[Federal Register Volume 73, Number 84 (Wednesday, April 30, 2008)]
[Notices]
[Pages 23521-23522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9372]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of final action regarding amendments to a policy 
statement and commentary effective May 1, 2008.

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SUMMARY: The Sentencing Commission hereby gives notice of amendments to 
the commentary to Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) and to policy statement Sec.  
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range (Policy Statement)) made pursuant to its authority 
under 28 U.S.C. 994(a), (o), and (u).

DATES: The Commission has specified an effective date of May 1, 2008 
for the amendments set forth in this notice.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, Telephone: (202) 502-4590.

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).
    Unlike amendments made to sentencing guidelines, the Commission is 
not required to apply the procedures of section 553 of title 5, United 
States Code, to amendments to policy statements and commentary. See 28 
U.S.C. 994(x). To the extent practicable, the Commission endeavors to 
apply such procedures to amendments to policy statements and 
commentary. Because the Commission has identified a certain sentencing 
anomaly in which some offenders have not received the reduction 
intended by Amendment 706 and some offenders have received a greater 
reduction than intended by Amendment 706, see USSC, Guidelines Manual, 
Supplement to Appendix C, Amendment 706 (November 1, 2007), the 
Commission did not apply the provisions of section 553 of title 5, 
United States Code, to the promulgation of the amendments set forth in 
this notice.
    Additional information may be accessed through the Commission's Web 
site at www.ussc.gov.

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

Ricardo H. Hinojosa,
Chair.
    1. Amendment: The Commentary to Sec.  2D1.1 captioned ``Application 
Notes'' is amended in Note 10 by striking subdivision (D) in its 
entirety and inserting the following:

    ``(D) Determining Base Offense Level in Offenses Involving Cocaine 
Base and Other Controlled Substances.--
    (i) In General.--Except as provided in subdivision (ii), if the 
offense involves cocaine base (`crack') and one or more other 
controlled substance, determine the combined offense level as provided 
by subdivision (B) of this note, and reduce the combined offense level 
by 2 levels.
    (ii) Exceptions to 2-level Reduction.--The 2-level reduction 
provided in subdivision (i) shall not apply in a case in which:
    (I) the offense involved 4.5 kg or more, or less than 250 mg, of 
cocaine base; or
    (II) the 2-level reduction results in a combined offense level that 
is less than the combined offense level that would apply under 
subdivision (B) of this note if the offense involved only the other 
controlled substance(s) (i.e., the controlled substance(s) other than 
cocaine base).
    (iii) Examples.--
    (I) The case involves 20 gm of cocaine base, 1.5 kg of cocaine, and 
10 kg of marihuana. Under the Drug Equivalency Tables in subdivision 
(E) of this note, 20 gm of cocaine base converts to 400 kg of marihuana 
(20 gm x 20 kg = 400 kg), and 1.5 kg of cocaine converts to 300 kg of 
marihuana (1.5 kg x 200 gm = 300 kg), which, when added to the 10 kg of 
marihuana results in a combined equivalent quantity of 710 kg of 
marihuana. Under the Drug Quantity Table, 710 kg of marihuana 
corresponds to a combined offense level of 30, which is reduced by two 
levels to level 28. For the cocaine and marihuana, their combined 
equivalent quantity of 310 kg of marihuana corresponds to a combined 
offense level of 26 under the Drug Quantity Table. Because the combined 
offense level for all three drug types after the 2-level reduction is 
not less than the combined base offense level for the cocaine and 
marihuana, the combined offense level for all three drug types remains 
level 28.
    (II) The case involves 5 gm of cocaine base and 6 kg of heroin. 
Under the Drug Equivalency Tables in subdivision (E) of this note, 5 gm 
of cocaine base converts to 100 kg of marihuana (5 gm x 20 kg = 100 
kg), and 6 kg of heroin converts to 6,000 kg of marihuana (6,000 gm x 1 
kg = 6,000 kg), which, when added together results in a combined 
equivalent quantity of 6,100 kg of marihuana. Under the Drug Quantity 
Table, 6,100 kg of marihuana corresponds to a combined offense level of 
34, which is reduced by two levels to 32. For the heroin, the 6,000 kg 
of marihuana corresponds to an offense level 34 under the Drug Quantity 
Table. Because the combined offense level for the two drug types after 
the 2-level reduction is less than the offense level for the heroin, 
the reduction does not apply and the combined offense level for the two 
drugs remains level 34.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10, in subdivision (E), by inserting under the heading 
``Cocaine and Other Schedule I and II Stimulants (and their immediate 
precursors)*'' the following as the fifteenth entry:

    ``1 gm Cocaine Base (`Crack') = 20 kg of marihuana''.

    Reason for Amendment: This amendment modifies the commentary to 
Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy) to revise the manner in which 
combined offense levels are determined in cases involving cocaine base 
(``crack cocaine'') and one or more other controlled substance. 
Specifically, Application Note 10(D) has resulted in a certain 
sentencing anomaly in which some offenders have not received the 
benefit of the two-level reduction provided by Amendment 706 because of 
the conversion of cocaine base to its marihuana equivalent, and some 
offenders have received a reduction greater than intended. (See USSC, 
Guidelines Manual, Supplement to the

[[Page 23522]]

2007 Supplement to Appendix C, Amendment 706).
    In order to remedy this anomaly, this amendment modifies the Drug 
Equivalency Tables to provide that 1 gram of cocaine base equals 20 
kilograms of marihuana, as it did prior to Amendment 706, and amends 
Application Note 10(D) to provide that the combined offense level for 
an offense involving cocaine base and one or more other controlled 
substance is determined initially in the same manner as for other 
polydrug cases under Application Note 10(B). In order to effectuate the 
two-level reduction intended by Amendment 706, this amendment further 
provides that the resulting combined offense level is reduced by two 
levels. However, the amendment provides three exclusions to application 
of the two-level reduction. First, the two-level reduction does not 
apply if the offense involved 4.5 kilograms or more of cocaine base 
because the offense levels for such offenses were unaffected by 
Amendment 706. Second, the two-level reduction does not apply if the 
offense involved less than 250 milligrams of cocaine base in order to 
ensure that the offense level does not reduce below level 12, the 
minimum offense level in the Drug Quantity Table for offenses involving 
cocaine base. Third, the two-level reduction does not apply if it would 
result in a combined offense level that is less than the combined 
offense level that would apply if the offense involved only the other 
controlled substance(s) (i.e., the controlled substance(s) other than 
cocaine base). This third exclusion ensures that offenses involving 
controlled substances other than cocaine base do not receive a lower 
offense level than they otherwise would receive merely because cocaine 
base also is involved in the offense.
    2. Amendment: Section 1B1.10 is amended in subsection (c) by 
striking ``and''; and by inserting ``, and 715'' before the period.
    Reason for Amendment: This amendment expands the listing in Sec.  
1B1.10(c) (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range (Policy Statement)) to include Amendment 715 as an 
amendment that may be applied retroactively pursuant to 28 U.S.C. 
994(u). The Commission determined for the same reasons accompanying 
Amendment 713 that Amendment 715 also should be applied retroactively. 
(See USSC, Guidelines Manual, Supplement to the 2007 Supplement to 
Appendix C, Amendment 713).

 [FR Doc. E8-9372 Filed 4-29-08; 8:45 am]
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