[Federal Register Volume 73, Number 1 (Wednesday, January 2, 2008)]
[Notices]
[Pages 217-220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25483]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for the United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of final action regarding amendments to Policy Statement 
Sec.  1B1.10, effective March 3, 2008.

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SUMMARY: The Sentencing Commission hereby gives notice of amendments to 
a policy statement and commentary made pursuant to its authority under 
28 U.S.C. 994(a) and (u). The Commission promulgated an amendment to 
Policy Statement Sec.  1B1.10 (Reduction in Term of Imprisonment as a 
Result of Amended Guideline Range) clarifying when, and to what extent, 
a sentencing reduction is considered consistent with the policy 
statement and therefore authorized under 18 U.S.C. 3582(c)(2).
    The Commission also has reviewed amendments submitted to Congress 
on May 1, 2007, that may result in a lower guideline range and has 
designated Amendment 706, as amended by Amendment 711, for inclusion in 
Policy Statement Sec.  1B1.10 as an amendment that may be applied 
retroactively.

DATES: The effective date of these policy statement and commentary 
amendments is March 3, 2008.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information 
Officer, Telephone: (202) 502-4597.

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 specifies in 
what circumstances and by what amount sentences of imprisonment may be 
reduced if the Commission reduces the term of imprisonment recommended 
in the guidelines applicable to a particular offense or category of 
offenses pursuant to 28 U.S.C. 994(u).
    Additional information may be accessed through the Commission's Web 
site at http://www.ussc.gov.

    Authority: 28 U.S.C. 994(a), (u).

Ricardo H. Hinojosa,
Chair.

    1. Amendment: Chapter One, Part B, Subpart One, is amended by 
striking Sec.  1B1.10 and its accompanying commentary and inserting the 
following:
     ``Sec.  1B1.10. Reduction in Term of Imprisonment as a 
Result of Amended Guideline Range (Policy Statement)
    (a) Authority.--
    (1) In General.--In a case in which a defendant is serving a term 
of

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imprisonment, and the guideline range applicable to that defendant has 
subsequently been lowered as a result of an amendment to the Guidelines 
Manual listed in subsection (c) below, the court may reduce the 
defendant's term of imprisonment as provided by 18 U.S.C. 3582(c)(2). 
As required by 18 U.S.C. 3582(c)(2), any such reduction in the 
defendant's term of imprisonment shall be consistent with this policy 
statement.
    (2) Exclusions.--A reduction in the defendant's term of 
imprisonment is not consistent with this policy statement and therefore 
is not authorized under 18 U.S.C. 3582(c)(2) if--
    (A) None of the amendments listed in subsection (c) is applicable 
to the defendant; or
    (B) An amendment listed in subsection (c) does not have the effect 
of lowering the defendant's applicable guideline range.
    (3) Limitation.--Consistent with subsection (b), proceedings under 
18 U.S.C. 3582(c)(2) and this policy statement do not constitute a full 
resentencing of the defendant.
    (b) Determination of Reduction in Term of Imprisonment.--
    (1) In General.--In determining whether, and to what extent, a 
reduction in the defendant's term of imprisonment under 18 U.S.C. 
3582(c)(2) and this policy statement is warranted, the court shall 
determine the amended guideline range that would have been applicable 
to the defendant if the amendment(s) to the guidelines listed in 
subsection (c) had been in effect at the time the defendant was 
sentenced. In making such determination, the court shall substitute 
only the amendments listed in subsection (c) for the corresponding 
guideline provisions that were applied when the defendant was sentenced 
and shall leave all other guideline application decisions unaffected.
    (2) Limitations and Prohibition on Extent of Reduction.--
    (A) In General.--Except as provided in subdivision (B), the court 
shall not reduce the defendant's term of imprisonment under 18 U.S.C. 
3582(c)(2) and this policy statement to a term that is less than the 
minimum of the amended guideline range determined under subdivision (1) 
of this subsection.
    (B) Exception.--If the original term of imprisonment imposed was 
less than the term of imprisonment provided by the guideline range 
applicable to the defendant at the time of sentencing, a reduction 
comparably less than the amended guideline range determined under 
subdivision (1) of this subsection may be appropriate. However, if the 
original term of imprisonment constituted a non-guideline sentence 
determined pursuant to 18 U.S.C. 3553(a) and United States v. Booker, 
543 U.S. 220 (2005), a further reduction generally would not be 
appropriate.
    (C) Prohibition.--In no event may the reduced term of imprisonment 
be less than the term of imprisonment the defendant has already served.
    (c) Amendments covered by this policy statement are listed in 
Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371, 379, 
380, 433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591, 599, 606, 
657, and 702.

Commentary

    Application Notes:
    1. Application of Subsection (a).--
    (A) Eligibility.--Eligibility for consideration under 18 U.S.C. 
3582(c)(2) is triggered only by an amendment listed in subsection (c) 
that lowers the applicable guideline range. Accordingly, a reduction in 
the defendant's term of imprisonment is not authorized under 18 U.S.C. 
3582(c)(2) and is not consistent with this policy statement if: (i) 
None of the amendments listed in subsection (c) is applicable to the 
defendant; or (ii) an amendment listed in subsection (c) is applicable 
to the defendant but the amendment does not have the effect of lowering 
the defendant's applicable guideline range because of the operation of 
another guideline or statutory provision (e.g., a statutory mandatory 
minimum term of imprisonment).
    (B) Factors for Consideration.--
    (i) In General.--Consistent with 18 U.S.C. 3582(c)(2), the court 
shall consider the factors set forth in 18 U.S.C. 3553(a) in 
determining: (I) whether a reduction in the defendant's term of 
imprisonment is warranted; and (II) the extent of such reduction, but 
only within the limits described in subsection (b).
    (ii) Public Safety Consideration.--The court shall consider the 
nature and seriousness of the danger to any person or the community 
that may be posed by a reduction in the defendant's term of 
imprisonment in determining: (I) Whether such a reduction is warranted; 
and (II) the extent of such reduction, but only within the limits 
described in subsection (b).
    (iii) Post-Sentencing Conduct.--The court may consider post-
sentencing conduct of the defendant that occurred after imposition of 
the original term of imprisonment in determining: (I) Whether a 
reduction in the defendant's term of imprisonment is warranted; and 
(II) the extent of such reduction, but only within the limits described 
in subsection (b).
    2. Application of Subsection (b)(1).--In determining the amended 
guideline range under subsection (b)(1), the court shall substitute 
only the amendments listed in subsection (c) for the corresponding 
guideline provisions that were applied when the defendant was 
sentenced. All other guideline application decisions remain unaffected.
    3. Application of Subsection (b)(2).--Under subsection (b)(2), the 
amended guideline range determined under subsection (b)(1) and the term 
of imprisonment already served by the defendant limit the extent to 
which the court may reduce the defendant's term of imprisonment under 
18 U.S.C. 3582(c)(2) and this policy statement. Specifically, if the 
original term of imprisonment imposed was within the guideline range 
applicable to the defendant at the time of sentencing, the court shall 
not reduce the defendant's term of imprisonment to a term that is less 
than the minimum term of imprisonment provided by the amended guideline 
range determined under subsection (b)(1). For example, in a case in 
which: (A) The guideline range applicable to the defendant at the time 
of sentencing was 41 to 51 months; (B) the original term of 
imprisonment imposed was 41 months; and (C) the amended guideline range 
determined under subsection (b)(1) is 30 to 37 months, the court shall 
not reduce the defendant's term of imprisonment to a term less than 30 
months.
    If the original term of imprisonment imposed was less than the term 
of imprisonment provided by the guideline range applicable to the 
defendant at the time of sentencing, a reduction comparably less than 
the amended guideline range determined under subsection (b)(1) may be 
appropriate. For example, in a case in which: (A) The guideline range 
applicable to the defendant at the time of sentencing was 70 to 87 
months; (B) the defendant's original term of imprisonment imposed was 
56 months (representing a downward departure of 20 percent below the 
minimum term of imprisonment provided by the guideline range applicable 
to the defendant at the time of sentencing); and (C) the amended 
guideline range determined under subsection (b)(1) is 57 to 71 months, 
a reduction to a term of imprisonment of 46 months (representing a 
reduction of approximately 20 percent below the minimum term of 
imprisonment provided by the amended guideline range determined under 
subsection

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(b)(1)) would amount to a comparable reduction and may be appropriate.
    In no case, however, shall the term of imprisonment be reduced 
below time served. Subject to these limitations, the sentencing court 
has the discretion to determine whether, and to what extent, to reduce 
a term of imprisonment under this section.
    4. Supervised Release.--
    (A) Exclusion Relating to Revocation.--Only a term of imprisonment 
imposed as part of the original sentence is authorized to be reduced 
under this section. This section does not authorize a reduction in the 
term of imprisonment imposed upon revocation of supervised release.
    (B) Modification Relating to Early Termination.--If the prohibition 
in subsection (b)(2)(C) relating to time already served precludes a 
reduction in the term of imprisonment to the extent the court 
determines otherwise would have been appropriate as a result of the 
amended guideline range determined under subsection (b)(1), the court 
may consider any such reduction that it was unable to grant in 
connection with any motion for early termination of a term of 
supervised release under 18 U.S.C. 3583(e)(1). However, the fact that a 
defendant may have served a longer term of imprisonment than the court 
determines would have been appropriate in view of the amended guideline 
range determined under subsection (b)(1) shall not, without more, 
provide a basis for early termination of supervised release. Rather, 
the court should take into account the totality of circumstances 
relevant to a decision to terminate supervised release, including the 
term of supervised release that would have been appropriate in 
connection with a sentence under the amended guideline range determined 
under subsection (b)(1).
    Background: Section 3582(c)(2) of Title 18, United States Code, 
provides: `[I]n the case of a defendant who has been sentenced to a 
term of imprisonment based on a sentencing range that has subsequently 
been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), 
upon motion of the defendant or the Director of the Bureau of Prisons, 
or on its own motion, the court may reduce the term of imprisonment, 
after considering the factors set forth in section 3553(a) to the 
extent that they are applicable, if such a reduction is consistent with 
applicable policy statements issued by the Sentencing Commission.'
    This policy statement provides guidance and limitations for a court 
when considering a motion under 18 U.S.C. 3582(c)(2) and implements 28 
U.S.C. 994(u), which provides: `If the Commission reduces the term of 
imprisonment recommended in the guidelines applicable to a particular 
offense or category of offenses, it shall specify in what circumstances 
and by what amount the sentences of prisoners serving terms of 
imprisonment for the offense may be reduced.'
    Among the factors considered by the Commission in selecting the 
amendments included in subsection (c) were the purpose of the 
amendment, the magnitude of the change in the guideline range made by 
the amendment, and the difficulty of applying the amendment 
retroactively to determine an amended guideline range under subsection 
(b)(1).
    The listing of an amendment in subsection (c) reflects policy 
determinations by the Commission that a reduced guideline range is 
sufficient to achieve the purposes of sentencing and that, in the sound 
discretion of the court, a reduction in the term of imprisonment may be 
appropriate for previously sentenced, qualified defendants. The 
authorization of such a discretionary reduction does not otherwise 
affect the lawfulness of a previously imposed sentence, does not 
authorize a reduction in any other component of the sentence, and does 
not entitle a defendant to a reduced term of imprisonment as a matter 
of right.
    The Commission has not included in this policy statement amendments 
that generally reduce the maximum of the guideline range by less than 
six months. This criterion is in accord with the legislative history of 
28 U.S.C. 994(u) (formerly section 994(t)), which states: `It should be 
noted that the Committee does not expect that the Commission will 
recommend adjusting existing sentences under the provision when 
guidelines are simply refined in a way that might cause isolated 
instances of existing sentences falling above the old guidelines* or 
when there is only a minor downward adjustment in the guidelines. The 
Committee does not believe the courts should be burdened with 
adjustments in these cases.' S. Rep. 225, 98th Cong., 1st Sess. 180 
(1983).

    *So in original. Probably should be `to fall above the amended 
guidelines'.''.

    Reason for Amendment: This amendment makes a number of 
modifications to *1B1.10 (Reduction in Term of Imprisonment as a Result 
of Amended Guideline Range) to clarify when, and to what extent, a 
reduction in the defendant's term of imprisonment is consistent with 
the policy statement and is therefore authorized under 18 U.S.C. 
3582(c)(2).
    The amendment modifies subsection (a) to state the statutory 
requirement under 18 U.S.C. 3582(c)(2) that a reduction in the 
defendant's term of imprisonment be consistent with the policy 
statement. The amendment also modifies subsection (a) to state that, 
consistent with subsection (b), proceedings under 18 U.S.C. 3582(c)(2) 
do not constitute a full resentencing of the defendant.
    In addition, the amendment amends subsection (a) to clarify 
circumstances in which a reduction in the defendant's term of 
imprisonment is not consistent with the policy statement and therefore 
is not authorized under 18 U.S.C. 3582(c)(2). Specifically, the 
amendment provides that a reduction in the defendant's term of 
imprisonment is not consistent with Sec.  1B1.10 and therefore is not 
authorized under 18 U.S.C. 3582(c)(2) if (1) none of the amendments 
listed in subsection (c) is applicable to the defendant; or (2) an 
amendment listed in subsection (c) does not have the effect of lowering 
the defendant's applicable guideline range. Application Note 1 provides 
further explanation that an amendment may be listed in subsection (c) 
but not have the effect of lowering the defendant's applicable 
guideline range because of the operation of another guideline or 
statutory provision (e.g., a statutory mandatory minimum term of 
imprisonment). In such a case, a reduction in the defendant's term of 
imprisonment is not consistent with Sec.  1B1.10 and therefore is not 
authorized under 18 U.S.C. 3582(c)(2).
    The amendment modifies subsection (b) to clarify the limitations on 
the extent to which a court may reduce the defendant's term of 
imprisonment under 18 U.S.C. 582(c)(2) and Sec.  1B1.10. Specifically, 
in subsection (b)(1) the amendment provides that, in determining 
whether, and to what extent, a reduction in the defendant's term of 
imprisonment is warranted, the court shall determine the amended 
guideline range that would have been applicable to the defendant if the 
amendment(s) to the guidelines listed in subsection (c) had been in 
effect at the time the defendant was sentenced, substituting only the 
amendments listed in subsection (c) for the corresponding guideline 
provisions that were applied when the defendant was sentenced and 
leaving all other guideline application decisions unaffected.
    In subsection (b)(2) the amendment provides further clarification 
that the court shall not reduce the defendant's term of imprisonment to 
a term that is

[[Page 220]]

less than the minimum of the amended guideline range, except if the 
original term of imprisonment imposed was less than the term of 
imprisonment provided by the guideline range applicable to the 
defendant at the time of sentencing, a reduction comparably less than 
the amended guideline range may be appropriate. However, if the 
original term of imprisonment constituted a non-guideline sentence 
determined pursuant to 18 U.S.C. 3553(a) and United States v. Booker, 
543 U.S. 220 (2005), a further reduction generally would not be 
appropriate. The amendment clarifies that in no event may the reduced 
term of imprisonment be less than the term of imprisonment the 
defendant has already served. The amendment adds in Application Note 3 
examples illustrating the limitations on the extent to which a court 
may reduce a defendant's term of imprisonment under 18 U.S.C. 
3582(c)(2) and Sec.  1B1.10.
    The amendment also modifies Application Note 1 to delineate more 
clearly factors for consideration by the court in determining whether, 
and to what extent, a reduction in the defendant's term of imprisonment 
is warranted under 18 U.S.C. 3582(c)(2). Specifically, the amendment 
provides that the court shall consider the factors set forth in 18 
U.S.C. 3553(a), as required by 18 U.S.C. 3582(c)(2), and the nature and 
seriousness of the danger to any person or the community that may be 
posed by such a reduction, but only within the limits described in 
subsection (b). In addition, the amendment provides that the court may 
consider post-sentencing conduct of the defendant that occurred after 
imposition of the original term of imprisonment, but only within the 
limits described in subsection (b).
    The amendment makes conforming changes and adds headings to the 
application notes, and makes conforming changes to the background 
commentary.
    2. Amendment: Section 1B1.10, as amended by Amendment 1, is further 
amended in subsection (c) by inserting ``Covered Amendments.--'' before 
``Amendments''; by striking ``and 702''; and by inserting ``702, and 
706 as amended by 711'' before the period.
    Reason for Amendment: This amendment expands the listing in Sec.  
1B1.10(c) to implement the directive in 28 U.S.C. 994(u) with respect 
to guideline amendments that may be considered for retroactive 
application. The Commission has determined that Amendment 706, as 
amended by Amendment 711, should be applied retroactively because the 
applicable standards set forth in the background commentary to Sec.  
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range) appear to be met. Specifically: (1) As stated in the 
reason for amendment accompanying Amendment 706, the purpose of that 
amendment was to alleviate some of the urgent and compelling problems 
associated with the penalty structure for crack cocaine offenses; (2) 
the Commission's analysis of cases potentially eligible for retroactive 
application of Amendment 706 (available on the Commission's Web site at 
http://www.ussc.gov) indicates that the number of cases potentially 
involved is substantial, and the magnitude of the change in the 
guideline range, i.e., two levels, is not difficult to apply in 
individual cases; and (3) the Commission received persuasive written 
comment and testimony at its November 13, 2007 public hearing on 
retroactivity that the administrative burdens of applying Amendment 706 
retroactively are manageable. In addition, public safety will be 
considered in every case because Sec.  1B1.10, as amended by Amendment 
712, requires the court, in determining whether and to what extent a 
reduction in the defendant's term of imprisonment is warranted, to 
consider the nature and seriousness of the danger to any person or the 
community that may be posed by such a reduction.

[FR Doc. E7-25483 Filed 12-31-07; 8:45 am]
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