[Federal Register Volume 76, Number 134 (Wednesday, July 13, 2011)]
[Notices]
[Pages 41332-41335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17640]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for the United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of final action regarding amendment to Policy Statement 
1B1.10, effective November 1, 2011.

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SUMMARY: The Sentencing Commission hereby gives notice of an amendment 
to a policy statement and commentary made pursuant to its authority 
under 28 U.S.C. 994(a) and (u). The Commission promulgated an amendment 
to Policy Statement 1B1.10 (Reduction in Term of Imprisonment as a 
Result of Amended Guideline Range) clarifying when, and to what extent, 
a sentencing reduction is considered consistent with the policy 
statement and therefore authorized under 18 U.S.C. 3582(c)(2). The 
amendment amends 1B1.10 (Reduction in Term of Imprisonment as a Result 
of Amended Guideline Range) (Policy Statement) in four ways. First, it 
expands the listing in 1B1.10(c) to include Amendment 750 (Parts A and 
C only) as an amendment that may be applied retroactively. Second, it 
amends 1B1.10 to change the limitations that apply in cases in which 
the term of imprisonment was less than the minimum of the applicable 
guideline range at the time of sentencing. Third, it amends the 
commentary to 1B1.10 to address an application issue about what 
constitutes the ``applicable guideline range'' for purposes of 1B1.10. 
Fourth, it adds an application note to 1B1.10 to specify that the court 
shall use the version of 1B1.10 that is in effect on the date on which 
the court reduces the defendant's term of imprisonment as provided by 
18 U.S.C. 3582(c)(2).

DATES: The effective date of this policy statement and commentary 
amendment is November 1, 2011.

FOR FURTHER INFORMATION CONTACT: Jeanne Doherty, Office of Legislative 
and Public Affairs, 202-502-4502.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). 
The Commission also periodically reviews and revises previously 
promulgated guidelines pursuant to 28 U.S.C. 994(o), and specifies in 
what circumstances and by what amount sentences of imprisonment may be 
reduced if the Commission reduces the term of imprisonment recommended 
in the guidelines applicable to a particular offense or category of 
offenses pursuant to 28 U.S.C. 994(u).
    Additional information may be accessed through the Commission's Web 
site at http://www.ussc.gov.

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

Patti B. Saris,

Chair.
    1. Amendment: Section 1B1.10(b) is amended in subdivision (2) by 
striking ``Limitations'' and inserting ``Limitation''; in subdivision 
(2)(A) by striking ``In General'' and inserting ``Limitation''; in 
subdivision (2)(B) by inserting ``for Substantial Assistance'' after 
``Exception''; by striking ``original''; by inserting ``pursuant to a 
government motion to reflect the defendant's substantial assistance to 
authorities'' after ``of sentencing''; and by striking the last 
sentence.
    Section 1B1.10(c) is amended by striking ``and''; and by inserting 
``, and 750 (parts A and C only)'' before the period at the end.
    The Commentary to 1B1.10 captioned ``Application Notes'' is amended 
in Note 1(A) in the first sentence by inserting ``(i.e., the guideline 
range that corresponds to the offense level and criminal history 
category determined pursuant to 1B1.1(a), which is determined before 
consideration of any departure provision in the Guidelines Manual or 
any variance)'' before the period; and in Note 1(B)(iii) by striking 
``original''.
    The Commentary to 1B1.10 captioned ``Application Notes'' is amended 
in Note 3 in the first paragraph by striking ``original'' in both 
places; by striking ``shall not'' and inserting ``may'' in both places; 
by inserting ``as provided in subsection (b)(2)(A),'' after 
``Specifically,''; by inserting ``no'' before ``less than the 
minimum''; by striking ``41 to 51'' and inserting ``70 to 87''; by 
striking ``41'' and inserting ``70''; by striking ``30 to 37'' and 
inserting ``51 to 63''; by striking ``to a term less than 30 months'' 
and inserting ``, but shall not reduce it to a term less than 51 
months''; and by striking the second paragraph and inserting the 
following new paragraphs:
    ``If the term of imprisonment imposed was outside the guideline 
range applicable to the defendant at the time of sentencing, the 
limitation in subsection (b)(2)(A) also applies. Thus, if the term of 
imprisonment imposed in the example provided above was not a sentence 
of 70 months (within the guidelines range) but instead was a sentence 
of 56 months (constituting a downward departure or variance), the court 
likewise may reduce the defendant's term of imprisonment, but shall not 
reduce it to a term less than 51 months.
    Subsection (b)(2)(B) provides an exception to this limitation, 
which applies if the 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 pursuant to a government motion to 
reflect the defendant's substantial assistance to authorities. In such 
a case, the court may reduce the defendant's term, but the reduction is 
not limited by subsection (b)(2)(A) to the minimum of the amended 
guideline range. Instead, as provided in subsection (b)(2)(B), the 
court may, if appropriate, provide a reduction comparably less than the 
amended guideline range. Thus, if the term of imprisonment imposed in 
the example provided above was 56 months pursuant to a government 
motion to reflect the defendant's substantial assistance to authorities 
(representing a downward departure of 20 percent below the minimum term 
of imprisonment provided by the guideline range applicable to the 
defendant at the time of sentencing), a reduction to a term of 
imprisonment of 41 months (representing a reduction of

[[Page 41333]]

approximately 20 percent below the minimum term of imprisonment 
provided by the amended guideline range) would amount to a comparable 
reduction and may be appropriate.
    The provisions authorizing such a government motion are 5K1.1 
(Substantial Assistance to Authorities) (authorizing, upon government 
motion, a downward departure based on the defendant's substantial 
assistance); 18 U.S.C. 3553(e) (authorizing the court, upon government 
motion, to impose a sentence below a statutory minimum to reflect the 
defendant's substantial assistance); and Fed. R. Crim. P. 35(b) 
(authorizing the court, upon government motion, to reduce a sentence to 
reflect the defendant's substantial assistance).'' and in the fifth 
paragraph, as redesignated by this amendment, by inserting ``See 
subsection (b)(2)(C).'' after ``time served.''.
    The Commentary to 1B1.10 captioned ``Application Notes'' is amended 
by redesignating Note 4 as Note 5 and inserting after Note 3 the 
following:
    ``4. Application to Amendment 750 (Parts A and C Only).--As 
specified in subsection (c), the parts of Amendment 750 that are 
covered by this policy statement are Parts A and C only. Part A amended 
the Drug Quantity Table in 2D1.1 for crack cocaine and made related 
revisions to Application Note 10 to 2D1.1. Part C deleted the cross 
reference in 2D2.1(b) under which an offender who possessed more than 5 
grams of crack cocaine was sentenced under 2D1.1.''.
    The Commentary to 1B1.10 captioned ``Application Notes'' is amended 
by adding at the end the following:
    ``6. Use of Policy Statement in Effect on Date of Reduction.--
Consistent with subsection (a) of 1B1.11 (Use of Guidelines Manual in 
Effect on Date of Sentencing), the court shall use the version of this 
policy statement that is in effect on the date on which the court 
reduces the defendant's term of imprisonment as provided by 18 U.S.C. 
3582(c)(2).''.
    The Commentary to 1B1.10 captioned ``Background'' is amended in the 
second paragraph by adding at the end as the last sentence the 
following:
    ``The Supreme Court has concluded that proceedings under section 
3582(c)(2) are not governed by United States v. Booker, 543 U.S. 220 
(2005), and this policy statement remains binding on courts in such 
proceedings. See Dillon v. United States, 130 S. Ct. 2683 (2010).''.
    Reason for Amendment: This amendment amends 1B1.10 (Reduction in 
Term of Imprisonment as a Result of Amended Guideline Range) (Policy 
Statement) in four ways. First, it expands the listing in 1B1.10(c) to 
implement the directive in 28 U.S.C. 994(u) with respect to guideline 
amendments that may be considered for retroactive application. Second, 
it amends 1B1.10 to change the limitations that apply in cases in which 
the term of imprisonment was less than the minimum of the applicable 
guideline range at the time of sentencing. Third, it amends the 
commentary to 1B1.10 to address an application issue about what 
constitutes the ``applicable guideline range'' for purposes of 1B1.10. 
Fourth, it adds an application note to 1B1.10 to specify that the court 
shall use the version of 1B1.10 that is in effect on the date on which 
the court reduces the defendant's term of imprisonment as provided by 
18 U.S.C. 3582(c)(2).
    First, the Commission has determined, under the applicable 
standards set forth in the background commentary to 1B1.10, that 
Amendment 750 (Parts A and C only) should be included in 1B1.10(c) as 
an amendment that may be considered for retroactive application. Part A 
amended the Drug Quantity Table in 2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) for crack cocaine and 
made related revisions to Application Note 10 to 2D1.1. Part C deleted 
the cross reference in 2D2.1(b) under which an offender who possessed 
more than 5 grams of crack cocaine was sentenced under 2D1.1.
    Under the applicable standards set forth in the background 
commentary to 1B1.10, the Commission considers, among other factors, 
(1) the purpose of the amendment, (2) the magnitude of the change in 
the guideline range made by the amendment, and (3) the difficulty of 
applying the amendment retroactively. See 1B1.10, comment. (backg'd.). 
Applying those standards to Parts A and C of Amendment 750, the 
Commission determined that, among other factors:
    (1) The purpose of Parts A and C of Amendment 750 was to account 
for the changes in the statutory penalties made by the Fair Sentencing 
Act of 2010, Public Law 111-220, 124 Stat. 2372, for offenses involving 
cocaine base (``crack cocaine''). See USSG App. C, Amend. 750 (Reason 
for Amendment). The Fair Sentencing Act of 2010 did not contain a 
provision making the statutory changes retroactive. The Act directed 
the Commission to promulgate guideline amendments implementing the Act. 
The guideline amendments implementing the Act have the effect of 
reducing the term of imprisonment recommended in the guidelines for 
certain defendants, and the Commission has a statutory duty to consider 
whether the resulting guideline amendments should be made available for 
retroactive application. See 28 U.S.C. 994(u) (``If the Commission 
reduces the term of imprisonment recommended in the guidelines * * * it 
shall specify in what circumstances and by what amount sentences of 
prisoners * * * may be reduced.''). In carrying out its statutory duty 
to consider whether to give Amendment 750 retroactive effect, the 
Commission also considered the purpose of the underlying statutory 
changes made by the Act. Those statutory changes reflect congressional 
action consistent with the Commission's long-held position that the 
then-existing statutory penalty structure for crack cocaine 
``significantly undermines the various congressional objectives set 
forth in the Sentencing Reform Act and elsewhere'' (see USSG App. C, 
Amend. 706 (Reason for Amendment)). The Fair Sentencing Act of 2010 
specified in its statutory text that its purpose was to ``restore 
fairness to Federal cocaine sentencing'' and provide ``cocaine 
sentencing disparity reduction''. See 124 Stat. at 2372.
    It is important to note that the inclusion of Amendment 750 (Parts 
A and C) in 1B1.10(c) only allows the guideline changes to be 
considered for retroactive application; it does not make any of the 
statutory changes in the Fair Sentencing Act of 2010 retroactive.
    (2) The number of cases potentially involved is substantial, and 
the magnitude of the change in the guideline range is significant. As 
indicated in the Commission's analysis of cases potentially eligible 
for retroactive application of Parts A and C of Amendment 750, 
approximately 12,000 offenders would be eligible to seek a reduced 
sentence and the average sentence reduction would be approximately 23 
percent.
    (3) The administrative burdens of applying Parts A and C of 
Amendment 750 retroactively are manageable. This determination was 
informed by testimony at the Commission's June 1, 2011, public hearing 
on retroactivity and by other public comment received by the Commission 
on retroactivity. The Commission also considered the administrative 
burdens that were involved when its 2007 crack cocaine amendments were 
applied retroactively. See USSG App. C, Amendments 706 and 711 
(amending the guidelines applicable to crack cocaine, effective 
November 1, 2007) and Amendment 713 (expanding the listing in 1B1.10(c) 
to include Amendments 706 and 711 as

[[Page 41334]]

amendments that may be considered for retroactive application, 
effective March 3, 2008). The Commission received comment and testimony 
indicating that those burdens were manageable and that motions 
routinely were decided based on the filings, without the need for a 
hearing or the presence of the defendant, and did not constitute full 
resentencings. The Commission determined that applying Parts A and C of 
Amendment 750 would likewise be manageable, given that, among other 
things, significantly fewer cases would be involved. As indicated in 
the Commission's Preliminary Crack Cocaine Retroactivity Report (April 
2011 Data) regarding retroactive application of the 2007 crack cocaine 
amendments, approximately 25,500 offenders have requested a sentence 
reduction pursuant to retroactive application of the 2007 crack cocaine 
amendments and approximately 16,500 of those requests have been 
granted.
    In addition, public safety will be considered in every case because 
1B1.10 requires the court, in determining whether and to what extent a 
reduction in the defendant's term of imprisonment is warranted, to 
consider the nature and seriousness of the danger to any person or the 
community that may be posed by such a reduction. See 1B1.10, comment. 
(n.1(B)(ii)).
    Second, in light of public comment and testimony and recent case 
law, the amendment amends 1B1.10 to change the limitations that apply 
in cases in which the term of imprisonment was less than the minimum of 
the applicable guideline range at the time of sentencing. Under the 
amendment, the general limitation in subsection (b)(2)(A) continues to 
be that the court shall not reduce the defendant's term of imprisonment 
to a term that is less than the minimum of the amended guideline range. 
The amendment restricts the exception in subsection (b)(2)(B) to cases 
involving a government motion to reflect the defendant's substantial 
assistance to authorities (i.e., under 5K1.1 (Substantial Assistance to 
Authorities), 18 U.S.C. 3553(e), or Fed. R. Crim. P. 35(b)). For those 
cases, a reduction comparably less than the amended guideline range may 
be appropriate.
    The version of 1B1.10 currently in effect draws a different 
distinction for cases in which the term of imprisonment was less than 
the minimum of the applicable guideline range, one rule for downward 
departures (stating that ``a reduction comparably less than the amended 
guideline range * * * may be appropriate'') and another rule for 
variances (stating that ``a further reduction generally would not be 
appropriate''). See 1B1.10(b)(2)(B). The Commission has received public 
comment and testimony indicating that this distinction has been 
difficult to apply and has prompted litigation. The Commission has 
determined that, in the specific context of 1B1.10, a single limitation 
applicable to both departures and variances furthers the need to avoid 
unwarranted sentencing disparities and avoids litigation in individual 
cases. The limitation that prohibits a reduction below the amended 
guideline range in such cases promotes conformity with the amended 
guideline range and avoids undue complexity and litigation.
    Nonetheless, the Commission has determined that, in a case in which 
the term of imprisonment was below the guideline range pursuant to a 
government motion to reflect the defendant's substantial assistance to 
authorities (e.g., under 5K1.1), a reduction comparably less than the 
amended guideline range may be appropriate. Section 5K1.1 implements 
the directive to the Commission in its organic statute to ``assure that 
the guidelines reflect the general appropriateness of imposing a lower 
sentence than would otherwise be imposed * * * to take into account a 
defendant's substantial assistance in the investigation or prosecution 
of another person who has committed an offense.'' See 28 U.S.C. 994(n). 
For other provisions authorizing such a government motion, see 18 
U.S.C. 3553(e) (authorizing the court, upon government motion, to 
impose a sentence below a statutory minimum to reflect a defendant's 
substantial assistance); Fed. R. Crim. P. 35(b) (authorizing the court, 
upon government motion, to reduce a sentence to reflect a defendant's 
substantial assistance). The guidelines and the relevant statutes have 
long recognized that defendants who provide substantial assistance are 
differently situated than other defendants and should be considered for 
a sentence below a guideline or statutory minimum even when defendants 
who are otherwise similar (but did not provide substantial assistance) 
are subject to a guideline or statutory minimum. Applying this 
principle when the guideline range has been reduced and made available 
for retroactive application under section 3582(c)(2) appropriately 
maintains this distinction and furthers the purposes of sentencing.
    Third, the amendment amends the commentary to 1B1.10 to address an 
application issue. Circuits have conflicting interpretations about 
when, if at all, the court applies a departure provision before 
determining the ``applicable guideline range'' for purposes of 1B1.10. 
The First, Second, and Fourth Circuits have held that, for 1B1.10 
purposes, at least some departures (e.g., departures under 4A1.3 
(Departures Based on Inadequacy of Criminal History Category) (Policy 
Statement)) are considered before determining the applicable guideline 
range, while the Sixth, Eighth, and Tenth Circuits have held that ``the 
only applicable guideline range is the one established before any 
departures''. See United States v. Guyton, 636 F.3d 316, 320 (7th Cir. 
2011) (collecting and discussing cases; holding that departures under 
5K1.1 are considered after determining the applicable guideline range 
but declining to address whether departures under 4A1.3 are considered 
before or after). Effective November 1, 2010, the Commission amended 
1B1.1 (Application Instructions) to provide a three-step approach in 
determining the sentence to be imposed. See USSG App. C, Amend. 741 
(Reason for Amendment). Under 1B1.1 as so amended, the court first 
determines the guideline range and then considers departures. Id. (``As 
amended, subsection (a) addresses how to apply the provisions in the 
Guidelines Manual to properly determine the kinds of sentence and the 
guideline range. Subsection (b) addresses the need to consider the 
policy statements and commentary to determine whether a departure is 
warranted.''). Consistent with the three-step approach adopted by 
Amendment 741 and reflected in 1B1.1, the amendment adopts the approach 
of the Sixth, Eighth, and Tenth Circuits and amends Application Note 1 
to clarify that the applicable guideline range referred to in 1B1.10 is 
the guideline range determined pursuant to 1B1.1(a), which is 
determined before consideration of any departure provision in the 
Guidelines Manual or any variance.
    Fourth, the amendment adds an application note to 1B1.10 to specify 
that, consistent with subsection (a) of 1B1.11 (Use of Guidelines 
Manual in Effect on Date of Sentencing), the court shall use the 
version of 1B1.10 that is in effect on the date on which the court 
reduces the defendant's term of imprisonment as provided by 18 U.S.C. 
3582(c)(2). Finally, the amendment amends the commentary to 1B1.10 to 
refer to Dillon v. United States, 130 S. Ct. 2683 (2010). In Dillon, 
the Supreme Court concluded that proceedings under section 3582(c)(2) 
are not governed by United States v. Booker, 543 U.S. 220

[[Page 41335]]

(2005), and that 1B1.10 remains binding on courts in such proceedings.

[FR Doc. 2011-17640 Filed 7-12-11; 8:45 am]
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