 
April 13, 1987. After the prescribed period of Congressional review, 
the guidelines took effect on November 1, 1987, and apply to all 
offenses committed on or after that date. The Commission has the 
authority to submit guideline amendments each year to Congress between 
the beginning of a regular

[[Page 60168]]

Congressional session and May 1. Such amendments automatically take 
effect 180 days after submission unless a law is enacted to the 
contrary. 28 U.S.C. 994(p).
    The initial sentencing guidelines and policy statements were 
developed after extensive hearings, deliberation, and consideration of 
substantial public comment. The Commission emphasizes, however, that it 
views the guideline-writing process as evolutionary. It expects, and 
the governing statute anticipates, that continuing research, 
experience, and analysis will result in modifications and revisions to 
the guidelines through submission of amendments to Congress. To this 
end, the Commission is established as a permanent agency to monitor 
sentencing practices in the federal courts.
3. The Basic Approach (Policy Statement)
    To understand the guidelines and their underlying rationale, it is 
important to focus on the three objectives that Congress sought to 
achieve in enacting the Sentencing Reform Act of 1984. The Act's basic 
objective was to enhance the ability of the criminal justice system to 
combat crime through an effective, fair sentencing system. To achieve 
this end, Congress first sought honesty in sentencing. It sought to 
avoid the confusion and implicit deception that arose out of the pre-
guidelines sentencing system which required the court to impose an 
indeterminate sentence of imprisonment and empowered the parole 
commission to determine how much of the sentence an offender actually 
would serve in prison. This practice usually resulted in a substantial 
reduction in the effective length of the sentence imposed, with 
defendants often serving only about one-third of the sentence imposed 
by the court.
    Second, Congress sought reasonable uniformity in sentencing by 
narrowing the wide disparity in sentences imposed for similar criminal 
offenses committed by similar offenders. Third, Congress sought 
proportionality in sentencing through a system that imposes 
appropriately different sentences for criminal conduct of differing 
severity.
    Honesty is easy to achieve: The abolition of parole makes the 
sentence imposed by the court the sentence the offender will serve, 
less approximately fifteen percent for good behavior. There is a 
tension, however, between the mandate of uniformity and the mandate of 
proportionality. Simple uniformity--sentencing every offender to five 
years--destroys proportionality. Having only a few simple categories of 
crimes would make the guidelines uniform and easy to administer, but 
might lump together offenses that are different in important respects. 
For example, a single category for robbery that included armed and 
unarmed robberies, robberies with and without injuries, robberies of a 
few dollars and robberies of millions, would be far too broad.
    A sentencing system tailored to fit every conceivable wrinkle of 
each case would quickly become unworkable and seriously compromise the 
certainty of punishment and its deterrent effect. For example: a bank 
robber with (or without) a gun, which the robber kept hidden (or 
brandished), might have frightened (or merely warned), injured 
seriously (or less seriously), tied up (or simply pushed) a guard, 
teller, or customer, at night (or at noon), in an effort to obtain 
money for other crimes (or for other purposes), in the company of a few 
(or many) other robbers, for the first (or fourth) time.
    The list of potentially relevant features of criminal behavior is 
long; the fact that they can occur in multiple combinations means that 
the list of possible permutations of factors is virtually endless. The 
appropriate relationships among these different factors are exceedingly 
difficult to establish, for they are often context specific. Sentencing 
courts do not treat the occurrence of a simple bruise identically in 
all cases, irrespective of whether that bruise occurred in the context 
of a bank robbery or in the context of a breach of peace. This is so, 
in part, because the risk that such a harm will occur differs depending 
on the underlying offense with which it is connected; and also because, 
in part, the relationship between punishment and multiple harms is not 
simply additive. The relation varies depending on how much other harm 
has occurred. Thus, it would not be proper to assign points for each 
kind of harm and simply add them up, irrespective of context and total 
amounts.
    The larger the number of subcategories of offense and offender 
characteristics included in the guidelines, the greater the complexity 
and the less workable the system. Moreover, complex combinations of 
offense and offender characteristics would apply and interact in 
unforeseen ways to unforeseen situations, thus failing to cure the 
unfairness of a simple, broad category system. Finally, and perhaps 
most importantly, probation officers and courts, in applying a complex 
system having numerous subcategories, would be required to make a host 
of decisions regarding whether the underlying facts were sufficient to 
bring the case within a particular subcategory. The greater the number 
of decisions required and the greater their complexity, the greater the 
risk that different courts would apply the guidelines differently to 
situations that, in fact, are similar, thereby reintroducing the very 
disparity that the guidelines were designed to reduce.
    In view of the arguments, it would have been tempting to retreat to 
the simple, broad category approach and to grant courts the discretion 
to select the proper point along a broad sentencing range. Granting 
such broad discretion, however, would have risked correspondingly broad 
disparity in sentencing, for different courts may exercise their 
discretionary powers in different ways. Such an approach would have 
risked a return to the wide disparity that Congress established the 
Commission to reduce and would have been contrary to the Commission's 
mandate set forth in the Sentencing Reform Act of 1984.
    In the end, there was no completely satisfying solution to this 
problem. The Commission had to balance the comparative virtues and 
vices of broad, simple categorization and detailed, complex 
subcategorization, and within the constraints established by that 
balance, minimize the discretionary powers of the sentencing court. Any 
system will, to a degree, enjoy the benefits and suffer from the 
drawbacks of each approach.
    A philosophical problem arose when the Commission attempted to 
reconcile the differing perceptions of the purposes of criminal 
punishment. Most observers of the criminal law agree that the ultimate 
aim of the law itself, and of punishment in particular, is the control 
of crime. Beyond this point, however, the consensus seems to break 
down. Some argue that appropriate punishment should be defined 
primarily on the basis of the principle of `just desserts.' Under this 
principle, punishment should be scaled to the offender's culpability 
and the resulting harms. Others argue that punishment should be imposed 
primarily on the basis of practical `crime control' considerations. 
This theory calls for sentences that most effectively lessen the 
likelihood of future crime, either by deterring others or 
incapacitating the defendant.
    Adherents of each of these points of view urged the Commission to 
choose between them and accord one primacy over the other. As a 
practical matter, however, this choice was unnecessary because in most 
sentencing decisions

[[Page 60169]]

the application of either philosophy will produce the same or similar 
results.
    In its initial set of guidelines, the Commission sought to solve 
both the practical and philosophical problems of developing a coherent 
sentencing system by taking an empirical approach that used as a 
starting point data estimating pre-guidelines sentencing practice. It 
analyzed data drawn from 10,000 presentence investigations, the 
differing elements of various crimes as distinguished in substantive 
criminal statutes, the United States Parole Commission's guidelines and 
statistics, and data from other relevant sources in order to determine 
which distinctions were important in pre-guidelines practice. After 
consideration, the Commission accepted, modified, or rationalized these 
distinctions.
    This empirical approach helped the Commission resolve its practical 
problem by defining a list of relevant distinctions that, although of 
considerable length, was short enough to create a manageable set of 
guidelines. Existing categories are relatively broad and omit 
distinctions that some may believe important, yet they include most of 
the major distinctions that statutes and data suggest made a 
significant difference in sentencing decisions. Relevant distinctions 
not reflected in the guidelines probably will occur rarely and 
sentencing courts may take such unusual cases into account by departing 
from the guidelines.
    The Commission's empirical approach also helped resolve its 
philosophical dilemma. Those who adhere to a just desserts philosophy 
may concede that the lack of consensus might make it difficult to say 
exactly what punishment is deserved for a particular crime. Likewise, 
those who subscribe to a philosophy of crime control may acknowledge 
that the lack of sufficient data might make it difficult to determine 
exactly the punishment that will best prevent that crime. Both groups 
might therefore recognize the wisdom of looking to those distinctions 
that judges and legislators have, in fact, made over the course of 
time. These established distinctions are ones that the community 
believes, or has found over time, to be important from either a just 
desserts or crime control perspective.
    The Commission did not simply copy estimates of pre-guidelines 
practice as revealed by the data, even though establishing offense 
values on this basis would help eliminate disparity because the data 
represent averages. Rather, it departed from the data at different 
points for various important reasons. Congressional statutes, for 
example, suggested or required departure, as in the case of the Anti-
Drug Abuse Act of 1986 that imposed increased and mandatory minimum 
sentences. In addition, the data revealed inconsistencies in treatment, 
such as punishing economic crime less severely than other apparently 
equivalent behavior.
    Despite these policy-oriented departures from pre-guidelines 
practice, the guidelines represent an approach that begins with, and 
builds upon, empirical data. The guidelines will not please those who 
wish the Commission to adopt a single philosophical theory and then 
work deductively to establish a simple and perfect set of 
categorizations and distinctions. The guidelines may prove acceptable, 
however, to those who seek more modest, incremental improvements in the 
status quo, who believe the best is often the enemy of the good, and 
who recognize that these guidelines are, as the Act contemplates, but 
the first step in an evolutionary process. After spending considerable 
time and resources exploring alternative approaches, the Commission 
developed these guidelines as a practical effort toward the achievement 
of a more honest, uniform, equitable, proportional, and therefore 
effective sentencing system.
4. The Guidelines' Resolution of Major Issues (Policy Statement)
    The guideline-drafting process required the Commission to resolve a 
host of important policy questions typically involving rather evenly 
balanced sets of competing considerations. As an aid to understanding 
the guidelines, this introduction briefly discusses several of those 
issues; commentary in the guidelines explains others.
    (a) Real Offense vs. Charge Offense Sentencing.
    One of the most important questions for the Commission to decide 
was whether to base sentences upon the actual conduct in which the 
defendant engaged regardless of the charges for which he was indicted 
or convicted (`real offense' sentencing), or upon the conduct that 
constitutes the elements of the offense for which the defendant was 
charged and of which he was convicted (`charge offense' sentencing). A 
bank robber, for example, might have used a gun, frightened bystanders, 
taken $50,000, injured a teller, refused to stop when ordered, and 
raced away damaging property during his escape. A pure real offense 
system would sentence on the basis of all identifiable conduct. A pure 
charge offense system would overlook some of the harms that did not 
constitute statutory elements of the offenses of which the defendant 
was convicted.
    The Commission initially sought to develop a pure real offense 
system. After all, the pre-guidelines sentencing system was, in a 
sense, this type of system. The sentencing court and the parole 
commission took account of the conduct in which the defendant actually 
engaged, as determined in a presentence report, at the sentencing 
hearing, or before a parole commission hearing officer. The 
Commission's initial efforts in this direction, carried out in the 
spring and early summer of 1986, proved unproductive, mostly for 
practical reasons. To make such a system work, even to formalize and 
rationalize the status quo, would have required the Commission to 
decide precisely which harms to take into account, how to add them up, 
and what kinds of procedures the courts should use to determine the 
presence or absence of disputed factual elements. The Commission found 
no practical way to combine and account for the large number of diverse 
harms arising in different circumstances; nor did it find a practical 
way to reconcile the need for a fair adjudicatory procedure with the 
need for a speedy sentencing process given the potential existence of 
hosts of adjudicated `real harm' facts in many typical cases. The 
effort proposed as a solution to these problems required the use of, 
for example, quadratic roots and other mathematical operations that the 
Commission considered too complex to be workable. In the Commission's 
view, such a system risked return to wide disparity in sentencing 
practice.
    In its initial set of guidelines submitted to Congress in April 
1987, the Commission moved closer to a charge offense system. This 
system, however, does contain a significant number of real offense 
elements. For one thing, the hundreds of overlapping and duplicative 
statutory provisions that make up the federal criminal law forced the 
Commission to write guidelines that are descriptive of generic conduct 
rather than guidelines that track purely statutory language. For 
another, the guidelines take account of a number of important, commonly 
occurring real offense elements such as role in the offense, the 
presence of a gun, or the amount of money actually taken, through 
alternative base offense levels, specific offense characteristics, 
cross references, and adjustments.
    The Commission recognized that a charge offense system has 
drawbacks of its own. One of the most important is the potential it 
affords prosecutors to

[[Page 60170]]

influence sentences by increasing or decreasing the number of counts in 
an indictment. Of course, the defendant's actual conduct (that which 
the prosecutor can prove in court) imposes a natural limit upon the 
prosecutor's ability to increase a defendant's sentence. Moreover, the 
Commission has written its rules for the treatment of multicount 
convictions with an eye toward eliminating unfair treatment that might 
flow from count manipulation. For example, the guidelines treat a 
three-count indictment, each count of which charges sale of 100 grams 
of heroin or theft of $10,000, the same as a single-count indictment 
charging sale of 300 grams of heroin or theft of $30,000. Furthermore, 
a sentencing court may control any inappropriate manipulation of the 
indictment through use of its departure power. Finally, the Commission 
will closely monitor charging and plea agreement practices and will 
make appropriate adjustments should they become necessary.
    (b) Departures.
    The sentencing statute permits a court to depart from a guideline-
specified sentence only when it finds `an aggravating or mitigating 
circumstance of a kind, or to a degree, not adequately taken into 
consideration by the Sentencing Commission in formulating the 
guidelines that should result in a sentence different from that 
described.' 18 U.S.C. 3553(b). The Commission intends the sentencing 
courts to treat each guideline as carving out a `heartland,' a set of 
typical cases embodying the conduct that each guideline describes. When 
a court finds an atypical case, one to which a particular guideline 
linguistically applies but where conduct significantly differs from the 
norm, the court may consider whether a departure is warranted. Section 
5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic 
Status), the third sentence of Sec.  5H1.4 (Physical Condition, 
Including Drug or Alcohol Dependence or Abuse), and the last sentence 
of Sec.  5K2.12 (Coercion and Duress) list several factors that the 
court cannot take into account as grounds for departure. With those 
specific exceptions, however, the Commission does not intend to limit 
the kinds of factors, whether or not mentioned anywhere else in the 
guidelines, that could constitute grounds for departure in an unusual 
case.
    The Commission has adopted this departure policy for two reasons. 
First, it is difficult to prescribe a single set of guidelines that 
encompasses the vast range of human conduct potentially relevant to a 
sentencing decision. The Commission also recognizes that the initial 
set of guidelines need not do so. The Commission is a permanent body, 
empowered by law to write and rewrite guidelines, with progressive 
changes, over many years. By monitoring when courts depart from the 
guidelines and by analyzing their stated reasons for doing so and court 
decisions with references thereto, the Commission, over time, will be 
able to refine the guidelines to specify more precisely when departures 
should and should not be permitted.
    Second, the Commission believes that despite the courts' legal 
freedom to depart from the guidelines, they will not do so very often. 
This is because the guidelines, offense by offense, seek to take 
account of those factors that the Commission's data indicate made a 
significant difference in pre-guidelines sentencing practice. Thus, for 
example, where the presence of physical injury made an important 
difference in pre-guidelines sentencing practice (as in the case of 
robbery or assault), the guidelines specifically include this factor to 
enhance the sentence. Where the guidelines do not specify an 
augmentation or diminution, this is generally because the sentencing 
data did not permit the Commission to conclude that the factor was 
empirically important in relation to the particular offense. Of course, 
an important factor (e.g., physical injury) may infrequently occur in 
connection with a particular crime (e.g., fraud). Such rare occurrences 
are precisely the type of events that the courts' departure powers were 
designed to cover--unusual cases outside the range of the more typical 
offenses for which the guidelines were designed.
    It is important to note that the guidelines refer to two different 
kinds of departure. The first involves instances in which the 
guidelines provide specific guidance for departure by analogy or by 
other numerical or non-numerical suggestions. For example, the 
Commentary to Sec.  2G1.1 (Transportation for the Purpose of 
Prostitution or Prohibited Sexual Conduct) recommends a downward 
departure of eight levels where a commercial purpose was not involved. 
The Commission intends such suggestions as policy guidance for the 
courts. The Commission expects that most departures will reflect the 
suggestions and that the courts of appeals may prove more likely to 
find departures `unreasonable' where they fall outside suggested 
levels.
    A second type of departure will remain unguided. It may rest upon 
grounds referred to in Chapter Five, Part K (Departures) or on grounds 
not mentioned in the guidelines. While Chapter Five, Part K lists 
factors that the Commission believes may constitute grounds for 
departure, the list is not exhaustive. The Commission recognizes that 
there may be other grounds for departure that are not mentioned; it 
also believes there may be cases in which a departure outside suggested 
levels is warranted. In its view, however, such cases will be highly 
infrequent.
    (c) Plea Agreements.
    Nearly ninety percent of all federal criminal cases involve guilty 
pleas and many of these cases involve some form of plea agreement. Some 
commentators on early Commission guideline drafts urged the Commission 
not to attempt any major reforms of the plea agreement process on the 
grounds that any set of guidelines that threatened to change pre-
guidelines practice radically also threatened to make the federal 
system unmanageable. Others argued that guidelines that failed to 
control and limit plea agreements would leave untouched a `loophole' 
large enough to undo the good that sentencing guidelines would bring.
    The Commission decided not to make major changes in plea agreement 
practices in the initial guidelines, but rather to provide guidance by 
issuing general policy statements concerning the acceptance of plea 
agreements in Chapter Six, Part B (Plea Agreements). The rules set 
forth in Fed. R. Crim. P. 11(e) govern the acceptance or rejection of 
such agreements. The Commission will collect data on the courts' plea 
practices and will analyze this information to determine when and why 
the courts accept or reject plea agreements and whether plea agreement 
practices are undermining the intent of the Sentencing Reform Act. In 
light of this information and analysis, the Commission will seek to 
further regulate the plea agreement process as appropriate. 
Importantly, if the policy statements relating to plea agreements are 
followed, circumvention of the Sentencing Reform Act and the guidelines 
should not occur.
    The Commission expects the guidelines to have a positive, 
rationalizing impact upon plea agreements for two reasons. First, the 
guidelines create a clear, definite expectation in respect to the 
sentence that a court will impose if a trial takes place. In the event 
a prosecutor and defense attorney explore the possibility of a 
negotiated plea, they will no longer work in the dark. This fact alone 
should help to reduce irrationality in respect to actual sentencing 
outcomes. Second, the guidelines create a norm to which courts will 
likely refer when they decide

[[Page 60171]]

whether, under Rule 11(e), to accept or to reject a plea agreement or 
recommendation.
    (d) Probation and Split Sentences.
    The statute provides that the guidelines are to reflect the general 
appropriateness of imposing a sentence other than imprisonment in cases 
in which the defendant is a first offender who has not been convicted 
of a crime of violence or an otherwise serious offense * * *.' 28 
U.S.C. 994(j). Under pre-guidelines sentencing practice, courts 
sentenced to probation an inappropriately high percentage of offenders 
guilty of certain economic crimes, such as theft, tax evasion, 
antitrust offenses, insider trading, fraud, and embezzlement, that in 
the Commission's view are `serious.'
    The Commission's solution to this problem has been to write 
guidelines that classify as serious many offenses for which probation 
previously was frequently given and provide for at least a short period 
of imprisonment in such cases. The Commission concluded that the 
definite prospect of prison, even though the term may be short, will 
serve as a significant deterrent, particularly when compared with pre-
guidelines practice where probation, not prison, was the norm.
    More specifically, the guidelines work as follows in respect to a 
first offender. For offense levels one through six, the sentencing 
court may elect to sentence the offender to probation (with or without 
confinement conditions) or to a prison term. For offense levels seven 
through ten, the court may substitute probation for a prison term, but 
the probation must include confinement conditions (community 
confinement, intermittent confinement, or home detention). For offense 
levels eleven and twelve, the court must impose at least one-half the 
minimum confinement sentence in the form of prison confinement, the 
remainder to be served on supervised release with a condition of 
community confinement or home detention. The Commission, of course, has 
not dealt with the single acts of aberrant behavior that still may 
justify probation at higher offense levels through departures.
    (e) Multi-Count Convictions.
    The Commission, like several state sentencing commissions, has 
found it particularly difficult to develop guidelines for sentencing 
defendants convicted of multiple violations of law, each of which makes 
up a separate count in an indictment. The difficulty is that when a 
defendant engages in conduct that causes several harms, each additional 
harm, even if it increases the extent to which punishment is warranted, 
does not necessarily warrant a proportionate increase in punishment. A 
defendant who assaults others during a fight, for example, may warrant 
more punishment if he injures ten people than if he injures one, but 
his conduct does not necessarily warrant ten times the punishment. If 
it did, many of the simplest offenses, for reasons that are often 
fortuitous, would lead to sentences of life imprisonment--sentences 
that neither just deserts nor crime control theories of punishment 
would justify.
    Several individual guidelines provide special instructions for 
increasing punishment when the conduct that is the subject of that 
count involves multiple occurrences or has caused several harms. The 
guidelines also provide general rules for aggravating punishment in 
light of multiple harms charged separately in separate counts. These 
rules may produce occasional anomalies, but normally they will permit 
an appropriate degree of aggravation of punishment for multiple 
offenses that are the subjects of separate counts.
    These rules are set out in Chapter Three, Part D (Multiple Counts). 
They essentially provide: (1) When the conduct involves fungible items 
(e.g., separate drug transactions or thefts of money), the amounts are 
added and the guidelines apply to the total amount; (2) when 
nonfungible harms are involved, the offense level for the most serious 
count is increased (according to a diminishing scale) to reflect the 
existence of other counts of conviction. The guidelines have been 
written in order to minimize the possibility that an arbitrary casting 
of a single transaction into several counts will produce a longer 
sentence. In addition, the sentencing court will have adequate power to 
prevent such a result through departures.
    (f) Regulatory Offenses.
    Regulatory statutes, though primarily civil in nature, sometimes 
contain criminal provisions in respect to particularly harmful 
activity. Such criminal provisions often describe not only substantive 
offenses, but also more technical, administratively-related offenses 
such as failure to keep accurate records or to provide requested 
information. These statutes pose two problems: first, which criminal 
regulatory provisions should the Commission initially consider, and 
second, how should it treat technical or administratively-related 
criminal violations?
    In respect to the first problem, the Commission found that it could 
not comprehensively treat all regulatory violations in the initial set 
of guidelines. There are hundreds of such provisions scattered 
throughout the United States Code. To find all potential violations 
would involve examination of each individual federal regulation. 
Because of this practical difficulty, the Commission sought to 
determine, with the assistance of the Department of Justice and several 
regulatory agencies, which criminal regulatory offenses were 
particularly important in light of the need for enforcement of the 
general regulatory scheme. The Commission addressed these offenses in 
the initial guidelines.
    In respect to the second problem, the Commission has developed a 
system for treating technical recordkeeping and reporting offenses that 
divides them into four categories. First, in the simplest of cases, the 
offender may have failed to fill out a form intentionally, but without 
knowledge or intent that substantive harm would likely follow. He might 
fail, for example, to keep an accurate record of toxic substance 
transport, but that failure may not lead, nor be likely to lead, to the 
release or improper handling of any toxic substance. Second, the same 
failure may be accompanied by a significant likelihood that substantive 
harm will occur; it may make a release of a toxic substance more 
likely. Third, the same failure may have led to substantive harm. 
Fourth, the failure may represent an effort to conceal a substantive 
harm that has occurred.
    The structure of a typical guideline for a regulatory offense 
provides a low base offense level (e.g., 6) aimed at the first type of 
recordkeeping or reporting offense. Specific offense characteristics 
designed to reflect substantive harms that do occur in respect to some 
regulatory offenses, or that are likely to occur, increase the offense 
level. A specific offense characteristic also provides that a 
recordkeeping or reporting offense that conceals a substantive offense 
will have the same offense level as the substantive offense.
    (g) Sentencing Ranges.
    In determining the appropriate sentencing ranges for each offense, 
the Commission estimated the average sentences served within each 
category under the pre-guidelines sentencing system. It also examined 
the sentences specified in federal statutes, in the parole guidelines, 
and in other relevant, analogous sources. The Commission's 
Supplementary Report on the Initial Sentencing Guidelines (1987) 
contains a comparison between estimates of pre-guidelines sentencing 
practice and sentences under the guidelines.
    While the Commission has not considered itself bound by pre-

[[Page 60172]]

guidelines sentencing practice, it has not attempted to develop an 
entirely new system of sentencing on the basis of theory alone. 
Guideline sentences, in many instances, will approximate average pre-
guidelines practice and adherence to the guidelines will help to 
eliminate wide disparity. For example, where a high percentage of 
persons received probation under pre-guidelines practice, a guideline 
may include one or more specific offense characteristics in an effort 
to distinguish those types of defendants who received probation from 
those who received more severe sentences. In some instances, short 
sentences of incarceration for all offenders in a category have been 
substituted for a pre-guidelines sentencing practice of very wide 
variability in which some defendants received probation while others 
received several years in prison for the same offense. Moreover, 
inasmuch as those who pleaded guilty under pre-guidelines practice 
often received lesser sentences, the guidelines permit the court to 
impose lesser sentences on those defendants who accept responsibility 
for their misconduct. For defendants who provide substantial assistance 
to the government in the investigation or prosecution of others, a 
downward departure may be warranted.
    The Commission has also examined its sentencing ranges in light of 
their likely impact upon prison population. Specific legislation, such 
as the Anti-Drug Abuse Act of 1986 and the career offender provisions 
of the Sentencing Reform Act of 1984 (28 U.S.C. 994(h)), required the 
Commission to promulgate guidelines that will lead to substantial 
prison population increases. These increases will occur irrespective of 
the guidelines. The guidelines themselves, insofar as they reflect 
policy decisions made by the Commission (rather than legislated 
mandatory minimum or career offender sentences), are projected to lead 
to an increase in prison population that computer models, produced by 
the Commission and the Bureau of Prisons in 1987, estimated at 
approximately 10 percent over a period of ten years.
    (h) The Sentencing Table.
    The Commission has established a sentencing table that for 
technical and practical reasons contains 43 levels. Each level in the 
table prescribes ranges that overlap with the ranges in the preceding 
and succeeding levels. By overlapping the ranges, the table should 
discourage unnecessary litigation. Both prosecution and defense will 
realize that the difference between one level and another will not 
necessarily make a difference in the sentence that the court imposes. 
Thus, little purpose will be served in protracted litigation trying to 
determine, for example, whether $10,000 or $11,000 was obtained as a 
result of a fraud. At the same time, the levels work to increase a 
sentence proportionately. A change of six levels roughly doubles the 
sentence irrespective of the level at which one starts. The guidelines, 
in keeping with the statutory requirement that the maximum of any range 
cannot exceed the minimum by more than the greater of 25 percent or six 
months (28 U.S.C. 994(b)(2)), permit courts to exercise the greatest 
permissible range of sentencing discretion. The table overlaps offense 
levels meaningfully, works proportionately, and at the same time 
preserves the maximum degree of allowable discretion for the court 
within each level.
    Similarly, many of the individual guidelines refer to tables that 
correlate amounts of money with offense levels. These tables often have 
many rather than a few levels. Again, the reason is to minimize the 
likelihood of unnecessary litigation. If a money table were to make 
only a few distinctions, each distinction would become more important 
and litigation over which category an offender fell within would become 
more likely. Where a table has many small monetary distinctions, it 
minimizes the likelihood of litigation because the precise amount of 
money involved is of considerably less importance.
5. A Concluding Note
    The Commission emphasizes that it drafted the initial guidelines 
with considerable caution. It examined the many hundreds of criminal 
statutes in the United States Code. It began with those that were the 
basis for a significant number of prosecutions and sought to place them 
in a rational order. It developed additional distinctions relevant to 
the application of these provisions and it applied sentencing ranges to 
each resulting category. In doing so, it relied upon pre-guidelines 
sentencing practice as revealed by its own statistical analyses based 
on summary reports of some 40,000 convictions, a sample of 10,000 
augmented presentence reports, the parole guidelines, and policy 
judgments.
    The Commission recognizes that some will criticize this approach as 
overly cautious, as representing too little a departure from pre-
guidelines sentencing practice. Yet, it will cure wide disparity. The 
Commission is a permanent body that can amend the guidelines each year. 
Although the data available to it, like all data, are imperfect, 
experience with the guidelines will lead to additional information and 
provide a firm empirical basis for consideration of revisions.
    Finally, the guidelines will apply to more than 90 percent of all 
felony and Class A misdemeanor cases in the federal courts. Because of 
time constraints and the nonexistence of statistical information, some 
offenses that occur infrequently are not considered in the guidelines. 
Their exclusion does not reflect any judgment regarding their 
seriousness and they will be addressed as the Commission refines the 
guidelines over time. '.

1992 Amendment

    Amendment 466 amended Subpart 4(b) in the first paragraph by 
inserting `Sec.  5H1.12 (Lack of Guidance as a Youth and Similar 
Circumstances)' after `Sec.  5H1.10 (Race, Sex, National Origin, Creed, 
Religion, and Socio-Economic Status)'.

1995 Amendment

    Amendment 534 amended Subpart 4(d) in the second sentence of the 
third paragraph by striking `six' and inserting `eight'; and in the 
third sentence of the third paragraph by striking ``seven through'' and 
inserting ``nine and''.

1996 Amendment

    Amendment 538 amended Subpart 4(b) in the fourth paragraph by 
striking the third sentence as follows:
    `Sec.  For example, the Commentary to `Sec.  2G1.1 (Transportation 
for the Purpose of Prostitution or Prohibited Sexual Conduct) 
recommends a downward departure of eight levels where a commercial 
purpose was not involved.'.

2000 Amendments

    Amendment 602 amended Subpart 4(b) in the fifth sentence of the 
first paragraph by striking `and' before `the last'; and by inserting, 
and `Sec.  5K2.19 (Post-Sentencing Rehabilitative Efforts)' after 
`(Coercion and Duress)'.
    Amendment 603 amended Subpart 4(d) by adding an asterisk at the end 
of the last paragraph after the period; and by adding at the end the 
following footnote:

    * Note: Although the Commission had not addressed `single acts 
of aberrant behavior' at the time the Introduction to the Guidelines 
Manual originally was written, it subsequently addressed the issue 
in Amendment 603, effective November 1, 2000. (See Supplement to 
Appendix C, Amendment 603.)'.''.

[[Page 60173]]

Part VIII: Miscellaneous Amendments

    The Commentary to 1B1.1 captioned ``Application Notes'' is amended 
by striking Note 1 in its entirety and inserting the following:
    ``1. The following are definitions of terms that are used 
frequently in the guidelines and are of general applicability (except 
to the extent expressly modified in respect to a particular guideline 
or policy statement):
    (A) `Abducted' means that a victim was forced to accompany an 
offender to a different location. For example, a bank robber's forcing 
a bank teller from the bank into a getaway car would constitute an 
abduction.
    (B) `Bodily injury' means any significant injury; e.g., an injury 
that is painful and obvious, or is of a type for which medical 
attention ordinarily would be sought.
    (C) `Brandished' with reference to a dangerous weapon (including a 
firearm) means that all or part of the weapon was displayed, or the 
presence of the weapon was otherwise made known to another person, in 
order to intimidate that person, regardless of whether the weapon was 
directly visible to that person. Accordingly, although the dangerous 
weapon does not have to be directly visible, the weapon must be 
present.
    (D) `Dangerous weapon' means (i) an instrument capable of 
inflicting death or serious bodily injury; or (ii) an object that is 
not an instrument capable of inflicting death or serious bodily injury 
but (I) closely resembles such an instrument; or (II) the defendant 
used the object in a manner that created the impression that the object 
was such an instrument (e.g. a defendant wrapped a hand in a towel 
during a bank robbery to create the appearance of a gun).
    (E) `Departure' means (i) for purposes other than those specified 
in subdivision (ii), imposition of a sentence outside the applicable 
guideline range or of a sentence that is otherwise different from the 
guideline sentence; and (iii) for purposes of 4A1.3 (Departures Based 
on Inadequacy of Criminal History Category), assignment of a criminal 
history category other than the otherwise applicable criminal history 
category, in order to effect a sentence outside the applicable 
guideline range. `Depart' means grant a departure.
    `Downward departure' means departure that effects a sentence less 
than a sentence that could be imposed under the applicable guideline 
range or a sentence that is otherwise less than the guideline sentence. 
`Depart downward' means grant a downward departure.
    `Upward departure' means departure that effects a sentence greater 
than a sentence that could be imposed under the applicable guideline 
range or a sentence that is otherwise greater than the guideline 
sentence. `Depart upward' means grant an upward departure.
    (F) `Destructive device' means any article described in 26 U.S.C. 
5845(f) (including an explosive, incendiary, or poison gas--(i) bomb, 
(ii) grenade, (iii) rocket having a propellant charge of more than four 
ounces, (iv) missile having an explosive or incendiary charge of more 
than one-quarter ounce, (v) mine, or (vi) device similar to any of the 
devices described in the preceding clauses).
    (G) `Firearm' means (i) any weapon (including a starter gun) which 
will or is designed to or may readily be converted to expel a 
projectile by the action of an explosive; (ii) the frame or receiver of 
any such weapon; (iii) any firearm muffler or silencer; or (iv) any 
destructive device. A weapon, commonly known as a `BB' or pellet gun, 
that uses air or carbon dioxide pressure to expel a projectile is a 
dangerous weapon but not a firearm.
    (H) `Offense' means the offense of conviction and all relevant 
conduct under Sec.  1B1.3 (Relevant Conduct) unless a different meaning 
is specified or is otherwise clear from the context. The term `instant' 
is used in connection with `offense,' `federal offense,' or `offense of 
conviction,' as the case may be, to distinguish the violation for which 
the defendant is being sentenced from a prior or subsequent offense, or 
from an offense before another court (e.g., an offense before a state 
court involving the same underlying conduct).
    (I) `Otherwise used' with reference to a dangerous weapon 
(including a firearm) means that the conduct did not amount to the 
discharge of a firearm but was more than brandishing, displaying, or 
possessing a firearm or other dangerous weapon.
    (J) `Permanent or life-threatening bodily injury' means injury 
involving a substantial risk of death; loss or substantial impairment 
of the function of a bodily member, organ, or mental faculty that is 
likely to be permanent; or an obvious disfigurement that is likely to 
be permanent. In the case of a kidnapping, for example, maltreatment to 
a life-threatening degree (e.g., by denial of food or medical care) 
would constitute life-threatening bodily injury.
    (K) `Physically restrained' means the forcible restraint of the 
victim such as by being tied, bound, or locked up.
    (L) `Serious bodily injury' means injury involving extreme physical 
pain or the protracted impairment of a function of a bodily member, 
organ, or mental faculty; or requiring medical intervention such as 
surgery, hospitalization, or physical rehabilitation. In addition, 
`serious bodily injury' is deemed to have occurred if the offense 
involved conduct constituting criminal sexual abuse under 18 U.S.C. 
2241 or 2242 or any similar offense under state law.''.
    Section 2A4.1(a) is amended to read as follows:
    ``(a) Base Offense Level: 32''.
    Section 2A4.1(b)(4) is amended by striking subdivision (C) in its 
entirety.
    Section 2A4.1(b)(5) is amended to read as follows:
    ``(5) If the victim was sexually exploited, increase by 6 
levels.''.
    The Commentary to 2A4.1 captioned ``Application Notes'' is amended 
by striking Note 3 in its entirety; and by redesignating Notes 4 and 5 
and Notes 3 and 4, respectively.
    Reason for Amendment: This emergency amendment continues the 
Commission's work in the area of departures and implements the 
directive in section 401(m) of the ``Prosecutorial Remedies and Other 
Tools to end the Exploitation of Children Today Act of 2003'' or 
``PROTECT Act,'' Public Law 108-21. The PROTECT Act was enacted on 
April 30, 2003, and directs the Commission, not later than 180 days 
after the enactment of the Act, to promulgate: (1) Appropriate 
amendments to the sentencing guidelines, policy statements, and 
official commentary to ensure that the incidence of downward departures 
is substantially reduced; (2) a policy statement authorizing a downward 
departure of not more than 4 levels if the Government files a motion 
for such departure pursuant to an early disposition program authorized 
by the Attorney General and the United States Attorney for the district 
in which the court resides ; (3) any other necessary conforming 
amendments, including a revision of paragraph 4(b) of Part A of Chapter 
One and a revision of Sec.  5K2.0 (Grounds for Departure). The analysis 
underlying this amendment will be set forth more fully in a forthcoming 
report to Congress.
    The Commission anticipates that this amendment will substantially 
reduce the incidence of downward departures by prohibiting several 
factors as grounds for departure, restricting the availability of 
certain departures, clarifying when certain departures are appropriate, 
and limiting the extent of departure permissible for certain offenders. 
The

[[Page 60174]]

amendment also reduces the incidence of downward departures generally 
by restructuring departure provisions throughout the Guidelines Manual 
to track more closely both the statutory criteria for imposing a 
sentence outside the guideline sentencing range and the newly enacted 
statutory requirement that reasons for departure be stated with 
specificity in the written order of judgment and commitment. See 18 
U.S.C. 3553 (Imposition of a sentence), 3742(e) (Review of a sentence). 
The Commission determined that requiring sentencing courts to document 
reasons for departure with greater specificity complements the findings 
required of sentencing courts by the PROTECT Act, increases the 
accountability of sentencing courts for departures by facilitating 
appellate review, and improves the Commission's ability to monitor 
departure decisions and refine the guidelines as necessary.
    The eight-part amendment makes modifications to Sec.  5K2.0 
(Grounds for Departure), Sec.  5H1.4 (Physical Condition, Including 
Drug or Alcohol Dependence or Abuse; Gambling Addiction), Sec.  5H1.6 
(Family Ties and Responsibilities), Sec.  5H1.7 (Role in the Offense), 
5H1.8 (Criminal History), Sec.  5K2.10 (Victim's Conduct), Sec.  5K2.12 
(Coercion and Duress), Sec.  5K2.13 (Diminished Capacity), Sec.  5K2.20 
(Aberrant Behavior), Sec.  4A1.3 (Departures Based on Inadequacy of 
Criminal History Category), and Sec.  6B1.2 (Standards for Acceptance 
of Plea Agreements). The amendment also creates one new policy 
statement, Sec.  5K3.1 (Early Disposition Programs), and one new 
guideline, Sec.  1A1.1 (Authority), among other changes.
    Part I of the amendment makes several significant modifications to 
Sec.  5K2.0 (Grounds for Departure) to limit, and in certain 
circumstances, to prohibit downward departures. The amendment generally 
restructures Sec.  5K2.0 to set forth more clearly the standards 
governing departures in order to facilitate and emphasize the analysis 
required of the court. The amendment does so by: (1) Integrating 
throughout the policy statement the statutory language of 18 U.S.C. 
3553(b) and 3742(e), as amended by the PROTECT Act, which provide the 
statutory criteria for sentencing outside the guideline range; (2) 
adopting, when provided in the policy statement, a uniform qualitative 
description of the type of case in which a departure may be warranted, 
the ``exceptional case''; (3) restating in the application notes and 
background commentary to Sec.  5K2.0 longstanding commentary in the 
Guidelines Manual, which was reaffirmed by the PROTECT Act, that the 
frequency of departures under Sec.  5K2.0 generally should be rare, and 
that certain types of departures under Sec.  5K2.0 should be extremely 
rare; and (4) deleting certain language in the commentary taken from 
Koon v. United States, 518 U.S. 81 (1996) that effectively was 
overruled by the PROTECT Act.
    Accordingly, Sec.  5K2.0(a) sets forth the general governing 
principle that, in cases other than child crimes and sexual offenses, 
the sentencing court may depart if the court finds pursuant to 18 
U.S.C. 3553(b)(1) that there exists an aggravating or mitigating 
circumstance of a kind, or to a degree, not adequately taken into 
consideration by the Sentencing Commission that, in order to advance 
the objectives set forth in 18 U.S.C. 3553(a)(2), should result in a 
sentence different from a sentence within the applicable guideline 
range.
    The amendment also prohibits several grounds for departure, in 
addition to the departure prohibitions in Sec.  5K2.0 for child crimes 
and sexual offenses enacted by the PROTECT Act, and other prohibitions 
elsewhere in the Guidelines Manual. The amendment creates a new 
subsection, Sec.  5K2.0(d), that clearly lists the forbidden departure 
grounds. These include several longstanding prohibitions, as well as a 
number of new prohibitions added by the amendment, specifically: (1) 
The defendant's acceptance of responsibility; (2) the defendant's 
aggravating or mitigating role in the offense; (3) the defendant's 
decision, in itself, to plead guilty to the offense or to enter into a 
plea agreement with respect to the offense; and (4) the defendant's 
fulfillment of restitution only to the extent required by law, 
including the guidelines. The Commission determined that these 
circumstances are never appropriate grounds for departure.
    The amendment also revises Sec.  5K2.0 to restrict the availability 
of departures based on multiple circumstances, often referred to as a 
``combination of factors.'' The Commission determined that heightened 
criteria are appropriate for cases in which no single offender 
characteristic or other circumstance independently is sufficient to 
provide a basis for departure. Under Sec.  5K2.0(c) a departure based 
on multiple circumstances can be based only on offender characteristics 
or other circumstances that are identified in the guidelines as 
permissible grounds for departure. Circumstances unmentioned in the 
guidelines, therefore, can no longer be used for a departure based on 
multiple circumstances pursuant to Sec.  5K2.0(c). In addition, in 
order to support a departure based on a combination of circumstances, 
each offender characteristic or other circumstance must be present 
individually to a substantial degree and must make the case exceptional 
when considered together. Emphasizing the Commission's expectation as 
to the infrequency of such departures, the accompanying application 
note retains previously existing guidance and states that departures 
under Sec.  5K2.0(c) based on a combination of not ordinarily relevant 
circumstances should occur extremely rarely.
    In addition, the amendment clarifies when a departure may be based 
on a circumstance present to a degree not adequately taken into 
consideration. Section 5K2.0(a)(3) provides that a departure may be 
warranted in an exceptional case, even though the circumstance that 
forms the basis for the departure is taken into consideration, only if 
the court determines that such circumstance is present to a degree 
substantially different from that ordinarily involved in that kind of 
offense.
    The amendment also modifies Sec.  5K2.0 in two additional ways to 
underscore the need for courts to state with specificity their reasons 
for departure. First, Sec.  5K2.0(e) provides that if the court 
departs, it shall state, pursuant to 18 U.S.C. 3553(c), as amended by 
the PROTECT Act, its specific reasons for departure in open court at 
the time of sentencing and, with limited exception in the case of 
statements received in camera, shall state those factors with 
specificity in the written judgment and commitment order. Second, 
Application Note 5 provides that in cases in which the court departs 
based on reasons set forth in a plea agreement, the court must state 
the reasons for departure with specificity in the written judgment and 
commitment order.
    Part II of the amendment limits several departure provisions in 
Chapter Five, Part H (Specific Offender Characteristics). First, the 
amendment adds a prohibition to Sec.  5H1.4 (Physical Condition, 
Including Drug or Alcohol Dependence or Abuse; Gambling Addiction) 
against departures based on addiction to gambling and renames the 
policy statement accordingly. The Commission determined that addiction 
to gambling is never a relevant ground for departure.
    Second, the amendment limits the availability of departures 
pursuant to Sec.  5H1.6 (Family Ties and Responsibilities) by requiring 
the court to conduct certain more rigorous analyses. In determining 
whether a departure is warranted under this policy

[[Page 60175]]

statement, a new application note instructs the court to consider the 
seriousness of the offense; the involvement in the offense, if any, of 
members of the defendant's family; and the danger, if any to members of 
the defendant's immediate family as a result of the offense.
    In addition to considering those factors, the amendment further 
restricts family ties departures by adding an application note that 
establishes heightened criteria for departures based on loss of 
caretaking or financial support. In such cases, the court must find all 
of the following four circumstances: (1) That a sentence within the 
applicable guideline range will cause a substantial, direct, and 
specific loss of essential caretaking or essential financial support to 
the defendant's family; (2) that such loss exceeds the harm ordinarily 
incident to incarceration; (3) that there are no effective remedial or 
ameliorative programs reasonably available, making the defendant's 
caretaking or financial support irreplaceable to the defendant's 
family; and (4) that the departure effectively will address the loss of 
caretaking or financial support. The Commission determined that these 
heightened criteria are appropriate and necessary in order to 
distinguish hardship or suffering that is ordinarily incident to 
incarceration from that which is exceptional.
    The amendment also eliminates community ties as a separate ground 
for departure and renames Sec.  5H1.6 accordingly.
    Third, the amendment makes conforming modifications to Sec.  5H1.7 
(Role in the Offense), reiterating that a defendant's role in the 
offense is not a basis for departure, and to Sec.  5H1.8 (Criminal 
History), providing that the only grounds for departure based on the 
defendant's criminal history are set forth in Sec.  4A1.3 (Departures 
Based on Inadequacy of Criminal History Category).
    Part III of the amendment limits several departure provisions in 
Chapter Five, Part K (Departures). First, the amendment adds a factor 
to Sec.  5K2.10 (Victim's Conduct) that the court should consider when 
determining whether a departure is warranted based on victim's conduct. 
The amendment provides that, in addition to five previously existing 
factors, the court should consider the proportionality and 
reasonableness of the defendant's response to the victim's provocation.
    Second, the amendment adds a similar factor to Sec.  5K2.12 
(Coercion and Duress). The amendment provides that the extent of a 
departure based on coercion and duress ordinarily should depend on 
several considerations, including the proportionality of the 
defendant's actions to the seriousness of the coercion, blackmail, or 
duress involved.
    Third, the amendment limits the availability of departures pursuant 
to Sec.  5K2.13 (Diminished Capacity) by adding a causation element. 
The amendment provides that in order to receive a departure for 
diminished capacity, the significantly reduced mental capacity must 
have contributed substantially to the commission of the offense. The 
amendment similarly limits the extent of departure by stating that the 
extent of the departure should reflect the extent to which the reduced 
mental capacity contributed to the commission of the offense.
    Fourth, the amendment significantly restructures Sec.  5K2.20 
(Aberrant Behavior) and further restricts the availability of 
departures based on aberrant behavior. The Commission promulgated Sec.  
5K2.20 effective November 1, 2000, in order to resolve a longstanding 
circuit conflict and more properly define when a departure based on 
aberrant behavior may be warranted. See Appendix C, amendment 603. A 
departure based on aberrant behavior may be warranted only if the 
defendant committed a single criminal occurrence or single criminal 
transaction that (1) was without significant planning; (2) was of 
limited duration; and (3) represents a marked deviation by the 
defendant from an otherwise law-abiding life.
    The amendment provides greater emphasis to these strict 
requirements by moving them from an application note to the body of the 
policy statement. The amendment also gives the court greater guidance 
in applying these requirements with a new application note that 
clarifies that repetitious or significant, planned behavior does not 
meet the requirements for receiving a departure under Sec.  5K2.20. A 
fraud scheme, for example, generally would be prohibited from receiving 
a departure pursuant to Sec.  5K2.20 because such a scheme usually 
involves repetitive acts, rather than a single occurrence or single 
criminal transaction, as well as significant planning.
    The amendment also further restricts the availability of departures 
based on aberrant behavior by adding several strict prohibitions to the 
list that has existed in Sec.  5K2.20 since its initial promulgation. 
Prior to this amendment, Sec.  5K2.20 prohibited the court from 
departing based on aberrant behavior if (1) The offense involved 
serious bodily injury or death; (2) the defendant discharged a firearm 
or otherwise used a firearm or a dangerous weapon; (3) the instant 
offense of conviction is a serious drug trafficking offense; (4) the 
defendant has more than one criminal history point, as determined under 
Chapter Four (Criminal History and Criminal Livelihood); or (5) the 
defendant has a prior federal, or state, felony conviction, regardless 
of whether the conviction is countable under Chapter Four.
    The amendment gives greater prominence to those previously existing 
prohibitions and expands them in significant ways. The amendment 
eliminates defendants who have any significant prior criminal behavior 
from consideration for a departure pursuant to Sec.  5K2.20, regardless 
of whether such behavior is countable under Chapter Four, and even if 
such behavior is not a state or federal felony. In addition, the 
amendment expands the class of drug trafficking defendants prohibited 
from consideration for a departure pursuant to Sec.  5K2.20 by 
expanding the definition of ``serious drug trafficking offense.'' 
Specifically, the amendment expands the definition of ``serious drug 
trafficking offense'' in the accompanying application note to include 
any controlled substance offense under title 21, United States Code, 
other than simple possession under 21 U.S.C. 844, that provides a 
mandatory minimum term of imprisonment of five years or greater, 
regardless of whether the defendant meets the criteria of Sec.  5C1.2 
(Limitation on Applicability of Statutory Mandatory Minimum Sentences 
in Certain Cases). Prior to this amendment, only drug trafficking 
defendants who were subject to such mandatory minimum penalties and who 
did not meet the criteria set forth in Sec.  5C1.2 were precluded 
categorically from consideration for a departure under Sec.  5K2.20.
    Part IV of the amendment substantially restructures Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category) to set 
forth more clearly the standards governing departures based on criminal 
history, to prohibit and limit the extent of departures based on 
criminal history for certain offenders with significant criminal 
history, and to require written specification of the basis for a 
criminal history departure.
    Section 4A1.3(a) provides that an upward departure may be warranted 
if reliable information indicates that the defendant's criminal history 
category substantially under-represents the seriousness of the 
defendant's criminal history or the likelihood that the defendant will 
commit other crimes.

[[Page 60176]]

Section 4A1.3(a) also more clearly sets forth previously existing 
guidance regarding determination of the extent of an upward departure 
based on criminal history. Similarly, Sec.  4A1.3(b) provides that a 
downward departure may be warranted if reliable information indicates 
that the defendant's criminal history category substantially over-
represents the seriousness of the defendant's criminal history or the 
likelihood that the defendant will commit other crimes.
    The amendment, however, adds several prohibitions and limitations 
to the availability of downward departures based on criminal history. 
It prohibits a downward departure based on Sec.  4A1.3(b) if the 
defendant is an armed career criminal within the meaning of Sec.  4B1.3 
(Armed Career Criminal) or a repeat and dangerous sex offender against 
minors within the meaning of Sec.  4B1.5 (Repeat and Dangerous Sex 
Offender Against Minors). The Commission determined that such offenders 
should never receive a criminal history-based downward departure.
    Section 4A1.3(b) reiterates the longstanding prohibition against a 
departure below the lower limit of the applicable guideline range for 
Criminal History Category I.
    Section 4A1.3(b) also contains certain limitations on the extent of 
departure available under this provision. Specifically, a downward 
departure pursuant to this section for a career offender within the 
meaning of Sec.  4B1.1 (Career Offender) may not exceed one criminal 
history category.
    In addition, the amendment provides that a defendant whose criminal 
history category is Category I after receipt of a downward departure 
under Sec.  4A1.3(b) does not meet the criterion of subsection (a)(1) 
of Sec.  5C1.2 if, before receipt of the departure, the defendant had 
more than one criminal history point under Sec.  4A1.1 (Criminal 
History Category). Thus, a departure to Category I cannot qualify an 
otherwise ineligible defendant for relief from an applicable mandatory 
minimum sentence under Sec.  5C1.2, which is consistent with case law.
    The amendment adds a new subsection, Sec.  4A1.3(c), that requires 
the court, in departing based on criminal history, to set forth in 
writing the specific reasons why the applicable criminal history 
category under-represents or over-represents the seriousness of the 
defendant's criminal history or the likelihood that the defendant will 
commit other crimes. This specificity requirement is consistent with 
the PROTECT Act and is intended to facilitate both the necessary 
statutory and guideline departure analysis, as well as to improve the 
Commission's ability to refine the criminal history guidelines in light 
of criminal history departure decisions.
    The amendment also makes conforming modifications to Sec.  4A1.1 
and Sec.  5C1.2.
    Part V of the amendment implements the directive at section 
401(m)(2)(B) of the PROTECT Act by adding a new policy statement at 
Sec.  5K3.1 entitled Early Disposition Programs. The provision restates 
the language contained in the directive and provides that, upon motion 
of the Government, the court may depart downward not more than 4 levels 
pursuant to an early disposition program authorized by the Attorney 
General of the United States and the United States Attorney for the 
district in which the court resides. The Commission determined that 
implementing the directive in this manner is appropriate at this time, 
pending further study and monitoring of the implementation of early 
disposition programs.
    Part VI of the amendment revises subsections (b) and (c) of Sec.  
6B1.2 (Standards for Acceptance of Plea Agreements) to require greater 
specificity in the sentencing documentation in a case involving a 
departure either recommended or agreed to in a Rule 11(c)(1)(B) or Rule 
11(c)(1)(C) plea agreement. Specifically, if the court accepts such a 
plea agreement, and the recommended or agreed to sentence departs from 
the applicable guideline range for justifiable reasons, the amendment 
requires the court to set forth specifically those reasons in writing 
in the statement of reasons or judgment and commitment order. This 
specificity requirement is consistent with the PROTECT Act and is 
intended to facilitate the necessary statutory and guideline departure 
analysis, as well as to improve the Commission's ability to understand 
the underlying reasons for departures in cases involving plea 
agreements.
    Part VII of the amendment creates a new guideline, 1A1.1 
(Authority), that clearly sets forth the Commission's authority to 
promulgate guidelines, policy statements, and commentary and implements 
the Protect Act directive requiring conforming amendments to paragraph 
4(b) of Part A of Chapter One. In addition, the amendment moves in toto 
Part A of Chapter One, as in effect on November 1, 1987, to the 
commentary as a historical note. Part A of Chapter One was an 
introduction to the Guidelines Manual that explained a number of policy 
decisions made by the Commission when it promulgated the initial set of 
guidelines. This introduction was amended occasionally between 1987 and 
2003. The Commission determined that in order to preserve its 
historical significance and context, the introduction should be 
returned to its original form and placed in a historical note. The 
Commission encourages review of this material. The amendment also 
incorporates relevant portions of paragraph 4(b) of Part A of the 
former introduction regarding departures in the background commentary 
to Sec.  5K2.0.
    Part VII of the amendment amends Sec.  1B1.1 (Application 
Instructions) to provide uniform definitions of departure, upward 
departure, and downward departure.
    The amendment also makes technical amendments to Sec.  2A4.1 
(Kidnapping, Abduction, Unlawful Restraint).
    This amendment complements other significant policy initiatives 
affecting sentencing, including the statutory changes in sentencing law 
and guideline changes directly made by the PROTECT Act, and recent 
policies implemented by the Department of Justice. The Commission 
believes that these general policy changes, working together, will 
substantially reduce the incidence of downward departures. In addition 
to the significant modifications made by this amendment, the Commission 
has identified several aspects of the guidelines affecting departures 
that it intends to continue studying during the current amendment cycle 
and beyond, including aberrant behavior, criminal history, immigration, 
early disposition, or ``fast track,'' programs, and collateral 
consequences, among others.

[FR Doc. 03-26404 Filed 10-20-03; 8:45 am]
BILLING CODE 2211-01-P