[Federal Register Volume 76, Number 85 (Tuesday, May 3, 2011)]
[Notices]
[Pages 24960-24974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10725]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of (1) submission to Congress of amendments to the 
sentencing guidelines effective November 1, 2011; and (2) request for 
comment.

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SUMMARY: The United States Sentencing Commission hereby gives notice of 
the following actions:
    (1) Pursuant to its authority under 28 U.S.C. 994(p), the 
Commission has promulgated amendments to the sentencing guidelines, 
policy statements, commentary, and statutory index. This notice sets 
forth the amendments and the reason for each amendment.
    (2) Amendment 2, pertaining to drug offenses, has the effect of 
lowering guideline ranges. The Commission requests comment regarding 
whether that amendment should be included in subsection (c) of Sec.  
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range (Policy Statement)) as an amendment that may be applied 
retroactively to previously sentenced defendants. This notice sets 
forth the request for comment.

DATES: The Commission has specified an effective date of November 1, 
2011, for the amendments set forth in this notice. Public comment 
regarding whether Amendment 2, pertaining to drug offenses, should be 
included as an amendment that may be applied retroactively to 
previously sentenced defendants should be received on or before June 2, 
2011.

ADDRESSES: Comments should be sent to: United States Sentencing 
Commission, One Columbus Circle, NE., Suite 2-500, South Lobby, 
Washington, DC 20002-8002, Attention: Public Affairs--Retroactivity 
Public Comment.

FOR FURTHER INFORMATION CONTACT: Jeanne Doherty, Office of Legislative 
and Public Affairs, 202-502-4502. The amendments and the request for 
comment set forth in this notice also may be accessed through the 
Commission's Web site at http://www.ussc.gov.

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).
    (1) Submission to Congress of Amendments to the Sentencing 
Guidelines
    Notice of proposed amendments was published in the Federal Register 
on January 19, 2011 (see 76 FR 3193-02). The Commission held public 
hearings on the proposed amendments in Washington, DC, on February 16, 
2011, and March 17, 2011. On April 28, 2011, the Commission submitted 
these amendments to Congress and specified an effective date of 
November 1, 2011.
    (2) Request for Comment on Amendment 2, Pertaining to Drug Offenses
    Section 3582(c)(2) of title 18, United States Code, provides that 
``in 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.''
    The Commission lists in Sec.  1B1.10(c) the specific guideline 
amendments that the court may apply retroactively under 18 U.S.C. 
3582(c)(2). The background commentary to Sec.  1B1.10 lists 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 Sec.  
1B1.10(b) as among the factors the Commission considers in selecting 
the amendments included in Sec.  1B1.10(c). To the extent practicable, 
public comment should address each of these factors.

    Authority:  28 U.S.C. Sec.  994(a), (o), (p), and (u); USSC 
Rules of Practice and Procedure 4.1, 4.3.

Patti B. Saris,
Chair.

(1) Submission to Congress of Amendments to the Sentencing Guidelines

    1. Amendment: Section 2B1.1(b) is amended by redesignating 
subdivisions (8) through (17) as subdivisions (9) through (18); and by 
inserting after subdivision (7) the following:
    ``(8) If (A) the defendant was convicted of a Federal health care 
offense involving a Government health care program; and (B) the loss 
under subsection (b)(1) to the Government health care program was (i) 
more than $1,000,000, increase by 2 levels; (ii) more than $7,000,000, 
increase by 3 levels; or (iii) more than $20,000,000, increase by 4 
levels.''.
    Section 2B1.1(b) is amended in subdivision (15), as redesignated by 
this amendment, by striking ``(14)'' and inserting ``(15)''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting after the paragraph that begins `` 
`Equity securities' '' the following:
    `` `Federal health care offense' has the meaning given that term in 
18 U.S.C. 24.''; and by inserting after the

[[Page 24961]]

paragraph that begins `` `Foreign instrumentality' '' the following:
    `` `Government health care program' means any plan or program that 
provides health benefits, whether directly, through insurance, or 
otherwise, which is funded directly, in whole or in part, by federal or 
state government. Examples of such programs are the Medicare program, 
the Medicaid program, and the CHIP program.''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3(F) by adding at the end the following:
    ``(viii) Federal Health Care Offenses Involving Government Health 
Care Programs. In a case in which the defendant is convicted of a 
Federal health care offense involving a Government health care program, 
the aggregate dollar amount of fraudulent bills submitted to the 
Government health care program shall constitute prima facie evidence of 
the amount of the intended loss, i.e., is evidence sufficient to 
establish the amount of the intended loss, if not rebutted.''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 7 by striking ``(8)'' and inserting ``(9)'' each place 
it appears;
    In Note 8 by striking ``(9)'' and inserting ``(10)'' each place it 
appears;
    In Note 9 by striking ``(10)'' and inserting ``(11)'' each place it 
appears;
    In Note 10 by striking ``(12)'' and inserting ``(13)'' in both 
places;
    In Note 11 and Note 12 by striking ``(14)'' and inserting ``(15)'' 
each place it appears;
    In Note 13 by striking ``(16)'' and inserting ``(17)'' each place 
it appears and by striking ``(14)'' and inserting ``(15)'' in both 
places;
    In Note 14 by striking ``(b)(17)'' and inserting ``(b)(18)'' each 
place it appears;
    In Note 19 by striking ``(16)'' and inserting ``(17)'' and by 
striking ``(11)'' and inserting ``(12)''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
by inserting after the paragraph that begins ``Subsection (b)(6)'' the 
following:
    ``Subsection (b)(8) implements the directive to the Commission in 
section 10606 of Public Law 111-148.''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
in the paragraph that begins ``Subsection (b)(8)(D)'' by striking 
``(8)'' and inserting ``(9)'';
    In the paragraph that begins ``Subsection (b)(9)'' by striking 
``(9)'' and inserting ``(10)'';
    In the paragraph that begins ``Subsections (b)(10)(A)(i)'' by 
striking ``(10)'' and inserting ``(11)'';
    In the paragraph that begins ``Subsection (b)(10)(C)'' by striking 
``(10)'' and inserting ``(11)'';
    In the paragraph that begins ``Subsection (b)(11)'' by striking 
``(11)'' and inserting ``(12)'';
    In the paragraph that begins ``Subsection (b)(13)(B)'' by striking 
``(13)'' and inserting ``(14)'';
    In the paragraph that begins ``Subsection (b)(14)(A)'' by striking 
``(14)'' and inserting ``(15)'';
    In the paragraph that begins ``Subsection (b)(14)(B)(i)'' by 
striking ``(14)'' and inserting ``(15)'';
    In the paragraph that begins ``Subsection (b)(15)'' by striking 
``(15)'' and inserting ``(16)''; and
    In the paragraph that begins ``Subsection (b)(16)'' by striking 
``(16)'' and inserting ``(17)'' in both places.
    The Commentary to Sec.  3B1.2 captioned ``Application Notes'' is 
amended in Note 3(A) by adding at the end the following:
    ``Likewise, a defendant who is accountable under Sec.  1B1.3 for a 
loss amount under Sec.  2B1.1 (Theft, Property Destruction, and Fraud) 
that greatly exceeds the defendant's personal gain from a fraud offense 
and who had limited knowledge of the scope of the scheme is not 
precluded from consideration for an adjustment under this guideline. 
For example, a defendant in a health care fraud scheme, whose role in 
the scheme was limited to serving as a nominee owner and who received 
little personal gain relative to the loss amount, is not precluded from 
consideration for an adjustment under this guideline.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 12 U.S.C. 4641 the following:
    ``12 U.S.C. 5382 2H3.1'';
    By inserting after the in the line referenced to 15 U.S.C. 78u(c) 
the following:
    ``15 U.S.C. 78jjj(c)(1),(2) 2B1.1
    15 U.S.C. 78jjj(d) 2B1.1'';
    In the line referenced to 29 U.S.C. 1131 by inserting ``(a)'' after 
``1131''; and
    By inserting after the line referenced to 29 U.S.C. Sec.  1141 the 
following:
    ``29 U.S.C. 1149 2B1.1''.
    Reason for Amendment: This amendment responds to the directive in 
section 10606(a)(2) of the Patient Protection and Affordable Care Act 
of 2010, Public Law 111-148 (the ``Patient Protection Act''), and 
addresses certain new offenses created by the Patient Protection Act 
and by the Dodd-Frank Wall Street and Consumer Protection Act, Public 
Law 111-203 (the ``Dodd-Frank Act'').

Response to Directive

    Section 10606(a)(2)(B) of the Patient Protection Act directed the 
Commission to--

amend the Federal Sentencing Guidelines and policy statements 
applicable to persons convicted of Federal health care offenses 
involving Government health care programs to provide that the 
aggregate dollar amount of fraudulent bills submitted to the 
Government health care program shall constitute prima facie evidence 
of the amount of the intended loss by the defendant[.]

    Section 10606(a)(2)(C) directed the Commission to amend the 
guidelines to provide--

    (i) a 2-level increase in the offense level for any defendant 
convicted of a Federal health care offense relating to a Government 
health care program which involves a loss of not less than 
$1,000,000 and less than $7,000,000;
    (ii) a 3-level increase in the offense level for any defendant 
convicted of a Federal health care offense relating to a Government 
health care program which involves a loss of not less than 
$7,000,000 and less than $20,000,000;
    (iii) a 4-level increase in the offense level for any defendant 
convicted of a Federal health care offense relating to a Government 
health care program which involves a loss of not less than 
$20,000,000; and
    (iv) if appropriate, otherwise amend the Federal Sentencing 
Guidelines and policy statements applicable to persons convicted of 
Federal health care offenses involving Government health care 
programs.

    Section 10606(a)(3) required the Commission, in carrying out the 
directive, to ``ensure reasonable consistency with other relevant 
directives and with other guidelines'' and to ``account for any 
aggravating or mitigating circumstances that might justify 
exceptions,'' among other requirements.
    The amendment implements the directive by adding two provisions to 
Sec.  2B1.1 (Theft, Property Destruction, and Fraud), both of which 
apply to cases in which ``the defendant was convicted of a Federal 
health care offense involving a Government health care program''.
    The first provision is a new tiered enhancement at subsection 
(b)(8) that applies in such cases (i.e., Federal health care offenses 
involving a Government health care program) if the loss is more than 
$1,000,000. The enhancement is 2 levels if the loss is more than 
$1,000,000, 3 levels if the loss is more than $7,000,000, and 4 levels 
if the loss is more than $20,000,000. The tiers of the enhancement 
apply to loss amounts ``more than'' the specified dollar amounts rather 
than to loss amounts ``not less than'' the specified dollar amounts to 
``ensure reasonable consistency'' as required by the directive. The 
consistent practice in the

[[Page 24962]]

Guidelines Manual is to apply enhancements to loss amounts ``more 
than'' specified dollar amounts.
    The second provision is a new special rule in Application Note 3(F) 
for determining intended loss in a case in which the defendant is 
convicted of a Federal health care offense involving a Government 
health care program. The special rule provides that, in such a case, 
``the aggregate dollar amount of fraudulent bills submitted to the 
Government health care program shall constitute prima facie evidence of 
the amount of the intended loss, i.e., is evidence sufficient to 
establish the amount of the intended loss, if not rebutted''. The 
special rule includes language making clear that the government's proof 
of intended loss may be rebutted by the defendant.
    The amendment also adds definitions to the commentary in Sec.  
2B1.1 for the terms ``Federal health care offense'' and ``Government 
health care program''. ``Federal health care offense'' is defined to 
have the meaning given that term in 18 U.S.C. 24, as required by 
section 10606(a)(1) of the Patient Protection Act. ``Government health 
care program'' is defined to mean ``any plan or program that provides 
health benefits, whether directly, through insurance, or otherwise, 
which is funded directly, in whole or in part, by federal or state 
government.'' The amendment lists the Medicare program, the Medicaid 
program, and the CHIP program as examples of such programs. The 
Commission adopted this definition because health care fraud involving 
federally funded programs and health care fraud involving state-funded 
programs are similar offenses, committed in similar ways and posing 
similar harms to the taxpaying public. In addition, defining 
``Government health care program'' in this manner avoids application 
difficulties likely to arise from a narrower definition that would 
require the disaggregation of losses program by program in cases in 
which the defendant defrauded both federal and state health care 
programs. Finally, the statutory language in the directive indicates 
congressional concern with health care fraud that adversely affects the 
public fisc beyond health care programs funded solely with federal 
funds.
    Finally, the amendment amends Application Note 3(A) to Sec.  3B1.2 
(Mitigating Role) to make clear that a defendant who is accountable 
under Sec.  1B1.3 (Relevant Conduct) for a loss amount under Sec.  
2B1.1 that greatly exceeds the defendant's personal gain from a fraud 
offense, and who had limited knowledge of the scope of the scheme, is 
not precluded from consideration for a mitigating role adjustment. The 
amended commentary provides as an example ``a defendant in a health 
care fraud scheme, whose role in the scheme was limited to serving as a 
nominee owner and who received little personal gain relative to the 
loss amount''. This part of the amendment is consistent with the 
directive in section 10606(a)(3)(D) of the Patient Protection Act that 
the Commission should ``account for any aggravating or mitigating 
circumstances that might justify exceptions'' to the new tiered 
enhancement.

New Offenses

    In addition to responding to the directives, the amendment amends 
Appendix A (Statutory Index) to include offenses created by both the 
Patient Protection Act and the Dodd-Frank Act.
    The Patient Protection Act created a new offense at 29 U.S.C. 1149 
that prohibits making a false statement in connection with the 
marketing or sale of a multiple employer welfare arrangement under the 
Employee Retirement Income Security Act. Pursuant to 29 U.S.C. Sec.  
1131(b), a person who commits this new offense is subject to a term of 
imprisonment of not more than 10 years. The amendment references the 
new offense at 29 U.S.C. 1149 to 2B1.1 because the offense has fraud or 
misrepresentation as a element of the offense. As a clerical change, 
the amendment also amends Appendix A (Statutory Index) to make clear 
that 29 U.S.C. 1131(a), not the new Sec.  1131(b), is referenced to 
Sec.  2E5.3 (False Statements and Concealment of Facts in Relation to 
Documents Required by the Employee Retirement Income Security Act; 
Failure to Maintain and Falsification of Records Required by the Labor 
Management Reporting and Disclosure Act; Destruction and Failure to 
Maintain Corporate Audit Records).
    The Dodd-Frank Act created two new offenses, 12 U.S.C. 5382 and 15 
U.S.C. 78jjj(d). With regard to 12 U.S.C. 5382, under authority granted 
by sections 202-203 of the Dodd-Frank Act, the Secretary of the 
Treasury may make a ``systemic risk determination'' concerning a 
financial company and, if the company fails the determination, may 
commence the orderly liquidation of the company by appointing the 
Federal Deposit Insurance Corporation as receiver. Before making the 
appointment, the Secretary must either obtain the consent of the 
company or petition under seal for approval by a federal district 
court. The Dodd-Frank Act makes it a crime, codified at 12 U.S.C. 5382, 
to recklessly disclose a systemic risk determination or the pendency of 
court proceedings on such a petition. A person who violates 12 U.S.C. 
5382 is subject to imprisonment for not more than five years. The 
amendment references 12 U.S.C. 5382 to 2H3.1 (Interception of 
Communications; Eavesdropping; Disclosure of Certain Private or 
Protected Information). Section 2H3.1 covers several criminal statutes 
with similar elements and the same maximum term of imprisonment.
    The second new offense, 15 U.S.C. 78jjj(d), makes it a crime for a 
person to falsely represent that he or she is a member of the Security 
Investor Protection Corporation or that any person or account is 
protected or eligible for protection under the Security Investor 
Protection Act. See Dodd-Frank Act, Public Law 111-203, Sec.  929V. 
Section 78jjj also contains two other offenses, at subsections (c)(1) 
and (c)(2), that are not referenced in Appendix A (Statutory Index). 
All three subsections are subject to the same maximum term of 
imprisonment of five years. In addition, all three concern fraud and 
deceit: the newly created 15 U.S.C. 78jjj(d) involves false 
representation; 15 U.S.C. 78jjj(c)(1) involves fraud in connection with 
or in contemplation of a liquidation proceeding; and 15 U.S.C. 
78jjj(c)(2) involves fraudulent conversion of assets of the Security 
Investor Protection Corporation. The amendment references these 
offenses to Sec.  2B1.1 because the elements of the offenses involve 
fraud and deceit.
    2. Amendment: Sections 2D1.1, 2D1.14, 2D2.1, 2K2.4, 3B1.4, and 
3C1.1, effective November 1, 2010 (see Appendix C, Amendment 748), as 
set forth in Supplement to the 2010 Guidelines Manual (effective 
November 1, 2010); see also 75 FR 66188 (October 27, 2010), are 
repromulgated as follows:
Part A
    The Drug Quantity Table in Sec.  2D1.1(c) and Note 10 of the 
Commentary to Sec.  2D1.1 captioned ``Application Notes'' are 
repromulgated without change.
Part B
    All provisions of Sec.  2D1.1 not repromulgated by Part A of this 
amendment are repromulgated without change, except as follows:
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by striking Note 28 as follows:
    ``28. Application of Subsection (b)(12).--Subsection (b)(12) 
applies to a defendant who knowingly maintains a premises (i.e., a 
`building, room, or enclosure,' see '2D1.8, comment. (backg'd.)) for 
the purpose of

[[Page 24963]]

manufacturing or distributing a controlled substance.
    Among the factors the court should consider in determining whether 
the defendant `maintained' the premises are (A) whether the defendant 
held a possessory interest in (e.g., owned or rented) the premises and 
(B) the extent to which the defendant controlled access to, or 
activities at, the premises.
    Manufacturing or distributing a controlled substance need not be 
the sole purpose for which the premises was maintained, but must be one 
of the defendant's primary or principal uses for the premises, rather 
than one of the defendant's incidental or collateral uses for the 
premises. In making this determination, the court should consider how 
frequently the premises was used by the defendant for manufacturing or 
distributing a controlled substance and how frequently the premises was 
used by the defendant for lawful purposes.'',

and inserting a new Note 28 as follows:

    ``28. Application of Subsection (b)(12).--Subsection (b)(12) 
applies to a defendant who knowingly maintains a premises (i.e., a 
building, room, or enclosure) for the purpose of manufacturing or 
distributing a controlled substance, including storage of a controlled 
substance for the purpose of distribution.
    Among the factors the court should consider in determining whether 
the defendant `maintained' the premises are (A) whether the defendant 
held a possessory interest in (e.g., owned or rented) the premises and 
(B) the extent to which the defendant controlled access to, or 
activities at, the premises.
    Manufacturing or distributing a controlled substance need not be 
the sole purpose for which the premises was maintained, but must be one 
of the defendant's primary or principal uses for the premises, rather 
than one of the defendant's incidental or collateral uses for the 
premises. In making this determination, the court should consider how 
frequently the premises was used by the defendant for manufacturing or 
distributing a controlled substance and how frequently the premises was 
used by the defendant for lawful purposes.''.
    Sections 2D1.14, 2K2.4, 3B1.4, and 3C1.1 are repromulgated without 
change.
Part C
    Section 2D2.1 is repromulgated without change.
    Reason for Amendment: This multi-part amendment re-promulgates as 
permanent the temporary, emergency amendment (effective Nov. 1, 2010) 
that implemented the emergency directive in section 8 of the Fair 
Sentencing Act of 2010, Public Law 111-220 (the ``Act''). The Act 
reduced the statutory penalties for cocaine base (``crack cocaine'') 
offenses, eliminated the statutory mandatory minimum sentence for 
simple possession of crack cocaine, and contained directives to the 
Commission to review and amend the guidelines to account for specified 
aggravating and mitigating circumstances in certain drug cases.
    The emergency amendment authority provided in section 8 of the Act 
required the Commission to promulgate the guidelines, policy 
statements, or amendments provided for in the Act, and to make such 
conforming changes to the guidelines as the Commission determines 
necessary to achieve consistency with other guideline provisions and 
applicable law, not later than 90 days after the date of enactment of 
the Act. Pursuant to this emergency directive, the Commission 
promulgated an amendment effective November 1, 2010, that made 
temporary, emergency revisions to Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) and Sec.  2D2.1 
(Unlawful Possession; Attempt or Conspiracy). Conforming changes to 
certain other guidelines were also promulgated on a temporary, 
emergency basis. See USSG App. C, Amendment 748 (effective November 1, 
2010).
    This amendment re-promulgates the temporary, emergency amendment. 
Part A re-promulgates the revisions to the crack cocaine quantity 
levels in the Drug Quantity Table in Sec.  2D1.1 without change. Part B 
re-promulgates the various aggravating and mitigating provisions in 
Sec.  2D1.1 without change, except for a revision to the new 
Application Note 28 (relating to the new enhancement for maintaining 
premises). Part C re-promulgates the revision to Sec.  2D2.1 accounting 
for the reduction in the statutory penalties for simple possession of 
crack cocaine without change.
Part A. Changes to the Drug Quantity Table for Offenses Involving Crack 
Cocaine
    Part A re-promulgates without change the emergency, temporary 
revisions to the Drug Quantity Table in Sec.  2D1.1 and related 
revisions to Application Note 10 to account for the changes in the 
statutory penalties made in section 2 of the Act. Section 2 of the Act 
reduced the statutory penalties for offenses involving manufacturing or 
trafficking in crack cocaine by increasing the quantity thresholds 
required to trigger a mandatory minimum term of imprisonment. The 
quantity threshold required to trigger the 5-year mandatory minimum 
term of imprisonment was increased from 5 grams to 28 grams, and the 
quantity threshold required to trigger the 10-year mandatory minimum 
term of imprisonment was increased from 50 grams to 280 grams. See 21 
U.S.C. 841(b)(1)(A), (B), (C), 960(b)(1), (2), (3). The new mandatory 
minimum quantity threshold levels for crack cocaine offenses are 
consistent with the Commission's 2007 report to Congress, Cocaine and 
Federal Sentencing Policy, in which the Commission, based on available 
information, defined crack cocaine offenders who deal in quantities of 
one ounce (approximately 28 grams) or more in a single transaction as 
wholesalers.
    To account for these statutory changes, the amendment conforms the 
guideline penalty structure for crack cocaine offenses to the approach 
followed for other drugs, i.e., the base offense levels for crack 
cocaine are set in the Drug Quantity Table so that the statutory 
minimum penalties correspond to levels 26 and 32, which was the 
approach used for crack cocaine offenses prior to November 1, 2007. See 
Sec.  2D1.1, comment. (backg'd.); USSG App. C, Amendment 706 (effective 
November 1, 2007). Accordingly, using the new drug quantities 
established by the Act, offenses involving 28 grams or more of crack 
cocaine are assigned a base offense level of 26, offenses involving 280 
grams or more of crack cocaine are assigned a base offense level of 32, 
and other offense levels are established by extrapolating 
proportionally upward and downward on the Drug Quantity Table. 
Conforming the guideline penalty structure for crack cocaine offenses 
to the approach followed for all other drugs ensures that the quantity-
based relationship established by statute between crack cocaine 
offenses and offenses involving all other drugs is consistently and 
proportionally reflected throughout the Drug Quantity Table at all drug 
quantities.
    Estimating the likely future sentencing impact of the amendment to 
the Drug Quantity Table is difficult because the reductions in the 
statutory penalties for crack cocaine offenses may result in changes in 
prosecutorial and other practices. With that important caveat, the 
Commission estimates that approximately 63 percent of crack cocaine 
offenders sentenced after November 1, 2011, will receive a lower 
sentence as a result of the change to the

[[Page 24964]]

Drug Quantity Table, with an average sentence decrease of approximately 
26 percent. For example, under the Drug Quantity Table in effect from 
November 1, 2007 through October 31, 2010, an offense involving 5 grams 
of crack cocaine was assigned a base offense level of 24, which 
corresponds to a guideline sentencing range of 51 to 63 months. Under 
the Drug Quantity Table as amended, 5 grams of crack cocaine is 
assigned a base offense level of 16, which corresponds to a guideline 
sentencing range of 21 to 27 months. Similarly, under the Drug Quantity 
Table in effect from November 1, 2007 through October 31, 2010, an 
offense involving 50 grams of crack cocaine was assigned a base offense 
level of 30, which corresponds to a guideline sentencing range of 97 to 
121 months. Under the Drug Quantity Table as amended, 50 grams of crack 
cocaine is assigned a base offense level of 26, which corresponds to a 
guideline sentencing range of 63 to 78 months.
    It is important to note that no crack cocaine offender will receive 
an increased sentence as a result of the amendment to the Drug Quantity 
Table. As indicated above, not all crack cocaine offenders sentenced 
after November 1, 2011, will receive a lower sentence as a result of 
the change to the Drug Quantity Table. This is the case for a variety 
of reasons. Among the reasons, compared to the Drug Quantity Table in 
effect from November 1, 2007 through October 31, 2010, the amendment 
does not lower the base offense levels, and therefore does not lower 
the sentences, for offenses involving the following quantities of crack 
cocaine: less than 500 milligrams; at least 28 grams but less than 35 
grams; at least 280 grams but less than 500 grams; at least 840 grams 
but less than 1.5 kilograms; at least 2.8 kilograms but less than 4.5 
kilograms; and 8.5 kilograms or more. In addition, some offenders are 
sentenced at the statutory mandatory minimum and therefore cannot have 
their sentences lowered by an amendment to the guidelines. See Sec.  
5G1.1(b) (Sentencing on a Single Count of Conviction). Other offenders 
are sentenced pursuant to Sec. Sec.  4B1.1 (Career Offender) and 4B1.4 
(Armed Career Criminal), which result in sentencing guideline ranges 
that are unaffected by a reduction in the Drug Quantity Table.
    To provide a means of obtaining a single offense level in cases 
involving crack cocaine and one or more other controlled substances, 
the amendment also establishes a marihuana equivalency for crack 
cocaine under which 1 gram of crack cocaine is equivalent to 3,571 
grams of marihuana. (The marihuana equivalency for any controlled 
substance is a constant that can be calculated using any threshold in 
the Drug Quantity Table by dividing the amount of marihuana 
corresponding to that threshold by the amount of the other controlled 
substance corresponding to that threshold. For example, the threshold 
quantities at base offense level 26 are 100,000 grams of marihuana and 
28 grams of crack cocaine; 100,000 grams divided by 28 is 3,571 grams.) 
In the commentary to Sec.  2D1.1, the amendment makes a conforming 
change to the rules for cases involving both crack cocaine and one or 
more other controlled substances. The amendment deletes the special 
rules in Note 10(D) for cases involving crack cocaine and one or more 
other controlled substances, and revises Note 10(C) so that it provides 
an example of such a case.
Part B. Aggravating and Mitigating Factors in Drug Trafficking Cases
    Part B re-promulgates the temporary, emergency revisions to Sec.  
2D1.1 and accompanying commentary that account for certain aggravating 
and mitigating factors in drug trafficking cases. These changes 
implement directives to the Commission in sections 5, 6, and 7 of the 
Act. The emergency revisions are re-promulgated without change, except 
for the new Application Note 28 (relating to the new enhancement for 
maintaining a premises), as explained below.
    First, Part B amends Sec.  2D1.1 to add a sentence at the end of 
subsection (a)(5) (often referred to as the ``mitigating role cap''). 
The new provision provides that if the offense level otherwise 
resulting from subsection (a)(5) is greater than level 32, and the 
defendant receives the 4-level (``minimal participant'') reduction in 
subsection (a) of Sec.  3B1.2 (Mitigating Role), the base offense level 
shall be decreased to level 32. This provision responds to section 7(1) 
of the Act, which directed the Commission to ensure that ``if the 
defendant is subject to a minimal role adjustment under the guidelines, 
the base offense level for the defendant based solely on drug quantity 
shall not exceed level 32''.
    Second, Part B amends Sec.  2D1.1 to create a new specific offense 
characteristic at subsection (b)(2) providing an enhancement of 2 
levels if the defendant used violence, made a credible threat to use 
violence, or directed the use of violence. The new specific offense 
characteristic responds to section 5 of the Act, which directed the 
Commission to ``ensure that the guidelines provide an additional 
penalty increase of at least 2 offense levels if the defendant used 
violence, made a credible threat to use violence, or directed the use 
of violence during a drug trafficking offense.''
    The amendment also revises the commentary to Sec.  2D1.1 to clarify 
how this new specific offense characteristic interacts with subsection 
(b)(1), which provides an enhancement of 2 levels if a dangerous weapon 
(including a firearm) was possessed. Specifically, Application Note 3 
is amended to provide that the enhancements in subsections (b)(1) and 
(b)(2) may be applied cumulatively. However, in a case in which the 
defendant merely possessed a dangerous weapon but did not use violence, 
make a credible threat to use violence, or direct the use of violence, 
subsection (b)(2) would not apply.
    In addition, the amendment makes a conforming change to the 
commentary to Sec.  2K2.4 (Use of Firearm, Armor-Piercing Ammunition, 
or Explosive During or in Relation to Certain Crimes) to address cases 
in which the defendant is sentenced under both Sec.  2D1.1 (for a drug 
trafficking offense) and Sec.  2K2.4 (for an offense under 18 U.S.C. 
Sec.  924(c)). In such a case, the sentence under Sec.  2K2.4 accounts 
for any weapon enhancement; therefore, in determining the sentence 
under Sec.  2D1.1, the weapon enhancement in Sec.  2D1.1(b)(1) does not 
apply. See Sec.  2K2.4, comment. (n. 4). The amendment amends this 
commentary to similarly provide that, in a case in which the defendant 
is sentenced under both Sec. Sec.  2D1.1 and 2K2.4, the new enhancement 
at Sec.  2D1.1(b)(2) also is accounted for by Sec.  2K2.4 and, 
therefore, does not apply.
    Third, Part B amends Sec.  2D1.1 to create a new specific offense 
characteristic at subsection (b)(11) providing an enhancement of 2 
levels if the defendant bribed, or attempted to bribe, a law 
enforcement officer to facilitate the commission of the offense. The 
new specific offense characteristic responds to section 6(1) of the 
Act, which directed the Commission ``to ensure an additional increase 
of at least 2 offense levels if * * * the defendant bribed, or 
attempted to bribe, a Federal, State, or local law enforcement official 
in connection with a drug trafficking offense''.
    The amendment also revises the commentary to Sec.  2D1.1 to clarify 
how this new specific offense characteristic interacts with the 
adjustment at Sec.  3C1.1 (Obstructing or Impeding the Administration 
of Justice). Specifically, new Application Note 27 provides that 
subsection (b)(11) does not apply if the purpose of the bribery was to 
obstruct or impede the investigation, prosecution, or sentencing of the

[[Page 24965]]

defendant because such conduct is covered by Sec.  3C1.1.
    Fourth, Part B amends Sec.  2D1.1 to create a new specific offense 
characteristic at subsection (b)(12) providing an enhancement of 2 
levels if the defendant maintained premises for the purpose of 
manufacturing or distributing a controlled substance. The new specific 
offense characteristic responds to section 6(2) of the Act, which 
directed the Commission to ``ensure an additional increase of at least 
2 offense levels if * * * the defendant maintained an establishment for 
the manufacture or distribution of a controlled substance, as generally 
described in section 416 of the Controlled Substances Act (21 U.S.C. 
856).''
    The amendment also adds commentary in Sec.  2D1.1 at Application 
Note 28 providing that the enhancement applies to a defendant who 
knowingly maintains premises (i.e., a building, room, or enclosure) for 
the purpose of maintaining or distributing a controlled substance. The 
new amendment differs from the temporary, emergency revisions in 
clarifying that distribution includes storage of a controlled substance 
for the purpose of distribution.
    Application Note 28 also provides that among the factors the court 
should consider in determining whether the defendant ``maintained'' the 
premises are (A) whether the defendant held a possessory interest in 
(e.g., owned or rented) the premises and (B) the extent to which the 
defendant controlled access to, or activities at, the premises. 
Application Note 28 also provides that manufacturing or distributing a 
controlled substance need not be the sole purpose for which the 
premises was maintained, but must be one of the defendant's primary or 
principal uses for the premises, rather than one of the defendant's 
incidental or collateral uses of the premises. In making this 
determination, the court should consider how frequently the premises 
was used by the defendant for manufacturing or distributing a 
controlled substance and how frequently the premises was used by the 
defendant for lawful purposes.
    Fifth, Part B amends Sec.  2D1.1 to create a new specific offense 
characteristic at subsection (b)(14) providing an enhancement of 2 
levels if the defendant receives an adjustment under Sec.  3B1.1 
(Aggravating Role) and the offense involved one or more of five 
specified factors. The new specific offense characteristic responds to 
section 6(3) of the Act, which directed the Commission ``to ensure an 
additional increase of at least 2 offense levels if * * * (A) the 
defendant is an organizer, leader, manager, or supervisor of drug 
trafficking activity subject to an aggravating role enhancement under 
the guidelines; and (B) the offense involved 1 or more of the following 
super-aggravating factors:
    (i) The defendant--
    (I) used another person to purchase, sell, transport, or store 
controlled substances;
    (II) used impulse, fear, friendship, affection, or some combination 
thereof to involve such person in the offense; and
    (III) such person had a minimum knowledge of the illegal enterprise 
and was to receive little or no compensation from the illegal 
transaction.
    (ii) The defendant--
    (I) knowingly distributed a controlled substance to a person under 
the age of 18 years, a person over the age of 64 years, or a pregnant 
individual;
    (II) knowingly involved a person under the age of 18 years, a 
person over the age of 64 years, or a pregnant individual in drug 
trafficking;
    (III) knowingly distributed a controlled substance to an individual 
who was unusually vulnerable due to physical or mental condition, or 
who was particularly susceptible to criminal conduct; or
    (IV) knowingly involved an individual who was unusually vulnerable 
due to physical or mental condition, or who was particularly 
susceptible to criminal conduct, in the offense.
    (iii) The defendant was involved in the importation into the United 
States of a controlled substance.
    (iv) The defendant engaged in witness intimidation, tampered with 
or destroyed evidence, or otherwise obstructed justice in connection 
with the investigation or prosecution of the offense.
    (v) The defendant committed the drug trafficking offense as part of 
a pattern of criminal conduct engaged in as a livelihood.''
    The amendment also revises the commentary to Sec.  2D1.1 to provide 
guidance in applying the new specific offense characteristic at Sec.  
2D1.1(b)(14). Specifically, new Application Note 29 provides that if 
the defendant distributes a controlled substance to an individual or 
involves an individual in the offense, as specified in subsection 
(b)(14)(B), the individual is not a ``vulnerable victim'' for purposes 
of subsection (b) of Sec.  3A1.1 (Hate Crime Motivation or Vulnerable 
Victim). Application Note 29 also provides that subsection (b)(14)(C) 
applies if the defendant committed, aided, abetted, counseled, 
commanded, induced, procured, or willfully caused the importation of a 
controlled substance. Subsection (b)(14)(C), however, does not apply if 
subsection (b)(3) or (b)(5) (as redesignated by the amendment) applies 
because the defendant's involvement in importation is adequately 
accounted for by those subsections. In addition, Application Note 29 
defines ``pattern of criminal conduct'' and ``engaged in as a 
livelihood'' for purposes of subsection (b)(14)(E) as those terms are 
defined in Sec.  4B1.3 (Criminal Livelihood).
    The amendment also revises the commentary in Sec.  3B1.4 (Using a 
Minor To Commit a Crime) and Sec.  3C1.1 (Obstructing or Impeding the 
Administration of Justice) to specify how those adjustments interact 
with Sec.  2D1.1(b)(14)(B) and (D), respectively. Specifically, 
Application Note 2 to Sec.  3B1.4 is amended to clarify that the 
increase of two levels under this section would not apply if the 
defendant receives an enhancement under Sec.  2D1.1(b)(14)(B). 
Similarly, Application Note 7 to Sec.  3C1.1 is amended to clarify that 
the increase of two levels under this section would not apply if the 
defendant receives an enhancement under Sec.  2D1.1(b)(14)(D).
    Sixth, Part B amends Sec.  2D1.1 to create a new specific offense 
characteristic at subsection (b)(15) providing a 2-level downward 
adjustment if the defendant receives the 4-level (``minimal 
participant'') reduction in subsection (a) of Sec.  3B1.2 (Mitigating 
Role) and the offense involved each of three additional specified 
factors: namely, the defendant was motivated by an intimate or familial 
relationship or by threats or fear to commit the offense when the 
defendant was otherwise unlikely to commit such an offense; was to 
receive no monetary compensation from the illegal purchase, sale, 
transport, or storage of controlled substances; and had minimal 
knowledge of the scope and structure of the enterprise. The specific 
offense characteristic responds to section 7(2) of the Act, which 
directed the Commission to ensure that ``there is an additional 
reduction of 2 offense levels if the defendant--
    (A) otherwise qualifies for a minimal role adjustment under the 
guidelines and had a minimum knowledge of the illegal enterprise;
    (B) was to receive no monetary compensation from the illegal 
transaction; and
    (C) was motivated by an intimate or familial relationship or by 
threats or fear when the defendant was otherwise unlikely to commit 
such an offense.''

[[Page 24966]]

    Seventh, to reflect the renumbering of specific offense 
characteristics in Sec.  2D1.1(b) by the amendment, technical and 
conforming changes are made to the commentary to Sec.  2D1.1 and to 
Sec.  2D1.14 (Narco-Terrorism).
Part C. Simple Possession of Crack Cocaine
    Part C re-promulgates without change the temporary, emergency 
revisions to Sec.  2D2.1 to account for the changes in the statutory 
penalties for simple possession of crack cocaine made in section 3 of 
the Act. Section 3 of the Act amended 21 U.S.C. 844(a) to eliminate the 
5-year mandatory minimum term of imprisonment (and 20-year statutory 
maximum) for simple possession of more than 5 grams of crack cocaine 
(or, for certain repeat offenders, more than 1 gram of crack cocaine). 
Accordingly, the statutory penalty for simple possession of crack 
cocaine is now the same as for simple possession of most other 
controlled substances: For a first offender, a maximum term of 
imprisonment of one year; for repeat offenders, maximum terms of 2 
years or 3 years, and minimum terms of 15 days or 90 days, depending on 
the prior convictions. See 21 U.S.C. 844(a). To account for this 
statutory change, the amendment deletes the cross-reference at Sec.  
2D2.1(b)(1) under which an offender who possessed more than 5 grams of 
crack cocaine was sentenced under the drug trafficking guideline, Sec.  
2D1.1.
    3. Amendment: The Commentary to Sec.  2D1.1 captioned ``Application 
Notes'' is amended in Note 8, in the first paragraph by adding at the 
end as the last sentence the following:
    ``Likewise, an adjustment under Sec.  3B1.3 ordinarily would apply 
in a case in which the defendant is convicted of a drug offense 
resulting from the authorization of the defendant to receive scheduled 
substances from an ultimate user or long-term care facility. See 21 
U.S.C. 822(g).''.
    Reason for Amendment: This amendment makes changes to the 
Commentary to Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) in response to the Secure and 
Responsible Drug Disposal Act of 2010, Public Law 111-273 (the 
``Act''). Section 3 of the Act amended 21 U.S.C. 822 (Persons required 
to register) to authorize certain persons in possession of controlled 
substances (i.e., ultimate users and long-term care facilities) to 
deliver the controlled substances for the purpose of disposal. Section 
4 of the Act contained a directive to the Commission to ``review and, 
if appropriate, amend'' the guidelines to ensure that the guidelines 
provide ``an appropriate penalty increase of up to 2 offense levels 
above the sentence otherwise applicable in Part D of the Guidelines 
Manual if a person is convicted of a drug offense resulting from the 
authorization of that person to receive scheduled substances from an 
ultimate user or long-term care facility as set forth in the amendments 
made by section 3.''
    The amendment implements the directive by amending Application Note 
8 to Sec.  2D1.1 to provide that an adjustment under Sec.  3B1.3 (Abuse 
of Position of Trust or Use of Special Skill) ordinarily would apply in 
a case in which the defendant is convicted of a drug offense resulting 
from the authorization of the defendant to receive scheduled substances 
from an ultimate user or long-term care facility. The amendment 
reflects the likelihood that in such a case the offender abused a 
position of trust (i.e., the authority provided by 21 U.S.C. Sec.  822 
to receive controlled substances for the purpose of disposal) to 
facilitate the commission or concealment of the offense.
    4. Amendment: The Commentary to Sec.  2J1.1 captioned ``Application 
Notes'' is amended in Note 2 by inserting ``In such a case, do not 
apply Sec.  2B1.1(b)(8)(C) (pertaining to a violation of a prior, 
specific judicial order).'' after ``failed to pay.''.
    Reason for Amendment: This amendment addresses a circuit conflict 
on whether the specific offense characteristic at subsection (b)(8)(C) 
of Sec.  2B1.1 (Theft, Property Destruction, and Fraud) applies to a 
defendant convicted of an offense involving the willful failure to pay 
court-ordered child support (i.e., a violation of 18 U.S.C. 228). The 
specific offense characteristic in Sec.  2B1.1(b)(8)(C) applies if the 
offense involved ``a violation of any prior, specific judicial or 
administrative order, injunction, decree, or process not addressed 
elsewhere in the guidelines.''
    It provides an enhancement of 2 levels and a minimum offense level 
of level 10.
    Offenses under section 228 are referenced in Appendix A (Statutory 
Index) to Sec.  2J1.1 (Contempt), which directs the court to apply 
Sec.  2X5.1 (Other Offenses), which in turn directs the court to apply 
the most analogous offense guideline. The commentary to Sec.  2J1.1 
provides that, in a case involving a violation of section 228, the most 
analogous offense guideline is Sec.  2B1.1. See Sec.  2J1.1, comment. 
(n.2).
    Some circuits have disagreed over whether to apply Sec.  
2B1.1(b)(8)(C) in a case involving a violation of section 228. The 
Second and Eleventh Circuits have held that applying Sec.  
2B1.1(b)(8)(C) in a section 228 case is permissible because the failure 
to pay the child support and the violation of the order are distinct 
harms. See United States v. Maloney, 406 F.3d 149, 153-54 (2d Cir. 
2005); United States v. Phillips, 363 F.3d 1167, 1169 (11th Cir. 2004). 
However, the Seventh Circuit has held that applying Sec.  
2B1.1(b)(8)(C) in a section 228 case is impermissible double counting. 
See United States v. Bell, 598 F.3d 366 (7th Cir. 2010) (``apply[ing] 
both the cross-reference for Sec.  228 and the enhancement for 
violation of a court or administrative order is impermissible double 
counting'').
    The amendment resolves the conflict by amending the commentary to 
Sec.  2J1.1 to specify that, in a case involving a violation of section 
228, Sec.  2B1.1(b)(8)(C) does not apply. The Commission determined 
that in a section 228 case the fact that the offense involved a 
violation of a court order is adequately accounted for by the base 
offense level.
    5. Amendment: Section 2K2.1(a) is amended in subdivision (4)(B) by 
striking ``or'' before ``(II) is''; and by adding at the end the 
following:
    ``or (III) is convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A) 
and committed the offense with knowledge, intent, or reason to believe 
that the offense would result in the transfer of a firearm or 
ammunition to a prohibited person;'';
    And in subdivision (6) by striking ``or'' before ``(B)''; and by 
adding at the end the following:
    ``or (C) is convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A) and 
committed the offense with knowledge, intent, or reason to believe that 
the offense would result in the transfer of a firearm or ammunition to 
a prohibited person;''.
    Section 2K2.1(b) is amended by striking subdivision (6) as follows:
    ``(6) If the defendant used or possessed any firearm or ammunition 
in connection with another felony offense; or possessed or transferred 
any firearm or ammunition with knowledge, intent, or reason to believe 
that it would be used or possessed in connection with another felony 
offense, increase by 4 levels. If the resulting offense level is less 
than level 18, increase to level 18.'',

and inserting a new subdivision (6) as follows:

    ``(6) If the defendant--
    (A) Possessed any firearm or ammunition while leaving or attempting 
to leave the United States, or possessed or transferred any firearm or 
ammunition with knowledge, intent, or reason to believe that it would 
be transported out of the United States; or

[[Page 24967]]

    (B) Used or possessed any firearm or ammunition in connection with 
another felony offense; or possessed or transferred any firearm or 
ammunition with knowledge, intent, or reason to believe that it would 
be used or possessed in connection with another felony offense,

increase by 4 levels. If the resulting offense level is less than level 
18, increase to level 18.''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 13(D) by inserting ``(B)'' after ``(b)(6)''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 14 by inserting ``(B)'' after ``(b)(6)'' each place it 
appears.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``15. Certain Convictions Under 18 U.S.C. 922(a)(6), 922(d), and 
924(a)(1)(A).--In a case in which the defendant is convicted under 18 
U.S.C. 922(a)(6), 922(d), or 924(a)(1)(A), a downward departure may be 
warranted if (A) none of the enhancements in subsection (b) apply, (B) 
the defendant was motivated by an intimate or familial relationship or 
by threats or fear to commit the offense and was otherwise unlikely to 
commit such an offense, and (C) the defendant received no monetary 
compensation from the offense.''.
    The Commentary to Sec.  2M5.1 captioned ``Statutory Provisions'' is 
amended by inserting ``22 U.S.C. 8512; 50 U.S.C. 1705; '' after 
``2332d;''.
    Section 2M5.2(a)(2) is amended by inserting ``(A)'' before ``non-
fully''; and by striking ``ten'' and inserting ``two, (B) ammunition 
for non-fully automatic small arms, and the number of rounds did not 
exceed 500, or (C) both''.
    The Commentary to Sec.  2M5.2 captioned ``Statutory Provisions'' is 
amended by inserting ``, 8512; 50 U.S.C. 1705'' after ``2780''.
    The Commentary to Sec.  2M5.3 captioned ``Statutory Provisions'' is 
amended by inserting ``22 U.S.C. 8512;'' before ``50 U.S.C. ``; and by 
striking `` Sec. 1701,''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 22 U.S.C. 4221 the following:
    ``22 U.S.C. 8512 2M5.1, 2M5.2, 2M5.3'';
    By striking the line referenced to 50 U.S.C. 1701;
    And in the line referenced to 50 U.S.C. 1705 by inserting ``2M5.1, 
2M5.2,'' before ``2M5.3''.
    Reason for Amendment: This multi-part amendment is a result of the 
Commission's review of offenses involving firearms crossing the border. 
The Commission undertook this review in response to concerns that the 
illegal flow of firearms across the southwestern border of the United 
States is contributing to violence along the border and ultimately 
harming the national security of the United States. The Commission has 
considered sentencing data, heard testimony, and received comment on 
the general concern of firearms crossing the border illegally and a 
specific concern that ``straw purchasers'' (i.e., individuals who buy 
firearms on behalf of others, typically ``prohibited persons'' who are 
not allowed to buy or possess firearms themselves) are contributing to 
this illegal flow of firearms to a significant degree.
    The amendment amends the primary firearms guideline, Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition), 
to address the general concern of firearms crossing the border and the 
specific concern about straw purchasers. The amendment also amends the 
guideline for arms export violations, Sec.  2M5.2 (Exportation of Arms, 
Munitions, or Military Equipment or Services Without Required Validated 
Export License), to provide greater penalties for export offenses 
involving small arms and more guidance on export offenses involving 
ammunition. Finally, the amendment revises the references in Appendix A 
(Statutory Index) for certain offenses, including providing a reference 
for a new offense created by the Comprehensive Iran Sanctions, 
Accountability, and Divestment Act of 2010, Public Law 111-195.

Firearms Leaving the United States

    Subsection (b)(6) provides a 4-level enhancement, and a minimum 
offense level of 18, if the defendant used or possessed any firearm or 
ammunition in connection with another felony offense, or possessed or 
transferred any firearm or ammunition with knowledge, intent, or reason 
to believe that it would be used or possessed in connection with 
another felony offense. The amendment establishes a new prong (A) in 
subsection (b)(6) that applies ``if the defendant possessed any firearm 
or ammunition while leaving or attempting to leave the United States; 
or possessed or transferred any firearm or ammunition with knowledge, 
intent, or reason to believe that it would be transferred out of the 
United States'', and redesignates the existing provision as prong (B). 
Under the amendment, a defendant receives the 4-level enhancement and 
minimum offense level 18 if either prong applies. The Commission 
determined that possessing a firearm while leaving or attempting to 
leave the United States is conduct sufficiently similar in seriousness 
to possessing a firearm in connection with another felony offense to 
warrant similar punishment. Likewise, possessing or transferring a 
firearm with knowledge, intent, or reason to believe that it would be 
transported out of the United States is conduct sufficiently similar in 
seriousness to possessing or transferring a firearm with knowledge, 
intent, or reason to believe that it would be used or possessed in 
connection with another felony offense to warrant similar punishment.
    Prior to the amendment, some courts have applied subsection (b)(6) 
to cases in which the defendant has transported or attempted to 
transport firearms across the border. These courts have concluded that 
because transporting a firearm outside the United States is generally a 
felony under federal law, such conduct may qualify as ``another felony 
offense'' for purposes of subsection (b)(6). See, e.g., United States 
v. Juarez, 626 F.3d 246 (5th Cir. 2010) (holding that, under the 
guideline as amended by the Commission in 2008, the district court did 
not plainly err in applying Sec.  2K2.1(b)(6) to a defendant who 
transferred firearms with reason to believe they would be taken across 
the border in a manner that would violate 22 U.S.C. 2778(b) and (c), 
which prohibits, among other things, the unlicensed export of defense 
articles and punishes such violations by up to 20 years' imprisonment). 
However, for clarity and to promote consistency of application, the 
Commission created a separate, distinct prong (A) in subsection (b)(6) 
to cover this conduct.

Straw Purchasers

    Second, the amendment amends Sec.  2K2.1 to address the concerns 
about straw purchasers. The amendment increases penalties for certain 
defendants convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A) for 
making a false statement in connection with a firearms transaction. 
Specifically, the amendment increases penalties for a defendant who is 
convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A) and committed the 
offense with knowledge, intent, or reason to believe that the offense 
would result in the transfer of a firearm or ammunition to a prohibited 
person. The base offense level for a defendant convicted under either 
of these statutes has been level 12, or level 18 if the offense 
involved a firearm described in 26 U.S.C. 5845(a). See

[[Page 24968]]

Sec.  2K2.1(a)(5), (7). The amendment amends subsections (a)(4)(B) and 
(a)(6) to increase the base offense level for these defendants to level 
14, or 20 if the offense involved either a semiautomatic firearm that 
is capable of accepting a large capacity magazine or a firearm 
described in 26 U.S.C. Sec.  5845(a).
    The amendment ensures that defendants convicted under 18 U.S.C. 
922(a)(6) or 924(a)(1)(A) receive the same punishment as defendants 
convicted under a third statute used to prosecute straw purchasers, 18 
U.S.C. 922(d), when the conduct is similar. Section 922(d) differs from 
18 U.S.C. 922(a)(6) and 924(a)(1)(A) in that it requires as an element 
of the offense that the defendant sell or otherwise dispose of a 
firearm or ammunition to a prohibited person knowing or having 
reasonable cause to believe that such person is a prohibited person. 
Section 2K2.1 has accounted for the increased offense seriousness and 
offender culpability in violations of 18 U.S.C. 922(d) by providing 
base offense levels for convictions under section 922(d) that are 
generally 2 levels higher than for convictions under 18 U.S.C. 
922(a)(6) and 924(a)(1)(A). See Sec.  2K2.1(a)(4)(B), (a)(6)(B). The 
Commission determined that defendants who are convicted under 18 U.S.C. 
922(a)(6) or 924(a)(1)(A) for making a false statement in connection 
with a firearms transaction and committed the offense with knowledge, 
intent, or reason to believe that the offense would result in the 
transfer of a firearm or ammunition to a prohibited person have engaged 
in conduct similar to the elements of 18 U.S.C. 922(d), are similarly 
culpable, and therefore warrant a similar sentence under Sec.  2K2.1.
    In addition, the amendment provides a new Application Note 15 
stating that, in a case in which the defendant is convicted under any 
of the three statutes, a downward departure may be warranted if (A) 
none of the enhancements in subsection (b) of Sec.  2K2.1 apply, (B) 
the defendant was motivated by an intimate or familial relationship or 
by threats or fear to commit the offense and was otherwise unlikely to 
commit such an offense, and (C) the defendant received no monetary 
compensation from the offense. The Commission determined that a 
defendant meeting these criteria may be less culpable than the typical 
straw purchaser.

Export Offenses Involving Small Arms or Ammunition

    Third, the amendment amends Sec.  2M5.2 to narrow the application 
of the alternative base offense level of 14 at subsection (a)(2). The 
alternative base offense level of 14 has applied ``if the offense 
involved only non-fully automatic small arms (rifles, handguns, or 
shotguns) and the number of weapons did not exceed ten.'' See Sec.  
2M5.2(a)(2). The amendment reduces the threshold number of small arms 
in subsection (a)(2) from ten to two. The Commission determined that 
export offenses involving more than two firearms are more serious and 
more likely to involve trafficking. Narrowing the application of 
subsection (a)(2) also brings Sec.  2M5.2 into greater conformity with 
Sec.  2K2.1 in how it accounts for the number of firearms involved in 
the offense. See Sec.  2K2.1(b)(1) (providing a tiered enhancement of 2 
to 10 levels if the offense involved three or more firearms); Sec.  
2K2.1, comment. (n.13) (specifying that the trafficking enhancement in 
Sec.  2K2.1(b)(5) applies if the offense involved two or more firearms 
and other requirements are also met).
    The amendment also amends Sec.  2M5.2 to address cases in which the 
defendant possessed ammunition, either in a case involving ammunition 
only or in a case involving ammunition and small arms. There appears to 
be differences in how Sec.  2M5.2 is being applied by the courts in 
such cases. Under the amendment, a defendant with ammunition will 
receive the alternative base offense level of 14 if the ammunition 
consisted of not more than 500 rounds of ammunition for small arms. 
Such ammunition typically is sold in quantities of not more than 500 
rounds, depending on the manufacturer and the type of ammunition. The 
Commission determined that, as with export offenses involving more than 
two firearms, export offenses involving more than 500 rounds of 
ammunition are more serious and more likely to involve trafficking.

References in Appendix A (Statutory Index)

    Fourth, the amendment amends Appendix A (Statutory Index) to expand 
the number of guidelines to which offenses under 50 U.S.C. 1705 are 
referenced. Section 1705 makes it unlawful to violate, attempt to 
violate, conspire to violate, or cause a violation of any license, 
order, regulation, or prohibition issued under the International 
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.). Any person who 
willfully commits, willfully attempts or conspires to commit, or aids 
or abets in the commission of such an unlawful act may be imprisoned 
for not more than 20 years. See 50 U.S.C. 1705(c). Appendix A 
(Statutory Index) previously contained two separate entries: the 
criminal offense, 50 U.S.C. 1705, was referenced to Sec.  2M5.3 
(Providing Material Support or Resources to Designated Foreign 
Terrorist Organizations or Specially Designated Global Terrorists, or 
For a Terrorist Purpose), while another statute that contains no 
criminal offense, 50 U.S.C. 1701, was referenced to Sec.  2M5.3 as well 
as to Sec. Sec.  2M5.1 (Evasion of Export Controls; Financial 
Transactions with Countries Supporting International Terrorism) and 
2M5.2 (Exportation of Arms, Munitions, or Military Equipment or 
Services Without Required Validated Export License). The amendment 
revises the entry for 50 U.S.C. 1705 to include all three guidelines, 
Sec. Sec.  2M5.1, 2M5.2, and 2M5.3, and deletes as unnecessary the 
entry for 50 U.S.C. 1701.
    Finally, the amendment addresses a new offense created by the 
Comprehensive Iran Sanctions, Accountability, and Divestment Act of 
2010, Public Law 111-195. Section 103 of that Act (22 U.S.C. 8512) 
makes it unlawful to import into the United States certain goods or 
services of Iranian origin, or export to Iran certain goods, services, 
or technology, and provides that the penalties under 50 U.S.C. 1705 
apply to a violation. The amendment amends Appendix A (Statutory Index) 
to reference the new offense at 22 U.S.C. 8512 to 2M5.1, 2M5.2, and 
2M5.3.
    6. Amendment: Section 2L1.2(b)(1)(A) is amended by inserting ``if 
the conviction receives criminal history points under Chapter Four or 
by 12 levels if the conviction does not receive criminal history 
points'' after ``16 levels''.
    Section 2L1.2(b)(1)(B) is amended by inserting ``if the conviction 
receives criminal history points under Chapter Four or by 8 levels if 
the conviction does not receive criminal history points'' after ``12 
levels''.
    The Commentary to 2L1.2 captioned ``Application Notes'' is amended 
in Note 1 by adding at the end the following:
    ``(C) Prior Convictions.--In determining the amount of an 
enhancement under subsection (b)(1), note that the levels in 
subsections (b)(1)(A) and (B) depend on whether the conviction receives 
criminal history points under Chapter Four (Criminal History and 
Criminal Livelihood), while subsections (b)(1)(C), (D), and (E) apply 
without regard to whether the conviction receives criminal history 
points.''.
    The Commentary to 2L1.2 captioned ``Application Notes'' is amended 
in Note 7 by inserting after ``warranted. (B)'' the following: ``In a 
case in which the 12-

[[Page 24969]]

level enhancement under subsection (b)(1)(A) or the 8-level enhancement 
in subsection (b)(1)(B) applies but that enhancement does not 
adequately reflect the extent or seriousness of the conduct underlying 
the prior conviction, an upward departure may be warranted. (C)''.
    Reason for Amendment: This amendment amends Sec.  2L1.2 (Unlawfully 
Entering or Remaining in the United States) to limit the extent of the 
enhancement at subsection (b)(1) provided for certain offenders. 
Subsection (b)(1) provides an enhancement if the defendant previously 
was deported, or unlawfully remained in the United States, after a 
predicate conviction. The amount of the enhancement ranges from 16 
levels to 4 levels, depending on the nature of the prior conviction. 
Specifically, prior to the amendment, subsection (b)(1)(A) has provided 
a 16-level increase for a prior conviction for a felony that is (i) A 
drug trafficking offense for which the sentence imposed exceeded 13 
months, (ii) a crime of violence, (iii) a firearms offense, (iv) a 
child pornography offense, (v) a national security or terrorism 
offense, (vi) a human trafficking offense, or (vii) an alien smuggling 
offense; and subsection (b)(1)(B) has provided a 12-level increase for 
a felony drug trafficking offense for which the sentence imposed was 13 
months or less. Both of these enhancements have applied regardless of 
whether the prior conviction received criminal history points under 
Chapter Four (Criminal History and Criminal Livelihood).
    The amendment reduces the enhancements at subsections (b)(1)(A) and 
(B) to 12 or 8 levels, respectively, if the prior conviction does not 
receive criminal history points under Chapter Four. Subsections 
(b)(1)(A) and (B) as amended continue to provide a 16- or 12-level 
enhancement, as applicable, if the prior conviction receives criminal 
history points under Chapter Four. Thus, for reasons of 
proportionality, the amendment maintains the 4-level distinction 
between defendants who receive an enhancement under subsection 
(b)(1)(A) and those who receive an enhancement under subsection 
(b)(1)(B), regardless of whether the prior conviction receives criminal 
history points.
    The amendment responds to case law and public comment regarding the 
magnitude of the enhancement when a defendant's predicate conviction 
does not receive criminal history points. Compare United States v. 
Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) (defendant had two 
convictions that were 25 years old; court stated that the 16-level 
enhancement in Sec.  2L1.2(b)(1)(A) ``addresses the seriousness of the 
offense'' but ``does not * * * justify increasing a defendant's 
sentence by the same magnitude irrespective of the age of the prior 
conviction at the time of reentry'' [emphasis in original]); with 
United States v. Chavez-Suarez, 597 F.3d 1137, 1139 (10th Cir. 2010) 
(defendant had a conviction that was 11 years old; court discussed 
Amezcua-Vasquez but was ``not convinced that this conviction was so 
stale'' as to require the sentencing court to vary downward from the 
16-level enhancement).
    Under the amendment, defendants with predicate offenses that 
qualify for an enhancement under subsections (b)(1)(A) and (B) continue 
to receive an enhancement, regardless of whether the prior convictions 
receive criminal history points under Chapter Four. Other provisions in 
the guidelines exclude consideration of a predicate conviction because 
of the age of the predicate conviction. See, e.g., Sec.  2K1.3 
(Unlawful Receipt, Possession, or Transportation of Explosive 
Materials; Prohibited Transactions Involving Explosive Materials), 
comment. (n.9); Sec.  2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition), comment. (n.10); Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1), comment. (n.3). The 
amendment conforms Sec.  2L1.2(b)(1)(A) and (B) more closely to those 
provisions, but because of the seriousness of the predicate offenses 
covered by subsection (b)(1)(A) and (B) reduces, rather than 
eliminates, the 16- and 12-level enhancements. See, e.g., Amezcua-
Vasquez, 567 F.3d at 1055 (acknowledging that it is ``reasonable to 
take some account of an aggravated felony, no matter how stale, in 
assessing the seriousness of an unlawful reentry into the country''). 
See also id. at 1055 (in certain cases in which the prior conviction is 
``stale'', an enhancement may be appropriate to address the 
``seriousness'' of the prior conviction but need not be of the ``same 
magnitude''); Chavez-Suarez, 597 F.3d at 1139 (same). For similar 
reasons, the amendment also adds an upward departure provision at 
Application Note 7 for cases in which the lower 12- or 8-level 
enhancement does not adequately reflect the extent or seriousness of 
the conduct underlying the prior conviction. Conforming changes to the 
Commentary are also made.
    7. Amendment: The Commentary to Sec.  3B1.2 captioned ``Application 
Notes'' is amended in Note 3(C) by inserting ``is based on the totality 
of the circumstances and'' after ``adjustment,''; and by striking the 
last sentence.
    The Commentary to Sec.  3B1.2 captioned ``Application Notes'' is 
amended in Note 4 by striking the last sentence.
    Reason for Amendment: This amendment deletes two sentences from the 
commentary to Sec.  3B1.2 (Mitigating Role). Specifically, in 
Application Note 3(C), the amendment deletes the statement that ``[a]s 
with any other factual issue, the court, in weighing the totality of 
the circumstances, is not required to find, based solely on the 
defendant's bare assertion, that such a role adjustment is warranted,'' 
while retaining the ``totality of the circumstances'' approach. In 
Application Note 4, the amendment deletes the sentence, ``It is 
intended that the downward adjustment for a minimal participant will be 
used infrequently''. The Commission determined that these two sentences 
are unnecessary and may have the unintended effect of discouraging 
courts from applying the mitigating role adjustment in otherwise 
appropriate circumstances.
    8. Amendment: Section 5D1.1 is amended by striking subsection (a) 
and inserting the following:
    ``(a) The court shall order a term of supervised release to follow 
imprisonment--
    (1) when required by statute (see 18 U.S.C. 3583(a)); or
    (2) except as provided in subsection (c), when a sentence of 
imprisonment of more than one year is imposed.'';

and in subsection (b) by adding at the end the following: ``See 18 
U.S.C. 3583(a).''.

    Section 5D1.1 is amended by adding at the end the following:
    ``(c) The court ordinarily should not impose a term of supervised 
release in a case in which supervised release is not required by 
statute and the defendant is a deportable alien who likely will be 
deported after imprisonment.''.
    The Commentary to Sec.  5D1.1 captioned ``Application Notes'' is 
amended by striking Notes 1 and 2 and inserting the following:
    ``1. Application of Subsection (a).--Under subsection (a), the 
court is required to impose a term of supervised release to follow 
imprisonment when supervised release is required by statute or, except 
as provided in subsection (c), when a sentence of imprisonment of more 
than one year is imposed. The court may depart from this guideline and 
not impose a term of supervised release if supervised release is not 
required by statute and the court determines, after considering the 
factors

[[Page 24970]]

set forth in Note 3, that supervised release is not necessary.
    2. Application of Subsection (b).--Under subsection (b), the court 
may impose a term of supervised release to follow a term of 
imprisonment in any other case, after considering the factors set forth 
in Note 3.
    3. Factors to Be Considered--
    (A) Statutory Factors.--In determining whether to impose a term of 
supervised release, the court is required by statute to consider, among 
other factors:
    (i) The nature and circumstances of the offense and the history and 
characteristics of the defendant;
    (ii) The need to afford adequate deterrence to criminal conduct, to 
protect the public from further crimes of the defendant, and to provide 
the defendant with needed educational or vocational training, medical 
care, or other correctional treatment in the most effective manner;
    (iii) The need to avoid unwarranted sentence disparities among 
defendants with similar records who have been found guilty of similar 
conduct; and
    (iv) The need to provide restitution to any victims of the offense.
    See 18 U.S.C. 3583(c).
    (B) Criminal History.--The court should give particular 
consideration to the defendant's criminal history (which is one aspect 
of the `history and characteristics of the defendant' in subparagraph 
(A)(i), above). In general, the more serious the defendant's criminal 
history, the greater the need for supervised release.
    (C) Substance Abuse.--In a case in which a defendant sentenced to 
imprisonment is an abuser of controlled substances or alcohol, it is 
highly recommended that a term of supervised release also be imposed. 
See Sec.  5H1.4 (Physical Condition, Including Drug or Alcohol 
Dependence or Abuse; Gambling Addiction).
    4. Community Confinement or Home Detention Following 
Imprisonment.--A term of supervised release must be imposed if the 
court wishes to impose a `split sentence' under which the defendant 
serves a term of imprisonment followed by a period of community 
confinement or home detention pursuant to subsection (c)(2) or (d)(2) 
of Sec.  5C1.1 (Imposition of a Term of Imprisonment). In such a case, 
the period of community confinement or home detention is imposed as a 
condition of supervised release.
    5. Application of Subsection (c).--In a case in which the defendant 
is a deportable alien specified in subsection (c) and supervised 
release is not required by statute, the court ordinarily should not 
impose a term of supervised release. Unless such a defendant legally 
returns to the United States, supervised release is unnecessary. If 
such a defendant illegally returns to the United States, the need to 
afford adequate deterrence and protect the public ordinarily is 
adequately served by a new prosecution. The court should, however, 
consider imposing a term of supervised release on such a defendant if 
the court determines it would provide an added measure of deterrence 
and protection based on the facts and circumstances of a particular 
case.''.
    Section 5D1.2(a) is amended in subdivision (1) by striking 
``three'' and inserting ``two''; and by adding at the end the 
following: ``See 18 U.S.C. 3583(b)(1).''.
    Section 5D1.2(a) is amended in subdivision (2) by striking ``two 
years'' and inserting ``one year''; and by adding at the end the 
following: ``See 18 U.S.C. 3583(b)(2).''.
    Section 5D1.2(a) is amended in subdivision (3) by adding at the end 
the following: ``See 18 U.S.C. 3583(b)(3).''.
    The Commentary to Sec.  5D1.2 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``4. Factors Considered.--The factors to be considered in 
determining the length of a term of supervised release are the same as 
the factors considered in determining whether to impose such a term. 
See 18 U.S.C. 3583(c); Application Note 3 to Sec.  5D1.1 (Imposition of 
a Term of Supervised Release). The court should ensure that the term 
imposed on the defendant is long enough to address the purposes of 
imposing supervised release on the defendant.
    5. Early Termination and Extension.--The court has authority to 
terminate or extend a term of supervised release. See 18 U.S.C. 
3583(e)(1), (2). The court is encouraged to exercise this authority in 
appropriate cases. The prospect of exercising this authority is a 
factor the court may wish to consider in determining the length of a 
term of supervised release. For example, the court may wish to consider 
early termination of supervised release if the defendant is an abuser 
of narcotics, other controlled substances, or alcohol who, while on 
supervised release, successfully completes a treatment program, thereby 
reducing the risk to the public from further crimes of the 
defendant.''.
    Reason for Amendment: This amendment makes revisions to the 
supervised release guidelines, Sec.  5D1.1 (Imposition of a Term of 
Supervised Release) and Sec.  5D1.2 (Term of Supervised Release), in 
response to both the findings in the Commission's July 2010 report, 
Federal Offenders Sentenced to Supervised Release, and changes in 
federal immigration law and the federal offender population in recent 
years.
    First, the amendment creates an exception to the general rule in 
Sec.  5D1.1(a) that a term of supervised release be imposed when a 
sentence of imprisonment of more than one year is imposed or when 
required by statute. The exception, which appears in a new subsection 
(c) in Sec.  5D1.1, states that supervised release ordinarily should 
not be imposed in a case in which supervised release is not required by 
statute and the defendant is a deportable alien who likely will be 
deported after imprisonment. A corresponding application note explains 
that imposing supervised release in such a case is generally 
unnecessary, although there may be particular cases in which it is 
appropriate. Non-citizens now are approximately half of the overall 
population of federal offenders, see 2010 Sourcebook of Federal 
Sentencing Statistics, Table 9 (showing that 47.5% of federal offenders 
in fiscal year 2010 were non-citizens), and supervised release is 
imposed in more than 91 percent of cases in which the defendant is a 
non-citizen, see Federal Offenders Sentenced to Supervised Release at 
60. The Commission determined that such a high rate of imposition of 
supervised release for non-citizen offenders is unnecessary because 
``recent changes in our immigration law have made removal nearly an 
automatic result for a broad class of noncitizen offenders.'' Padilla 
v. Kentucky, 130 S. Ct. 1473, 1481 (2010); see also id. at 1478 
(``[D]eportation or removal * * * is now virtually inevitable for a 
vast number of noncitizens convicted of crimes.''). Furthermore, such 
offenders likely would face prosecution for a new offense under the 
federal immigration laws if they were to return illegally to the United 
States.
    Second, the amendment lowers the minimum term of supervised release 
required by the guidelines for certain defendants (regardless of their 
citizenship status) when a statute does not require a higher minimum 
term. Section 5D1.2 requires the court to impose a term of supervised 
release of at least three years when the defendant is convicted of a 
Class A or B felony and at least two years when the defendant is 
convicted of a Class C or D felony. The amendment lowers these minimum 
terms to two years for a defendant convicted of a Class A and B felony 
and one year for a defendant convicted of a Class C or D felony. Thus, 
for reasons of proportionality, the amendment

[[Page 24971]]

maintains a 1-year distinction in the minimum term of supervised 
release between a defendant convicted of a Class A or B felony and a 
defendant convicted of a Class C or D felony. The Commission determined 
that these lesser minimum terms should be sufficient in most cases 
because research indicates that the majority of defendants who violate 
a condition of supervised release do so during the first year of the 
term of supervised release. See Federal Offenders Sentenced to 
Supervised Release at 63 & n. 265. Furthermore, if an offender shows 
non-compliance during such a minimum term, the court may extend the 
term of supervision up to the statutory maximum. See 18 U.S.C. 
3583(e)(2). The amendment also adds commentary at new Application Note 
5 encouraging courts to exercise their authority to terminate 
supervised release at any time after the expiration of one year of 
supervised release in appropriate cases. See 18 U.S.C. 3583(e)(1).
    Finally, the amendment adds commentary in Sec. Sec.  5D1.1 and 
5D1.2 that provides guidance on the factors a court should consider in 
deciding whether to order a term of supervised release (when not 
required by statute) and, if so, how long such a term should be. Such 
factors include the extent of an offender's criminal record, which 
research shows to be predictive of an offender's likelihood of 
complying with the conditions of supervision. See Federal Offenders 
Sentenced to Supervised Release at 66-67 (Figure 4) (noting that the 
rates of revocation for offenders increased steadily across the six 
Criminal History Categories (CHC), from 18.7% for offenders in CHC I to 
59.8% in CHC VI).
    9. Amendment: Section 5K2.0(e) is amended by striking ``written 
judgment and commitment order'' and inserting ``statement of reasons 
form''.
    The Commentary to Sec.  5K2.0 captioned ``Application Notes'' is 
amended in Note 3(C) in the second paragraph by striking ``written 
judgment and commitment order'' and inserting ``statement of reasons 
form''; and in Note 5 by striking ``written judgment and commitment 
order'' and inserting ``statement of reasons form''.
    Section 6B1.2(b)(2) is amended by striking ``departs from'' and 
inserting ``is outside''; and by striking ``specifically set forth'' 
and all that follows through ``order'' and inserting ``set forth with 
specificity in the statement of reasons form''.
    Section 6B1.2(c)(2) is amended by striking ``departs from'' and 
inserting ``is outside''; and by striking ``specifically set forth'' 
and all that follows through ``order'' and inserting ``set forth with 
specificity in the statement of reasons form''.
    The Commentary to Sec.  6B1.2 is amended in the second paragraph by 
striking ``departs from'' and inserting ``is outside''; by striking 
``(i.e., that such departure'' and all that follows through ``order'' 
and inserting ``and those reasons are set forth with specificity in the 
statement of reasons form. See 18 U.S.C. Sec.  3553(c)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 2237(a)(2)(B) the following:
    ``18 U.S.C. 2237(b)(2)(B)(i) 2A1.3, 2A1.4
    18 U.S.C. 2237(b)(2)(B)(ii)(I) 2A2.1, 2A2.2
    18 U.S.C. 2237(b)(2)(B)(ii)(II) 2A4.1
    18 U.S.C. 2237(b)(2)(B)(ii)(III) 2A3.1
    18 U.S.C. Sec.  2237(b)(3) 2A2.2
    18 U.S.C. 2237(b)(4) 2A2.1, 2A2.2, 2G1.1, 2G1.3, 2G2.1, 2H4.1, 
2L1.1'';
    and by inserting after the line referenced to 33 U.S.C. 1908 the 
following:
    ``33 U.S.C. 3851 2Q1.2''.
    Reason for Amendment: This two-part amendment addresses 
miscellaneous issues arising from recently enacted legislation and 
other guideline application issues.

Plea Agreements

    First, the amendment updates the policy statement at Sec.  6B1.2 
(Standards for Acceptance of Plea Agreements) in light of United States 
v. Booker, 543 U.S. 220 (2005). Specifically, it amends Sec.  6B1.2 to 
provide standards for acceptance of plea agreements when the sentence 
is outside the applicable guideline range, including when the sentence 
is a ``variance'' (i.e., a sentence that is outside the guidelines 
framework). These changes to Sec.  6B1.2 are consistent with the 
changes to Sec.  1B1.1 (Application Instructions) that the Commission 
promulgated last year, see USSG App. C, Amendment 741 (effective 
November 1, 2010), and reflect Booker and subsequent case law.
    The amendment also responds to the Federal Judiciary Administrative 
Improvements Act of 2010, Public Law 111B174 (enacted May 27, 2010), 
which amended 18 U.S.C. 3553(c)(2) to require that the reasons for a 
sentence be set forth in the statement of reasons form (rather than in 
the judgment and commitment order). The amendment makes appropriate 
clerical changes to Sec.  6B1.2 and subsection (e) of Sec.  5K2.0 
(Grounds for Departure) to reflect this statutory change.
Coast Guard Authorization Act of 2010
    Second, the amendment responds to the Coast Guard Authorization Act 
of 2010, Public Law 111B281 (enacted October 15, 2010), which provided 
statutory sentencing enhancements for certain offenses under 18 U.S.C. 
2237 (Criminal sanctions for failure to heave to, obstruction of 
boarding, or providing false information) and created a new criminal 
offense at 33 U.S.C. 3851.
    The amendment addresses the section 2237 offenses by expanding the 
range of guidelines to which certain section 2237 offenses are 
referenced. Section 2237 makes it unlawful for--

    The operator of a vessel to knowingly fail to obey a law 
enforcement order to heave to, see 18 U.S.C. ' 2237(a)(1);
    A person on board a vessel to forcibly interfere with a law 
enforcement boarding or other law enforcement action, or to resist 
arrest, see 18 U.S.C. Sec.  2237(a)(2)(A); or
    A person on board a vessel to provide materially false 
information to a law enforcement officer during a boarding regarding 
the vessel's destination, origin, ownership, registration, 
nationality, cargo, or crew, see 18 U.S.C. Sec.  2237(a)(2)(B).

    All three of these offenses are punishable by not more than 5 years 
of imprisonment. The first two are referenced in Appendix A (Statutory 
Index) to Sec.  2A2.4 (Obstructing or Impeding Officers); the third is 
referenced to Sec.  2B1.1 (Theft, Property Destruction, and Fraud). 
However, the Coast Guard Authorization Act of 2010 provided statutory 
sentencing enhancements that apply to persons convicted under either of 
the first two offenses under section 2237 (i.e., the failure-to-heave-
to and forcible-interference offenses referenced to Sec.  2A2.4; the 
statutory sentencing enhancements do not apply to the false-information 
offense referenced to Sec.  2B1.1). The amendment addresses these new 
statutory sentencing enhancements by referencing them in Appendix A 
(Statutory Index) to Chapter Two offense guidelines most analogous to 
the conduct forming the basis for the statutory sentencing 
enhancements, as follows.
    If the section 2237 offense results in death, the statutory maximum 
term of imprisonment is raised to any term of years or life. See 18 
U.S.C. 2237(b)(2)(B)(i). The Commission referenced this statutory 
sentencing enhancement to Sec. Sec.  2A1.3 (Voluntary Manslaughter) and 
2A1.4 (Involuntary Manslaughter) because the statutory sentencing 
enhancement involves death without proof of malice aforethought.
    If the section 2237 offense involves an attempt to kill, kidnapping 
or an attempt to kidnap, or an offense under

[[Page 24972]]

18 U.S.C. 2241 (aggravated sexual abuse), the statutory maximum term of 
imprisonment likewise is raised to any term of years or life. See 18 
U.S.C. 2237(b)(2)(B)(ii). The Commission referenced this statutory 
sentencing enhancement to Sec. Sec.  2A2.1 (Assault with Intent to 
Commit Murder; Attempted Murder) and 2A2.2 (Aggravated Assault) to 
account for when the section 2237 offense involves an attempt to kill, 
because those guidelines apply to attempted murder and attempted 
manslaughter, respectively; to Sec.  2A3.1 (Criminal Sexual Abuse; 
Attempt to Commit Criminal Sexual Abuse) to account for when the 
section 2237 offense involves an offense under 18 U.S.C. Sec.  2241, 
because offenses under section 2241 are referenced to that guideline; 
and to Sec.  2A4.1 (Kidnapping, Abduction, Unlawful Restraint) to 
account for when the section 2237 offense involves kidnapping or 
attempted kidnapping, because that guideline applies to kidnapping.
    If the section 2237 offense results in serious bodily injury, the 
statutory maximum term of imprisonment is raised to 15 years. See 18 
U.S.C. 2237(b)(3). The Commission referenced this statutory sentencing 
enhancement to Sec.  2A2.2 because a section 2237 offense involving 
this statutory sentencing enhancement is similar to an assault that 
results in bodily injury, and that guideline applies to such an 
assault. See USSG Sec.  2A2.2, comment. (n.1) (defining aggravated 
assault to include any assault that involved serious bodily injury).
    If the section 2237 offense involves knowing transportation under 
inhumane conditions, and is committed in the course of a violation of 8 
U.S.C. 1324; chapter 77 of title 18, United States Code; or section 113 
or 117 of such title, the statutory maximum term of imprisonment is 
raised to 15 years. See 18 U.S.C. Sec.  2237(b)(4). The Commission 
referenced this statutory sentencing enhancement to the following 
guidelines:

    To Sec. Sec.  2A2.1 (Assault with Intent to Commit Murder; 
Attempted Murder) and 2A2.2 to account for when the section 2237 
offense involves a violation of section 113, because section 113 
offenses are referenced to those guidelines;
    To Sec. Sec.  2G1.1 (Promoting a Commercial Sex Act or 
Prohibited Sexual Conduct with an Individual Other than a Minor), 
2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct 
with a Minor; Transportation of Minors to Engage in a Commercial Sex 
Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex 
Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of 
Children; Use of Interstate Facilities to Transport Information 
about a Minor), and 2G2.1 (Sexually Exploiting a Minor by Production 
of Sexually Explicit Visual or Printed Material; Custodian 
Permitting Minor to Engage in Sexually Explicit Conduct; 
Advertisement for Minors to Engage in Production) to account for 
when the section 2237 offense involves a violation of 18 U.S.C. 
Sec.  1591 (which is within chapter 77), because offenses under 
section 1591 are referenced to those guidelines;
    To Sec.  2H4.1 (Peonage, Involuntary Servitude, Slave Trade, and 
Child Soldiers) to account for when the section 2237 offense 
involves a violation of any provision of chapter 77 other than 18 
U.S.C. Sec.  1591, because such violations generally are referenced 
to that guideline; and
    to Sec.  2L1.1 (Smuggling, Transporting, or Harboring an 
Unlawful Alien) to account for when the section 2237 offense 
involves a violation of 8 U.S.C. Sec.  1324, because section 1324 
offenses are referenced to that guideline.

    Finally, the amendment addresses the new criminal offense at 33 
U.S.C. 3851, which makes it a felony, punishable by imprisonment for 
not more than six years, to sell or distribute an organotin or to sell, 
distribute, make, use, or apply an anti-fouling system (e.g., paint) 
containing an organotin. The Commission referenced this offense to 
Sec.  2Q1.2 (Mishandling of Hazardous or Toxic Substances or 
Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully 
Transporting Hazardous Materials in Commerce) because the offense 
involves pesticides known to be toxic.
    10. Amendment: Chapter Two is amended in the introductory 
commentary by inserting ``and Related Adjustments'' after 
``(Obstruction''.
    The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended in Note 2(A) by inserting ``and Related Adjustments'' after 
``(Obstruction''; and in Note 3 by inserting ``and Related 
Adjustments'' after ``(Obstruction''.
    The Commentary to Sec.  2J1.3 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``and Related Adjustments'' after 
``(Obstruction''; and in Note 3 by inserting ``and Related 
Adjustments'' after ``(Obstruction''.
    The Commentary to Sec.  2J1.6 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``and Related Adjustments'' after 
``(Obstruction''; and in Note 4 by striking ``Obstruction of Justice'' 
and inserting ``Obstructing or Impeding the Administration of 
Justice''.
    The Commentary to Sec.  2J1.9 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``and Related Adjustments'' after 
``(Obstruction''; and in Note 2 by inserting ``and Related 
Adjustments'' after ``(Obstruction''.
    Section 2Q2.1(c)(1) is amended by inserting ``or paleontological 
resource'' after ``heritage resource''; and by inserting ``or 
Paleontological Resources'' after ``Heritage Resources'' in both 
places.
    Section 3C1.1 is amended by striking ``(A)'' and inserting ``(1)''; 
by striking ``(B)'' and inserting ``(2)''; by striking ``(i)'' and 
inserting ``(A)''; and by striking ``(ii)'' and inserting ``(B)''.
    Section 4A1.2(k)(2) is amended by striking ``(i)'' and inserting 
``(A)''; by striking ``(ii)'' and inserting ``(B)''; and by striking 
``(iii)'' and inserting ``(C)''.
    Section 4B1.1(b) is amended by redesignating (A) through (G) as (1) 
through (7).
    The Commentary to Sec.  5E1.2 captioned ``Application Notes'' is 
amended in Note 6 by inserting ``and Related Adjustments'' after 
``(Obstruction''.
    The Commentary to Sec.  8A1.2 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``and Related Adjustments'' after 
``(Obstruction''.
    Section 8B2.1(a) is amended by striking ``(c)'' and inserting 
``(b)''.
    The Commentary to Sec.  8C2.3 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``and Related Adjustments'' after 
``(Obstruction''.
    Reason for Amendment: This amendment makes various technical and 
conforming changes to the guidelines.
    First, the amendment makes certain technical and conforming changes 
in connection with the amendments that the Commission submitted to 
Congress on April 29, 2010. See 75 FR 27388 (May 14, 2010); USSG App. 
C, Amendments 738B746. Those changes are as follows:
    (1) Amendment 744 made changes to the organizational guidelines in 
Chapter Eight, including a change that consolidated subsections (b) and 
(c) of Sec.  8D1.4 (Recommended Conditions of Probation--Organizations) 
into a single subsection (b). To reflect this consolidation, subsection 
(a) of Sec.  8B2.1 (Effective Compliance and Ethics Program) is changed 
so that it refers to the correct subsection of Sec.  8D1.4.
    (2) Amendment 745 expanded the scope of Sec.  2B1.5 (Theft of, 
Damage to, or Destruction of, Cultural Heritage Resources; Unlawful 
Sale, Purchase, Exchange, Transportation, or Receipt of Cultural 
Heritage Resources) to cover not only cultural heritage resources but 
also paleontological resources. To reflect this expanded scope, a 
conforming change is made to subsection (c)(1) of Sec.  2Q2.1 (Offenses 
Involving Fish, Wildlife, and Plants).
    Second, the amendment makes technical changes to Sec.  3C1.1 
(Obstructing or Impeding the Administration of Justice), subsection 
(k)(2) of Sec.  4A1.2 (Definitions and

[[Page 24973]]

Instructions for Computing Criminal History), and subsection (b) of 
Sec.  4B1.1 (Career Offender) to promote stylistic consistency in how 
subdivisions are designated throughout the Guidelines Manual.
    Finally, the amendment makes a series of changes throughout the 
Guidelines Manual to provide full and accurate references to the titles 
of Chapter Three, Part C (Obstruction and Related Adjustments) and 
Sec.  3C1.1.
    (2) Request for Comment on Amendment 2, Pertaining to Drug 
Offenses.
    On April 28, 2011, the Commission submitted to the Congress 
amendments to the sentencing guidelines and official commentary, which 
become effective on November 1, 2011, unless Congress acts to the 
contrary. Such amendments and the reasons for amendment are set forth 
in this notice.
    Amendment 2, pertaining to drug offenses, has the effect of 
lowering guideline ranges. See 28 U.S.C. 994(u) (``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.''). The Commission seeks comment regarding whether, pursuant 
to 18 U.S.C. Sec.  3582(c)(2) and 28 U.S.C. Sec.  994(u), this 
amendment, or any part thereof, should be included in subsection (c) of 
Sec.  1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range (Policy Statement)) as an amendment that may be applied 
retroactively to previously sentenced defendants.
    The Commission also requests comment regarding whether, if it 
amends Sec.  1B1.10(c) to include this amendment, it also should amend 
Sec.  1B1.10 to provide guidance to the courts on the procedure to be 
used when applying an amendment retroactively under 18 U.S.C. 
3582(c)(2).

Part-by-Part Consideration

    Amendment 2, pertaining to drug offenses, contains three parts. The 
Commission seeks comment on whether it should list the entire 
amendment, or one or more parts of the amendment, in subsection (c) of 
Sec.  1B1.10 as an amendment that may be applied retroactively to 
previously sentenced defendants.
    Part A changes the Drug Quantity Table in Sec.  2D1.1 for offenses 
involving crack cocaine. This has the effect of lowering guideline 
ranges for certain defendants for offenses involving crack cocaine.
    Part B contains both mitigating and aggravating provisions for 
offenses involving drugs, regardless of drug type. The mitigating 
provisions have the effect of lowering guideline ranges for certain 
defendants in drug cases, and the aggravating provisions have the 
effect of raising guideline ranges for certain defendants in drug 
cases.
    Part C deletes the cross reference in Sec.  2D2.1(b)(1) under which 
an offender who possessed more than 5 grams of crack cocaine was 
sentenced under Sec.  2D1.1. This has the effect of lowering guideline 
ranges for certain defendants for offenses involving simple possession 
of crack cocaine.
    For each of these three parts, the Commission requests comment on 
whether that part should be listed in subsection (c) of Sec.  1B1.10 as 
an amendment that may be applied retroactively. Note that if Part B 
were applied retroactively (in isolation, or in combination with Parts 
A and/or C), the court would determine not only whether any mitigating 
provisions in Part B applied, but also whether any aggravating 
provisions in Part B applied. To the extent any aggravating provisions 
applied, the aggravating effect of those provisions would act to offset 
the mitigating effect of changes made by Parts A, B, and C, to the 
extent they apply, but in no event could the net effect result in the 
defendant receiving a sentence higher than the sentence previously 
imposed. See 18 U.S.C. 3582(c)(2) (authorizing the court to ``reduce'', 
but not increase, the defendant's term of imprisonment).
    For its consideration of Parts A and B, the Commission seeks 
comment on two options in particular. Option 1 would include Part A as 
an amendment that may be applied retroactively, but would not include 
Part B. Option 2 would include both Part A and Part B.

Other Guidance or Limitations

    If the Commission does list the entire amendment, or one or more 
parts of the amendment, in subsection (c) of Sec.  1B1.10 as an 
amendment that may be applied retroactively to previously sentenced 
defendants, should the Commission provide further guidance or 
limitations regarding the circumstances in which and the amount by 
which sentences may be reduced?
    In particular, should the Commission limit retroactivity only to a 
particular category of defendants, such as (A) defendants in a 
particular criminal history category or categories (e.g., defendants in 
Criminal History Category I) or (B) defendants who received an 
adjustment under the guidelines' ``safety valve'' provision (currently 
Sec.  2D1.1(b)(16))?
    Should the Commission exclude from retroactivity certain categories 
of defendants whose offense involved aggravating conduct such as, for 
example, (A) defendants who received an enhanced penalty under Sec.  
2D1.2 (Drug Offenses Occurring Near Protected Locations or Involving 
Underage or Pregnant Individuals; Attempt or Conspiracy), (B) 
defendants who received an adjustment under Sec.  3B1.1 (Aggravating 
Role), (C) defendants who received an adjustment under Sec.  3B1.4 
(Using a Minor to Commit a Crime), (D) defendants who received an 
enhancement under Sec.  2D1.1(b)(1) (i.e., if ``a dangerous weapon 
(including a firearm) was possessed''), (E) defendants who were 
sentenced to a mandatory minimum term of imprisonment because of a 
conviction for a firearms offense (i.e., a conviction under 18 U.S.C. 
Sec. Sec.  844(h), 924(c), or 929(a)), or (F) defendants who are career 
offenders under Sec.  4B1.1 (Career Offender)?
    In considering whether to limit retroactivity to a particular 
category or categories of defendants, how, if at all, should the 
Commission account for the fact that the jurisprudence that applies to 
sentencing has changed to expand the discretionary authority of a 
sentencing court to impose a sentence outside the guidelines framework? 
Should the Commission limit retroactivity only to, for example, (A) 
defendants who were sentenced within the guideline range, (B) 
defendants who were sentenced within the guideline range or who 
received a departure under Chapter Five, Part K, (C) defendants 
sentenced before United States v. Booker, 543 U.S. 220 (2005), (D) 
defendants sentenced before Kimbrough v. United States, 552 U.S. 85, 
110 (2007) (``it would not be an abuse of discretion for a district 
court to conclude when sentencing a particular defendant that the 
crack/powder disparity yields a sentence `greater than necessary' to 
achieve Sec.  3553(a)'s purposes, even in a mine-run case''), or (E) 
defendants sentenced before Spears v. United States, 555 U.S. 261, 129 
S.Ct. 840, 844 (2009) (``we now clarify that district courts are 
entitled to reject and vary categorically from the crack-cocaine 
Guidelines based on a policy disagreement with those Guidelines'')? 
Section 1B1.10 addresses this factor as follows:

    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

[[Page 24974]]

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. Sec.  3553(a) and United States v. Booker, 543 U.S. 220 
(2005), a further reduction generally would not be appropriate.

    Should the Commission amend Sec.  1B1.10 to provide further 
guidance on how the sentencing court, in considering retroactivity, 
should account for this factor?

[FR Doc. 2011-10725 Filed 5-2-11; 8:45 am]
BILLING CODE 2211-01-P