[Federal Register Volume 77, Number 164 (Thursday, August 23, 2012)]
[Notices]
[Pages 51110-51113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20786]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of final action regarding technical and conforming 
amendments to federal sentencing guidelines effective November 1, 2012.

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SUMMARY: On April 30, 2012, the Commission submitted to the Congress 
amendments to the sentencing guidelines and official commentary, which 
become effective on November 1, 2012, unless Congress acts to the 
contrary. Such amendments and the reasons for amendment subsequently 
were published in the Federal Register. 77 FR 28225 (May 11, 2012). The 
Commission has made technical and conforming amendments, set forth in 
this notice, to commentary provisions and policy statements related to 
those amendments.

DATES: The Commission has specified an effective date of November 1, 
2012, for the amendments set forth in this notice.

FOR FURTHER INFORMATION CONTACT: Jeanne Doherty, Public Affairs 
Officer, (202) 502-4502.

[[Page 51111]]


SUPPLEMENTARY INFORMATION: The United States Sentencing Commission, an 
independent commission in the judicial branch of the United States 
government, is authorized by 28 U.S.C. 994(a) to promulgate sentencing 
guidelines and policy statements for federal courts. Section 994 also 
directs the Commission to review and revise periodically promulgated 
guidelines and authorizes it to submit guideline amendments to Congress 
not later than the first day of May each year. See 28 U.S.C. 994(o), 
(p). Absent an affirmative disapproval by Congress within 180 days 
after the Commission submits its amendments, the amendments become 
effective on the date specified by the Commission (typically November 1 
of the same calendar year). See 28 U.S.C. 994(p).
    Unlike amendments made to sentencing guidelines, amendments to 
commentary and policy statements may be made at any time and are not 
subject to congressional review. To the extent practicable, the 
Commission endeavors to include amendments to commentary and policy 
statements in any submission of guideline amendments to Congress. 
Occasionally, however, the Commission determines that technical and 
conforming changes to commentary and policy statements are necessary. 
This notice sets forth technical and conforming amendments to 
commentary and policy statements that will become effective on November 
1, 2012.

    Authority: USSC Rules of Practice and Procedure 4.1.

Patti B. Saris,
Chair.

    1. Amendment:
    The Commentary to Sec.  1B1.10 captioned ``Application Notes'' is 
amended in Note 4 by striking ``Application Note 10 to Sec.  2D1.1'' 
and inserting ``the Drug Equivalency Tables in the Commentary to Sec.  
2D1.1 (see Sec.  2D1.1, comment. (n.8))''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by renumbering Notes 1 through 29 according to the following 
table:

------------------------------------------------------------------------
          Before amendment                     After amendment
------------------------------------------------------------------------
                      1                                    1
                     17                                    2
                     13                                    3
                      2                                    4
                     12                                    5
                      5                                    6
                      6                                    7
                     10                                    8
                     11                                    9
                     15                                   10
                      3                                   11
                     18                                   12
                     23                                   13
                     25                                   14
                     26                                   15
                     27                                   16
                     28                                   17
                     19                                18(A)
                     20                                18(B)
                     29                                   19
                     21                                   20
                     24                                   21
                      8                                   22
                      7                                   23
                     22                                   24
                      4                                   25
                     14                                26(A)
                     16                                26(B)
                      9                                  26(C);
------------------------------------------------------------------------

and by rearranging those Notes, as so renumbered, to place them in 
proper numerical order.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'', as 
so renumbered and rearranged, is further amended by inserting headings 
at the beginning of certain notes, as follows (with Notes referred to 
by their new numbers):

------------------------------------------------------------------------
                                         Heading to be inserted at the
                 Note                              beginning
------------------------------------------------------------------------
1....................................  ``Mixture or Substance''.--
2....................................  ``Plant''.--
3....................................  Classification of Controlled
                                        Substances.--
4....................................  Applicability to ``Counterfeit''
                                        Substances.--
5....................................  Determining Drug Types and Drug
                                        Quantities.--
7....................................  Multiple Transactions or Multiple
                                        Drug Types.--
9....................................  Determining Quantity Based on
                                        Doses, Pills, or Capsules.--
10...................................  Determining Quantity of LSD.--
12...................................  Application of Subsection
                                        (b)(5).--
18...................................  Application of Subsection
                                        (b)(13).--
23...................................  Cases Involving Mandatory Minimum
                                        Penalties.--
25...................................  Cases Involving ``Small Amount of
                                        Marihuana for No
                                        Remuneration''.--
26...................................  Departure Considerations.--
26(A)................................  Downward Departure Based on Drug
                                        Quantity in Certain Reverse
                                        Sting Operations.--
26(B)................................  Upward Departure Based on Drug
                                        Quantity.--
26(C)................................  Upward Departure Based on
                                        Unusually High Purity.--
------------------------------------------------------------------------

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'', as 
so renumbered and rearranged and amended, is further amended as follows 
(with Notes referred to by their new numbers):
    In Note 8(A) by striking ``Note 5'' and inserting ``Note 6'';
    In Note 15 by redesignating (i), (ii), and (iii) as (A), (B), and 
(C), respectively;
    In Note 18(A) by inserting before the period at the end of the 
heading the following: ``(Subsection (b)(13)(A))''; and
    In Note 18(B) by inserting before the period at the end of the 
heading the following: ``(Subsection (b)(13)(C)B(D))'', by 
redesignating its component subdivision (A) (beginning ``Factors to 
Consider'') as (i), and that subdivision's component subdivisions (i) 
through (iv) as (I) through (IV), respectively, and by redesignating 
its component subdivision (B) (beginning ``Definitions'') as (ii).
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
by striking the fifth through eighth undesignated paragraphs as 
follows:
    ``The last sentence of subsection (a)(5) implements the directive 
to the Commission in section 7(1) of Public Law 111-220.
    Subsection (b)(2) implements the directive to the Commission in 
section 5 of Public Law 111-220.
    Subsection (b)(3) is derived from Section 6453 of the Anti-Drug 
Abuse Act of 1988.
    Frequently, a term of supervised release to follow imprisonment is 
required by statute for offenses covered by this guideline. Guidelines 
for the imposition, duration, and conditions of supervised release are 
set forth in Chapter Five, Part D (Supervised Release).'';
    In the paragraph beginning ``The dosage weight'' by striking ``111 
S.Ct. 1919'' and inserting ``500 U.S. 453''; and

[[Page 51112]]

    By inserting before the paragraph beginning ``Subsection (b)(11)'' 
the following:
    ``Frequently, a term of supervised release to follow imprisonment 
is required by statute for offenses covered by this guideline. 
Guidelines for the imposition, duration, and conditions of supervised 
release are set forth in Chapter Five, Part D (Supervised Release).
    The last sentence of subsection (a)(5) implements the directive to 
the Commission in section 7(1) of Public Law 111-220.
    Subsection (b)(2) implements the directive to the Commission in 
section 5 of Public Law 111-220.
    Subsection (b)(3) is derived from Section 6453 of the Anti-Drug 
Abuse Act of 1988.''.
    The Commentary to Sec.  2D1.6 captioned ``Application Note'' is 
amended in Note 1 by striking ``Note 12'' and inserting ``Note 5''.
    The Commentary to Sec.  2D1.11 captioned ``Application Notes'', as 
amended by Amendment 3 of the amendments submitted to Congress on April 
30, 2012, is further amended by renumbering Notes 1 through 9 according 
to the following table:

------------------------------------------------------------------------
          Before amendment                     After amendment
------------------------------------------------------------------------
                      4                                    1
                      1                                    2
                      5                                    3
                      6                                    4
                      7                                    5
                      8                                    6
                      9                                    7
                      2                                    8
                      3                                   9;
------------------------------------------------------------------------

and by rearranging those Notes, as so renumbered, to place them in 
proper numerical order.
    The Commentary to Sec.  2D1.11 captioned ``Application Notes'', as 
so renumbered and rearranged, is further amended by inserting headings 
at the beginning of certain notes, as follows (with Notes referred to 
by their new numbers):

------------------------------------------------------------------------
                                         Heading to be inserted at the
                 Note                              beginning
------------------------------------------------------------------------
2....................................  Application of Subsection
                                        (b)(1).--
3....................................  Application of Subsection
                                        (b)(2).--
4....................................  Application of Subsection
                                        (b)(3).--
8....................................  Application of Subsection
                                        (c)(1).--
9....................................  Offenses Involving Immediate
                                        Precursors or Other Controlled
                                        Substances Covered Under Sec.
                                        2D1.1.--
------------------------------------------------------------------------

    The Commentary to Sec.  2D1.11 captioned ``Application Notes'', as 
so renumbered and rearranged and amended, is further amended in Note 9 
(as so renumbered) by striking ``Note 12'' and inserting ``Note 5''.
    The Commentary to Sec.  5G1.2 captioned ``Application Notes'', as 
amended by Note 7 of the amendments submitted to Congress on April 30, 
2012, is further amended by amending Note 1 to read as follows:
    ``1. In General.--This section specifies the procedure for 
determining the specific sentence to be formally imposed on each count 
in a multiple-count case. The combined length of the sentences (`total 
punishment') is determined by the court after determining the adjusted 
combined offense level and the Criminal History Category and 
determining the defendant's guideline range on the Sentencing Table in 
Chapter Five, Part A (Sentencing Table).
    Note that the defendant's guideline range on the Sentencing Table 
may be affected or restricted by a statutorily authorized maximum 
sentence or a statutorily required minimum sentence not only in a 
single-count case, see Sec.  5G1.1 (Sentencing on a Single Count of 
Conviction), but also in a multiple-count case. See Note 3, below.
    Except as otherwise required by subsection (e) or any other law, 
the total punishment is to be imposed on each count and the sentences 
on all counts are to be imposed to run concurrently to the extent 
allowed by the statutory maximum sentence of imprisonment for each 
count of conviction.
    This section applies to multiple counts of conviction (A) contained 
in the same indictment or information, or (B) contained in different 
indictments or informations for which sentences are to be imposed at 
the same time or in a consolidated proceeding.
    Usually, at least one of the counts will have a statutory maximum 
adequate to permit imposition of the total punishment as the sentence 
on that count. The sentence on each of the other counts will then be 
set at the lesser of the total punishment and the applicable statutory 
maximum, and be made to run concurrently with all or part of the 
longest sentence. If no count carries an adequate statutory maximum, 
consecutive sentences are to be imposed to the extent necessary to 
achieve the total punishment.''.
    Section 5K2.0 is amended in subsection (d)(1) by striking ``the 
last sentence of 5K2.12 (Coercion and Duress), and 5K2.19 (Post-
Sentencing Rehabilitative Efforts)'' and inserting ``and the last 
sentence of 5K2.12 (Coercion and Duress)''.
    Reason for Amendment:
    This proposed amendment makes certain technical and conforming 
changes to commentary in the Guidelines Manual.
    First, it reorganizes the commentary to the drug trafficking 
guideline, Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, 
or Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy), so that the order of the application 
notes better reflects the order of the guidelines provisions to which 
they relate. The proposed amendment also makes stylistic changes to the 
Commentary to Sec.  2D1.1, such as by adding headings to certain 
application notes. To reflect the renumbering of application notes in 
Sec.  2D1.1, conforming changes are also made to the Commentary to 
Sec.  1B1.10 and Sec.  2D1.6.
    Second, it makes certain clerical and stylistic changes in 
connection with certain recently promulgated amendments. See 77 FR 
28226 (May 11, 2012). The clerical and stylistic changes are as 
follows:
    (1) Amendment 3 made revisions to Sec.  2D1.11 (Unlawfully 
Distributing, Importing, Exporting or Possessing a Listed Chemical; 
Attempt or Conspiracy). This proposed amendment reorganizes the 
commentary to Sec.  2D1.11 so that the order of the application notes 
better reflects the order of the guidelines provisions to which they 
relate. The proposed amendment also makes stylistic changes to the 
Commentary to Sec.  2D1.11 by adding headings to certain application 
notes.
    (2) Amendment 7 made revisions to Sec.  5G1.2 (Sentencing on 
Multiple Counts of Conviction), including a revision to Application 
Note 1. However, the amendatory instructions published in the Federal 
Register to implement those revisions included an erroneous 
instruction. This proposed amendment restates Application Note 1 in its

[[Page 51113]]

entirety to ensure that it conforms with the version of Application 
Note 1 that appears in the unofficial, ``reader-friendly'' version of 
Amendment 7 that the Commission made available in May 2012.
    (3) Amendment 8 repealed the policy statement at Sec.  5K2.19 
(Post-Sentencing Rehabilitative Efforts). However, a reference to that 
policy statement is contained in Sec.  5K2.0 (Grounds for Departure). 
This proposed amendment revises Sec.  5K2.0 to reflect the repeal of 
Sec.  5K2.19.

[FR Doc. 2012-20786 Filed 8-22-12; 8:45 am]
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