[Federal Register Volume 88, Number 85 (Wednesday, May 3, 2023)]
[Notices]
[Pages 28254-28282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09332]
[[Page 28253]]
Vol. 88
Wednesday,
No. 85
May 3, 2023
Part IV
United States Sentencing Commission
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Sentencing Guidelines for United States Courts; Notice
Federal Register / Vol. 88, No. 85 / Wednesday, May 3, 2023 /
Notices
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of submission to Congress of amendments to the
sentencing guidelines effective November 1, 2023, and request for
comment.
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SUMMARY: The United States Sentencing Commission hereby gives notice
that the Commission has promulgated amendments to the sentencing
guidelines, policy statements, commentary, and statutory index; and the
Commission requests comment regarding whether Parts A and B of
Amendment 8, relating to ``status points'' and certain offenders with
zero criminal history points, should be included in the Guidelines
Manual as an amendment that may be applied retroactively to previously
sentenced defendants. This notice sets forth the text of the amendments
and the reason for each amendment, and the request for comment
regarding Parts A and B of Amendment 8.
DATES: Effective Date of Amendments. The Commission has specified an
effective date of November 1, 2023, for the amendments set forth in
this notice.
Written Public Comment. Written public comment regarding
retroactive application of Parts A and B of Amendment 8, should be
received by the Commission not later than June 23, 2023. Any public
comment received after the close of the comment period may not be
considered.
ADDRESSES: There are two methods for submitting public comment.
Electronic Submission of Comments. Comments may be submitted
electronically via the Commission's Public Comment Submission Portal at
https://comment.ussc.gov. Follow the online instructions for submitting
comments.
Submission of Comments by Mail. Comments may be submitted by mail
to the following address: United States Sentencing Commission, One
Columbus Circle, NE, Suite 2-500, Washington, DC 20002-8002, Attention:
Public Affairs--Issue for Comment on Retroactivity.
FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs
Specialist, (202) 502-4597.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal 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 submits guideline
amendments to the Congress not later than the first day of May each
year pursuant to 28 U.S.C. 994(p). Absent action of the 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) Amendments to the Sentencing Guidelines, Policy Statements,
Official Commentary, and Statutory Index
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. Notice of the proposed
amendment was published in the Federal Register on February 2, 2023
(see 88 FR 7180). The Commission held public hearings on the proposed
amendments in Washington, DC, on February 23-24 and March 7-8, 2023. On
April 27, 2023, the Commission submitted the promulgated amendments to
the Congress and specified an effective date of November 1, 2023.
The text of the amendments to the sentencing guidelines, policy
statements, commentary, and statutory index, and the reason for each
amendment, is set forth below. Additional information pertaining to the
amendments described in this notice may be accessed through the
Commission's website at www.ussc.gov.
(2) Request for Comment on Parts A and B of Amendment 8, Relating to
``Status Points'' and Certain ``Zero-Point'' Offenders
This notice sets forth a request for comment regarding whether
Parts A and B of Amendment 8, relating to the impact of ``status
points'' at Sec. 4A1.1 ((Criminal History Category) and offenders with
zero criminal history points at new Sec. 4C1.1 (Adjustment for Certain
Zero-Point Offenders), should be included in subsection (d) 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 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(d). To the extent practicable,
public comment should address each of these factors.
Authority: 28 U.S.C. 994(a), (o), (p), and (u); USSC Rules of
Practice and Procedure 2.2, 4.1, and 4.1A.
Carlton W. Reeves,
Chair.
(1) Amendments to the Sentencing Guidelines, Policy Statements,
Official Commentary, and Statutory Index
1. Amendment: Section 1B1.13 is amended--
by inserting at the beginning the following new heading: ``(a) In
General.--'';
by striking ``Bureau of Prisons under'' and inserting ``Bureau of
Prisons or the defendant pursuant to'';
and by inserting at the end the following:
``(b) Extraordinary and Compelling Reasons.--Extraordinary and
compelling reasons exist under any of the following circumstances or a
combination thereof:
(1) Medical Circumstances of the Defendant.--
(A) The defendant is suffering from a terminal illness (i.e., a
serious and advanced illness with an end-of-life trajectory). A
specific prognosis of life expectancy (i.e., a probability of death
within a specific time period) is not required. Examples include
metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS),
end-stage organ disease, and advanced dementia.
(B) The defendant is--
(i) suffering from a serious physical or medical condition,
(ii) suffering from a serious functional or cognitive impairment,
or
(iii) experiencing deteriorating physical or mental health because
of the aging process,
that substantially diminishes the ability of the defendant to
provide self-care within the environment of a correctional facility and
from which he or she is not expected to recover.
(C) The defendant is suffering from a medical condition that
requires long-term or specialized medical care that is not being
provided and without which the defendant is at risk of serious
deterioration in health or death.
(D) The defendant presents the following circumstances--
(i) the defendant is housed at a correctional facility affected or
at
[[Page 28255]]
imminent risk of being affected by (I) an ongoing outbreak of
infectious disease, or (II) an ongoing public health emergency declared
by the appropriate federal, state, or local authority;
(ii) due to personal health risk factors and custodial status, the
defendant is at increased risk of suffering severe medical
complications or death as a result of exposure to the ongoing outbreak
of infectious disease or the ongoing public health emergency described
in clause (i); and
(iii) such risk cannot be adequately mitigated in a timely manner.
(2) Age of the Defendant.--The defendant (A) is at least 65 years
old; (B) is experiencing a serious deterioration in physical or mental
health because of the aging process; and (C) has served at least 10
years or 75 percent of his or her term of imprisonment, whichever is
less.
(3) Family Circumstances of the Defendant.--
(A) The death or incapacitation of the caregiver of the defendant's
minor child or the defendant's child who is 18 years of age or older
and incapable of self-care because of a mental or physical disability
or a medical condition.
(B) The incapacitation of the defendant's spouse or registered
partner when the defendant would be the only available caregiver for
the spouse or registered partner.
(C) The incapacitation of the defendant's parent when the defendant
would be the only available caregiver for the parent.
(D) The defendant establishes that circumstances similar to those
listed in paragraphs (3)(A) through (3)(C) exist involving any other
immediate family member or an individual whose relationship with the
defendant is similar in kind to that of an immediate family member,
when the defendant would be the only available caregiver for such
family member or individual. For purposes of this provision, `immediate
family member' refers to any of the individuals listed in paragraphs
(3)(A) through (3)(C) as well as a grandchild, grandparent, or sibling
of the defendant.
(4) Victim of Abuse.--The defendant, while in custody serving the
term of imprisonment sought to be reduced, was a victim of:
(A) sexual abuse involving a `sexual act,' as defined in 18 U.S.C.
2246(2) (including the conduct described in 18 U.S.C. 2246(2)(D)
regardless of the age of the victim); or
(B) physical abuse resulting in `serious bodily injury,' as defined
in the Commentary to Sec. 1B1.1 (Application Instructions);
that was committed by, or at the direction of, a correctional
officer, an employee or contractor of the Bureau of Prisons, or any
other individual who had custody or control over the defendant.
For purposes of this provision, the misconduct must be established
by a conviction in a criminal case, a finding or admission of liability
in a civil case, or a finding in an administrative proceeding, unless
such proceedings are unduly delayed or the defendant is in imminent
danger.
(5) Other Reasons.--The defendant presents any other circumstance
or combination of circumstances that, when considered by themselves or
together with any of the reasons described in paragraphs (1) through
(4), are similar in gravity to those described in paragraphs (1)
through (4).
(6) Unusually Long Sentence.--If a defendant received an unusually
long sentence and has served at least 10 years of the term of
imprisonment, a change in the law (other than an amendment to the
Guidelines Manual that has not been made retroactive) may be considered
in determining whether the defendant presents an extraordinary and
compelling reason, but only where such change would produce a gross
disparity between the sentence being served and the sentence likely to
be imposed at the time the motion is filed, and after full
consideration of the defendant's individualized circumstances.
(c) Limitation on Changes in Law.--Except as provided in subsection
(b)(6), a change in the law (including an amendment to the Guidelines
Manual that has not been made retroactive) shall not be considered for
purposes of determining whether an extraordinary and compelling reason
exists under this policy statement. However, if a defendant otherwise
establishes that extraordinary and compelling reasons warrant a
sentence reduction under this policy statement, a change in the law
(including an amendment to the Guidelines Manual that has not been made
retroactive) may be considered for purposes of determining the extent
of any such reduction.
(d) Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. 994(t),
rehabilitation of the defendant is not, by itself, an extraordinary and
compelling reason for purposes of this policy statement. However,
rehabilitation of the defendant while serving the sentence may be
considered in combination with other circumstances in determining
whether and to what extent a reduction in the defendant's term of
imprisonment is warranted.
(e) Foreseeability of Extraordinary and Compelling Reasons.--For
purposes of this policy statement, an extraordinary and compelling
reason need not have been unforeseen at the time of sentencing in order
to warrant a reduction in the term of imprisonment. Therefore, the fact
that an extraordinary and compelling reason reasonably could have been
known or anticipated by the sentencing court does not preclude
consideration for a reduction under this policy statement.''.
The Commentary to Sec. 1B1.13 captioned ``Application Notes'' is
amended--
by striking Notes 1 through 5 as follows:
``1. Extraordinary and Compelling Reasons.--Provided the defendant
meets the requirements of subdivision (2), extraordinary and compelling
reasons exist under any of the circumstances set forth below:
(A) Medical Condition of the Defendant.--
(i) The defendant is suffering from a terminal illness (i.e., a
serious and advanced illness with an end of life trajectory). A
specific prognosis of life expectancy (i.e., a probability of death
within a specific time period) is not required. Examples include
metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS),
end-stage organ disease, and advanced dementia.
(ii) The defendant is--
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment,
or
(III) experiencing deteriorating physical or mental health because
of the aging process,
that substantially diminishes the ability of the defendant to
provide self-care within the environment of a correctional facility and
from which he or she is not expected to recover.
(B) Age of the Defendant.--The defendant (i) is at least 65 years
old; (ii) is experiencing a serious deterioration in physical or mental
health because of the aging process; and (iii) has served at least 10
years or 75 percent of his or her term of imprisonment, whichever is
less.
(C) Family Circumstances.--
(i) The death or incapacitation of the caregiver of the defendant's
minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered
partner when the defendant would be the only available caregiver for
the spouse or registered partner.
(D) Other Reasons.--As determined by the Director of the Bureau of
Prisons, there exists in the defendant's case an
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extraordinary and compelling reason other than, or in combination with,
the reasons described in subdivisions (A) through (C).
2. Foreseeability of Extraordinary and Compelling Reasons.--For
purposes of this policy statement, an extraordinary and compelling
reason need not have been unforeseen at the time of sentencing in order
to warrant a reduction in the term of imprisonment. Therefore, the fact
that an extraordinary and compelling reason reasonably could have been
known or anticipated by the sentencing court does not preclude
consideration for a reduction under this policy statement.
3. Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. 994(t),
rehabilitation of the defendant is not, by itself, an extraordinary and
compelling reason for purposes of this policy statement.
4. Motion by the Director of the Bureau of Prisons.--A reduction
under this policy statement may be granted only upon motion by the
Director of the Bureau of Prisons pursuant to 18 U.S.C. 3582(c)(1)(A).
The Commission encourages the Director of the Bureau of Prisons to file
such a motion if the defendant meets any of the circumstances set forth
in Application Note 1. The court is in a unique position to determine
whether the circumstances warrant a reduction (and, if so, the amount
of reduction), after considering the factors set forth in 18 U.S.C.
3553(a) and the criteria set forth in this policy statement, such as
the defendant's medical condition, the defendant's family
circumstances, and whether the defendant is a danger to the safety of
any other person or to the community.
This policy statement shall not be construed to confer upon the
defendant any right not otherwise recognized in law.
5. Application of Subdivision (3).--Any reduction made pursuant to
a motion by the Director of the Bureau of Prisons for the reasons set
forth in subdivisions (1) and (2) is consistent with this policy
statement.'';
and by inserting the following new Notes 1 and 2:
``1. Interaction with Temporary Release from Custody Under 18
U.S.C. 3622 (`Furlough').--A reduction of a defendant's term of
imprisonment under this policy statement is not appropriate when
releasing the defendant under 18 U.S.C. 3622 for a limited time
adequately addresses the defendant's circumstances.
2. Notification of Victims.--Before granting a motion pursuant to
18 U.S.C. 3582(c)(1)(A), the Commission encourages the court to make
its best effort to ensure that any victim of the offense is reasonably,
accurately, and timely notified, and provided, to the extent
practicable, with an opportunity to be reasonably heard, unless any
such victim previously requested not to be notified.''.
The Commentary to Sec. 1B1.13 captioned ``Background'' is amended
by striking ``the Commission is authorized'' and inserting ``the
Commission is required''.
Reason for Amendment: This amendment responds to, among other
things, the First Step Act of 2018 (``First Step Act''), Public Law
115-391, 603(b), 132 Stat. 5194, 5239, which amended 18 U.S.C.
3582(c)(1)(A) to authorize courts to grant a motion for a sentence
reduction upon a defendant's own motion. Previously, a court was
authorized to do so only upon the motion of the Director of the Bureau
of Prisons (``BOP''). Congress amended the law for the express purpose,
set forth on the face of the enactment, of ``increasing the use'' of
sentence reduction motions under section 3582(c)(1)(A). First Step Act
Sec. 603(b).
Section 3582(c)(1)(A) authorizes a court to reduce a defendant's
term of imprisonment if ``extraordinary and compelling reasons''
warrant a reduction and ``such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.''
Congress directed the Commission to ``describe what should be
considered extraordinary and compelling reasons for sentence reduction,
including the criteria to be applied and a list of specific examples.''
Sentencing Reform Act of 1984 (``SRA''), Public Law 98-473, 98 Stat.
1987, 2023 (codified at 28 U.S.C. 994(t)). Congress also directed the
Commission to promulgate general policy statements regarding the
appropriate use of section 3582(c). 28 U.S.C. 994(a)(2)(C).
For more than 30 years, reductions pursuant to section
3582(c)(1)(A) could be granted only upon the motion of the BOP. BOP
filed such motions extremely rarely--the number of defendants receiving
relief averaged two dozen per year--and for the most part limited its
motions to cases involving inmates who were expected to die within a
year or were profoundly and irremediably incapacitated. U.S. Dep't of
Just., Off. of the Inspector Gen., The Federal Bureau of Prisons'
Compassionate Release Program, I-2013-006 1 & n.9 (2013).
Sentence reductions under section 3582(c)(1)(A) thus came to be
known as ``compassionate release,'' though that phrase appears nowhere
in the SRA and sentence reductions that do not result in immediate
release are authorized by the law. BOP's sparing use of its authority
persisted despite guidance from the Commission in 2007 that
``extraordinary and compelling reasons'' can be based on (a) the
medical condition of the defendant, (b) the age of the defendant, (c)
the defendant's family circumstances, and (d) reasons other than, or in
combination with, those three specified ones. USSG App. C, amend. 698
(effective Nov. 1, 2007).
In 2018, the First Step Act put an end to BOP's gatekeeping
function and allowed individuals to file motions for sentence
reductions under the statute. Because the Commission lost its quorum in
early 2019 and did not regain it until 2022, it was unable to amend
Sec. 1B1.13 during the more than four-year period since defendants
were first permitted to file such motions. During those years, courts
have found extraordinary and compelling reasons warranting sentence
reductions based on all of the factors the Commission identified in
2007, i.e., the three specified bases of medical condition, age, and
family circumstances, and the ``other reasons'' catchall. Commission
data indicate courts have hewed to the ``extraordinary and compelling''
requirement, see U.S. Sent'g Comm'n, Compassionate Release Data Report
(Dec. 2022), at tbls. 10, 12, & 14, and while they have found such
circumstances to be present in more cases than BOP had before the First
Step Act, they have been judicious in granting relief.
Among other things, the amendment extends the applicability of the
policy statement to defendant-filed motions; expands the list of
specified extraordinary and compelling reasons that can warrant
sentence reductions; retains the existing ``other reasons'' catchall;
provides specific guidance with regard to the permissible consideration
of changes in the law; and responds to case law that developed after
the enactment of the First Step Act.
The amendment is informed by Commission data, including its
analysis of the factors identified by courts in granting sentence
reduction motions in the years since the First Step Act was signed into
law. It is also informed by extensive public comment, including from
the Department of Justice, the Federal Public and Community Defenders,
the Commission's advisory groups, law professors, currently and
formerly incarcerated individuals, and other stakeholders in the
federal criminal justice system.
Applicability to Defendant-Filed Motions and Structural Revisions
The amendment revises Sec. 1B1.13(a) to reflect that a defendant
is now
[[Page 28257]]
authorized to file a motion under 18 U.S.C. 3582(c)(1)(A), making the
policy statement applicable to both defendant-filed and BOP-filed
motions.
The amendment also makes two structural changes to Sec. 1B1.13.
First, it moves the description of the permissible bases for a
reduction from the Commentary to the policy statement itself.
Second, the amendment moves Application Notes 2 and 3 into the body
of the policy statement as new subsections (e) and (d). Application
Note 3 previously provided that, pursuant to 28 U.S.C. 994(t),
rehabilitation of a defendant is not, by itself, an extraordinary and
compelling reason for purposes of Sec. 1B1.13. New subsection (d)
adopts this same language but adds, consistent with the plain language
of section 994(t) and courts' interpretations of it, that
rehabilitation of the defendant while incarcerated may be considered in
combination with other circumstances in determining whether
extraordinary and compelling reasons warrant a sentence reduction. See
U.S. Sent'g Comm'n, Compassionate Release Data Report (Dec. 2022),
tbls. 10, 12 & 14 (showing that courts have frequently considered
rehabilitation in connection with other factors when granting sentence
reduction motions). Application Note 2 provided that ``an extraordinary
and compelling reason need not have been unforeseen at the time of
sentencing in order to warrant a reduction in the term of
imprisonment.'' New subsection (e) retains this instruction without
change.
Revisions to ``Extraordinary and Compelling Reasons''
The amendment expands the list of specified extraordinary and
compelling reasons and retains the ``other reasons'' basis for a
sentence reduction to better account for and reflect the plain language
of section 3582(c)(1)(A), its legislative history, and decisions by
courts made in the absence of a binding policy statement.
The list of specified ``extraordinary and compelling reasons'' is
expanded by: (a) adding two new subcategories to the ``Medical
Circumstances of the Defendant'' ground for relief; (b) making three
modifications to the ``Family Circumstances'' ground; (c) adding a new
ground called ``Victim of Abuse''; and (d) adding a new ground called
``Unusually Long Sentence,'' which permits a judge to consider a non-
retroactive change in sentencing law as an extraordinary and compelling
reason in specified circumstances.
The first of the two new subcategories under ``Medical
Circumstances of the Defendant'' applies when a defendant is
``suffering from a medical condition that requires long-term or
specialized medical care that is not being provided'' and who, without
that care, ``is at risk of serious deterioration in health or death.''
The second applies when a defendant, due to personal health risk
factors and custodial status, is at increased risk of suffering severe
medical complications or death as a result of exposure to an ongoing
outbreak of infectious disease or public health emergency. The
amendment incorporates several factors courts considered during the
COVID-19 pandemic related to the defendant's individual health
circumstances, the level of risk at the defendant's facility, and the
ability to adequately mitigate the defendant's individualized risk. The
public health emergency prong requires that the emergency be declared
by the appropriate governmental authority. These new subcategories
reflect the medical circumstances not expressly identified in Sec.
1B1.13 that were most often cited by courts in granting sentence
reduction motions during the pandemic. See U.S. Sent'g Comm'n,
Compassionate Release Data Report (Dec. 2022) tbls. 10, 12 & 14.
The second modification to the list of specified extraordinary and
compelling reasons revises the ``Family Circumstances'' ground in three
ways. First, it expands the existing provision relating to the death or
incapacitation of the caregiver of a defendant's minor child to include
a child who is 18 years of age or older and incapable of self-care
because of a mental or physical disability or a medical condition. This
expansion reflects the Commission's determination that providing care
for a non-minor child with severe caretaking needs presents a
circumstance similar to providing care for a minor child, as some
courts have recognized. See, e.g., United States v. Barnes, No. 3:17-
cr-00011, 2021 WL 1269783, at *4 (S.D. Ind. Jan. 29, 2021) (granting a
sentence reduction to a defendant whose 21-year-old son had numerous
physical and mental disabilities that required 24-hour care, finding
these circumstances ``to be analogous to a minor child''). Second, the
amendment adds a new provision for cases in which a defendant's parent
is incapacitated and the defendant would be the only available
caregiver. Other than the relationships specified in the current policy
statement, a parent has been the family member most often identified as
needing care by courts granting sentence reductions under Sec.
3582(c)(1)(A). See U.S. Sent'g Comm'n, Compassionate Release: The
Impact of the First Step Act and COVID-19 Pandemic (2022), at 32; see
also United States v. Bucci, 409 F. Supp. 3d 1, 2 (D. Mass. 2019)
(concluding that there is ``no reason to discount'' a defendant's
caregiving role ``simply because the incapacitated family member is a
parent and not a spouse,'' registered partner, or minor child). The
third modification to the family circumstances ground for relief adds a
provision that applies when the defendant establishes that similar
circumstances exist with respect to a person whose relationship with
the defendant is similar in kind to that of an immediate family member,
and the defendant would be the only available caregiver. This provision
recognizes the diversity of family structures in America, and that
caretaking needs within all of those family structures may give rise to
equally extraordinary and compelling circumstances. The amendment
accords with decisions by courts after the First Step Act. See, e.g.,
United States v. Griffin, No. 1:95-cr-00751, 2020 WL 7295765, at *2-3
(S.D. Fla. Dec. 8, 2020) (granting release because the defendant was
``the only viable, adequate caregiver for his sister'' who had
significant cognitive impairment due to vascular dementia and stroke);
United States v. Reyes, No. 04-cr-970, 2020 WL 1663129, at *3 (N.D.
Ill. Apr. 3, 2020) (granting defendant relief to assist in caring for
his aunt with stage four cancer, recognizing ``non-traditional family
arrangements and the need for others in the family to contribute when a
relative is sick''). Relief is available under this subsection only if
the defendant establishes both the qualifying relationship and that the
defendant is the only available caregiver.
The third modification to the list of specified extraordinary and
compelling reasons adds a ground for relief at new subsection (b)(4)
(``Victim of Abuse''), which applies if a defendant has suffered sexual
or physical abuse that was committed by or at the direction of a
correctional officer, an employee or contractor of the BOP, or any
other individual having custody or control over the defendant. This
provision responds to the Department of Justice's (``DOJ'') suggestion
that a sentence reduction may be appropriate where an individual in BOP
custody has been determined to have been the victim of sexual assault
perpetrated by BOP personnel. Principal Assoc. Deputy Att'y Gen.
Working Grp. of DOJ Components, Dep't of Just., Report and
[[Page 28258]]
Recommendations Concerning the Department of Justice's Response to
Sexual Misconduct by Employees of the Bureau of Prisons 22 (2022); see
also Staff of Permanent S. Subcomm. on Investigations, 117th Cong.,
Rep. on Sexual Abuse of Female Inmates in Federal Prisons (Comm. Print
2022) (summarizing results of investigation into sexual abuse of
federal prisoners in BOP custody). New subsection (b)(4) is limited to
instances in which the defendant was a victim of either (a) sexual
abuse involving a ``sexual act,'' as defined in 18 U.S.C. 2246(2)
(including the conduct described in 18 U.S.C. 2246(2)(D) regardless of
the age of the victim); or (b) physical abuse resulting in ``serious
bodily injury,'' as defined at Sec. 1B1.1, while in custody serving
the term of imprisonment sought to be reduced. New subsection (b)(4)
provides that the misconduct must be established by a conviction in a
criminal case, a finding or admission of liability in a civil case, or
a finding in an administrative proceeding, unless the defendant
establishes that such proceedings are unduly delayed or the defendant
is in imminent danger.
Apart from the specified extraordinary and compelling reasons, the
amendment retains the ``Other Reasons'' catchall ground currently found
in Application Note 1(D). It also makes clear that extraordinary and
compelling reasons exist if the defendant presents any other
circumstance or combination of circumstances that, considered by
themselves or together with any of the reasons specified in paragraphs
(1) through (4), are similar in gravity to those described in
paragraphs (1) through (4). The Commission considered but specifically
rejected a requirement that ``other reasons'' be similar in nature and
consequence to the specified reasons. Rather, they need be similar only
in gravity, a requirement that inheres in the statutory requirement
that they present extraordinary and compelling reasons for a sentence
reduction. See 18 U.S.C. 3582(c)(1)(A).
The Commission recognized that during the period between the
enactment of the First Step Act in 2018 and this amendment, district
courts around the country based sentence reductions on dozens of
reasons and combinations of reasons. Based on a careful review of those
cases, the Commission continues to believe what is stated in
Application Note 4 to the current policy statement, i.e., that judges
are ``in a unique position to determine whether the circumstances
warrant a reduction.'' Guidance beyond that provided in the amended
policy statement regarding what circumstances or combination of
circumstances are sufficiently extraordinary and compelling to warrant
a reduction in sentence is best provided by reviewing courts, rather
than through an effort by the Commission to predict and specify in
advance all of the grounds on which relief may be appropriate.
The fifth modification to the list of specified extraordinary and
compelling reasons appears in new subsection (b)(6) (``Unusually Long
Sentence'') and permits non-retroactive changes in law (other than non-
retroactive amendments to the Guidelines Manual) to be considered
extraordinary and compelling reasons warranting a sentence reduction,
but only in narrowly circumscribed circumstances. Specifically, where
(a) the defendant is serving an unusually long sentence; (b) the
defendant has served at least ten years of the sentence; and (c) an
intervening change in the law has produced a gross disparity between
the sentence being served and the sentence likely to be imposed at the
time the motion is filed, the change in law can qualify as an
extraordinary and compelling reason after the court has fully
considered the defendant's individualized circumstances.
One of the expressed purposes of section 3582(c)(1)(A) when it was
enacted in 1984 was to provide a narrow avenue for judicial relief from
unusually long sentences. S. Rep. No. 98-225 (1983). Having abolished
parole in the interest of certainty in sentencing, Congress recognized
the need for such judicial authority. In effect, it replaced opaque
Parole Commission review of every federal sentence with a transparent,
judicial authority to consider reducing only a narrow subset of
sentences--those presenting ``extraordinary and compelling'' reasons
for a reduction.
Subsections (b)(6) and (c) operate together to respond to a circuit
split concerning when, if ever, non-retroactive changes in law may be
considered as extraordinary and compelling reasons within the meaning
of section 3582(c)(1)(A). Compare United States v. Ruvalcaba, 26 F.4th
14, 16, 26-28 (1st Cir. 2022) (holding that non-retroactive changes in
sentencing law may be considered in light of a defendant's particular
circumstances), United States v. McCoy, 981 F.3d 271, 286-88 (4th Cir.
2020) (same), United States v. Chen, 48 F.4th 1092, 1098 (9th Cir.
2022) (same), and United States v. McGee, 992 F.3d 1035, 1047-48 (10th
Cir. 2021) (same), with United States v. Andrews, 12 F.4th 255, 260-62
(3d Cir. 2021), cert. denied, 142 S. Ct. 1446 (2022) (holding that non-
retroactive changes in law are not permissible considerations), United
States v. McMaryion, 64 F.4th 257, 259-60 (5th Cir. 2023) (same),
United States v. McCall, 56 F.4th 1048, 1061 (6th Cir. 2022) (en banc)
(same), United States v. King, 40 F.4th 594, 595 (7th Cir. 2022)
(same), United States v. Crandall, 25 F.4th 582, 585-86 (8th Cir. 2022)
(same), and United States v. Jenkins, 50 F.4th 1185, 1198, 1198 (DC
Cir. 2022) (same).
The Commission considered whether the foregoing split among the
circuit courts of appeals was properly addressed by the Commission,
which typically resolves such disagreements when they relate to its
guidelines or policy statements, see Braxton v. United States, 500 U.S.
344 (1991), or by the Supreme Court. In making that determination, the
Commission was influenced by the fact that on several occasions the
Department of Justice successfully opposed Supreme Court review of the
issue on the ground that it should be addressed first by the
Commission. See, e.g., Brief For the United States in Opposition to
Grant of Certiorari, Jarvis v. United States, No. 21-568, 2021 WL
5864543 (U.S. Dec. 8, 2021); Memorandum For the United States in
Opposition to Grant of Certiorari, Watford v. United States, No. 21-
551, 2021 WL 5983234 (U.S. Dec. 15, 2021); Memorandum For the United
States in Opposition to Grant of Certiorari, Williams v. United States,
No. 21-767, 2022 WL 217947 (U.S. Jan. 24, 2022); Memorandum For the
United States in Opposition to Grant of Certiorari, Thacker v. United
States, No. 21-877, 2022 WL 467984 (U.S. Feb. 14, 2022).
The amendment agrees with the circuits that authorize a district
court to consider non-retroactive changes in the law as extraordinary
and compelling circumstances warranting a sentence reduction but adopts
a tailored approach that narrowly limits that principle in multiple
ways. First, it permits the consideration of such changes only in cases
involving ``unusually long sentences,'' which the legislative history
to the SRA expressly identified as a context in which sentence
reduction authority is needed. See S. Rep. No. 98-225, at 55 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3238-39. (``The Committee believes
that there may be unusual cases in which the eventual reduction in the
length of a term of imprisonment is justified by changed circumstances.
These would include cases of severe illness, cases in which other
extraordinary and compelling circumstances justify a reduction of an
unusually long
[[Page 28259]]
sentence, and some cases in which the sentencing guidelines for the
offense of which the defender [sic] was convicted have been later
amended to prove a shorter term of imprisonment.''). Second, the change
in law itself may be considered an extraordinary and compelling reason
only where it would produce a gross disparity between the length of the
sentence being served and the sentence likely to be imposed at the time
the motion is filed. Finally, to address administrative concerns raised
by some commenters, the amendment limits the application of this
provision to individuals who have served at least 10 years of the
sentence the motion seeks to reduce. Commission data show that between
fiscal year 2013 and fiscal year 2022, fewer than 12 percent (11.5%) of
all offenders were sentenced to a term of imprisonment of ten years or
longer.
Subsection (b)(6) excludes from consideration as extraordinary and
compelling reasons warranting a reduction in sentence changes to the
Guidelines Manual that the Commission has not made retroactive. Public
comment requested that the Commission clarify the interaction between
Sec. 1B1.13 and Sec. 1B1.10, and the Commission determined that
excluding non-retroactive changes to the guidelines from consideration
as extraordinary and compelling reasons was consistent with Sec.
1B1.10 and the Supreme Court's decision in Dillon v. United States, 560
U.S. 817 (2010).
To more fully address the proper role of changes in law in this
context, the amendment also adds a new subsection (c) to the policy
statement. Whereas subsection (b)(6) narrowly limits the circumstances
in which a non-retroactive change in the law can constitute an
extraordinary and compelling reason that itself can warrant a reduction
in sentence, subsection (c) of the amended policy statement governs the
use of changes in the law in cases where a defendant ``otherwise
establishes that extraordinary and compelling reasons warrant a
sentence reduction.'' In those circumstances, all changes in law,
including non-retroactive amendments to the Guidelines Manual, may
properly be considered in determining the extent of a sentencing
reduction. For example, a defendant's motion may present the following
circumstances: (a) commendable rehabilitation while incarcerated; (b)
the offense conduct occurred when the defendant was in his late teens
or early twenties; and (c) pursuant to intervening legislation or
intervening Guidelines amendments, the sentence likely to be imposed at
the time of the motion would be lower than the sentence being served,
but not grossly so. In those circumstances, the change in law could not
properly be considered an extraordinary and compelling reason
warranting a reduction in sentence. However, if the court determines
that the combination of the other two factors constitutes an
extraordinary and compelling reason, the change in law is among the
broad array of factors that may properly be considered in determining
the extent of any such reduction. This aspect of the amendment is fully
consistent with Concepcion v. United States, 142 S. Ct. 2389 (2022).
Finally, the requirements in subsection (b)(6) that the defendant
be serving an unusually long sentence and have served at least ten
years of such sentence are not applicable to cases not covered by that
subsection. Those requirements apply only when a defendant seeks to
have a non-retroactive change in law itself be considered an
extraordinary and compelling reason warranting a reduction in sentence.
New Application Notes Regarding Interaction With 18 U.S.C. 3622 and
Notification of Victims
The amendment also adds two new application notes to the Commentary
to Sec. 1B1.13. New Application Note 1 provides that a reduction under
this policy statement is not appropriate when temporary release under
18 U.S.C. 3622 (a furlough granted by the Bureau of Prisons)
``adequately addresses'' the defendant's circumstances. This new
application note responds to public comment, including comment from the
Criminal Law Committee for the Judicial Conference of the United
States, urging the Commission to clarify that this policy statement is
not intended to address temporary medical or family circumstances that
a BOP-granted furlough adequately addresses.
New Application Note 2 ``encourages the court to make its best
effort to ensure that any victim of the offense is reasonably,
accurately, and timely notified, and provided, to the extent
practicable, with an opportunity to be reasonably heard, unless any
such victim previously requested not to be notified.'' Although Sec.
3582(c)(1)(A) does not require a court to conduct a public court
proceeding before resolving a motion, and in many cases the passage of
time can make victim identification and notification difficult, the
Commission encourages the court to make its best effort to notify any
victims and, to the extent public court proceedings are held, afford
them an opportunity to be heard, unless the victim previously requested
not to be notified.
Conforming Changes
Finally, as conforming changes, the amendment deletes Application
Notes 4 and 5 and makes a minor technical change to the Background
Commentary. Application Note 4 reflected that only the Bureau of
Prisons could file a motion under 18 U.S.C. 3582(c)(1)(A) before the
First Step Act and, as such, ``encourage[d] the Director of the Bureau
of Prisons to file such a motion.'' Application Note 5 provided that
``[a]ny reduction made pursuant to a motion by the Director of the
Bureau of Prisons for the reasons set forth in subdivisions (1) and (2)
is consistent with this policy statement.'' These two application notes
were deleted because a motion by the Director of the Bureau of Prisons
is no longer required after the enactment of the First Step Act. The
Background Commentary is also amended to reflect that the Commission is
``required,'' as opposed to ``authorized,'' to ``describe what should
be considered extraordinary and compelling reasons for sentence
reduction.''
2. Amendment: The Commentary to Sec. 2A2.4 captioned ``Statutory
Provisions'' is amended by striking ``18 U.S.C. Sec. Sec. 111'' and
inserting ``18 U.S.C. Sec. Sec. 40A, 111''.
Section 2A5.2 is amended in the heading by striking ``Vehicle'' and
inserting ``Vehicle; Unsafe Operation of Unmanned Aircraft''.
The Commentary to Sec. 2A5.2 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. Sec. 1992(a)(1)'' and inserting ``18
U.S.C. Sec. 39B, 1992(a)(1)''.
The Commentary to Sec. 2B1.1 captioned ``Statutory Provisions'' is
amended by striking ``7 U.S.C. Sec. 6, 6b, 6c, 6h, 6o, 13, 23; 15
U.S.C. Sec. 50, 77e, 77q, 77x, 78j, 78ff, 80b-6, 1644, 6821; 18 U.S.C.
Sec. 38, 225, 285-289, 471-473, 500, 510, 553(a)(1), 641, 656, 657,
659, 662, 664, 1001-1008, 1010-1014, 1016-1022, 1025, 1026, 1028, 1029,
1030(a)(4)-(5), 1031, 1037, 1040, 1341-1344, 1348, 1350, 1361, 1363,
1369, 1702, 1703 (if vandalism or malicious mischief, including
destruction of mail, is involved), 1708, 1831, 1832, 1992(a)(1),
(a)(5), 2113(b), 2282A, 2282B, 2291, 2312-2317, 2332b(a)(1), 2701; 19
U.S.C. Sec. 2401f; 29 U.S.C. Sec. 501(c); 42 U.S.C. Sec. 1011; 49
U.S.C. 14915, 30170, 46317(a), 60123(b)'', and inserting ``5 U.S.C.
Sec. Sec. 8345a, 8466a; 7 U.S.C. Sec. 6, 6b, 6c, 6h, 6o, 13, 23; 15
U.S.C. Sec. Sec. 50, 77e, 77q, 77x, 78j, 78ff, 80b-6, 1644, 6821; 18
U.S.C. Sec. 38, 220, 225, 285-289, 471-473, 500, 510, 553(a)(1), 641,
656, 657, 659, 662, 664, 1001-1008, 1010-1014,
[[Page 28260]]
1016-1022, 1025, 1026, 1028, 1029, 1030(a)(4)-(5), 1031, 1037, 1040,
1341-1344, 1348, 1350, 1361, 1363, 1369, 1702, 1703 (if vandalism or
malicious mischief, including destruction of mail, is involved), 1708,
1831, 1832, 1992(a)(1), (a)(5), 2113(b), 2282A, 2282B, 2291, 2312-2317,
2332b(a)(1), 2701; 19 U.S.C. Sec. 2401f; 20 U.S.C. 1097(a), (b), (d),
(e); 29 U.S.C. 501(c); 42 U.S.C. Sec. 1011; 49 U.S.C. Sec. 14915,
30170, 46317(a), 60123(b)''.
The Commentary to Sec. 2B4.1 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. Sec. 215'' and inserting ``18 U.S.C.
Sec. 215, 220''.
Section 2G1.1(b)(1)(B) is amended by striking ``the offense
involved fraud or coercion'' and inserting ``(i) the offense involved
fraud or coercion; or (ii) the offense of conviction is 18 U.S.C.
Sec. Sec. 2421A(b)(2)''.
The Commentary to Sec. 2G1.1 captioned ``Statutory Provisions'' is
amended by striking ``2422(a) (only if the offense involved a victim
other than a minor)'' and inserting ``2421A (only if the offense
involved a victim other than a minor), 2422(a) (only if the offense
involved a victim other than a minor). For additional statutory
provision(s), see Appendix A (Statutory Index)''.
Section 2G1.3(b) is amended--
in paragraph (3) by striking ``increase by 2 levels'' and inserting
``increase by 2 levels. Provided, however, that subsection (b)(3)(B)
shall not apply if the offense of conviction is 18 U.S.C. Sec.
2421A'';
and in paragraph (4) by striking ``If (A) the offense involved the
commission of a sex act or sexual contact; or (B) subsection (a)(3) or
(a)(4) applies and the offense involved a commercial sex act, increase
by 2 levels.'', and inserting the following:
``(Apply the greater):
(A) If (i) the offense involved the commission of a sex act or
sexual contact; or (ii) subsection (a)(3) or (a)(4) applies and the
offense involved a commercial sex act, increase by 2 levels.
(B) If (i) subsection (a)(4) applies; and (ii) the offense of
conviction is 18 U.S.C. Sec. Sec. 2421A(b)(2), increase by 4
levels.''.
The Commentary to Sec. 2G1.3 captioned ``Statutory Provisions'' is
amended by striking ``2422 (only if the offense involved a minor),
2423, 2425'' and inserting ``2421A (only if the offense involved a
minor), 2422 (only if the offense involved a minor), 2423, 2425. For
additional statutory provision(s), see Appendix A (Statutory Index)''.
The Commentary to Sec. 2H3.1 captioned ``Statutory Provisions'' is
amended by striking ``47 U.S.C. Sec. 605'' and inserting ``44 U.S.C.
Sec. 3572; 47 U.S.C. Sec. 605''.
The Commentary to Sec. 2N1.1 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. Sec. 1365(a), (e)'' and inserting ``18
U.S.C. Sec. 1365(a), (e); 21 U.S.C. 333(b)(7). For additional
statutory provision(s), see Appendix A (Statutory Index)''.
The Commentary to Sec. 2N2.1 captioned ``Statutory Provisions'' is
amended by striking ``333(a)(1), (a)(2), (b)'' and inserting
``333(a)(1), (a)(2), (b)(1)-(6), (b)(8)''.
The Commentary to Sec. 2S1.3 captioned ``Statutory Provisions'' is
amended by striking ``5332'' and inserting ``5332, 5335, 5336''.
The Commentary to Sec. 2X5.2 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. Sec. 1365(f), 1801; 34 U.S.C. Sec.
12593; 49 U.S.C. Sec. 31310.'' and inserting ``10 U.S.C. Sec.
2733a(g)(2); 18 U.S.C. Sec. 39B, 1365(f), 1801, 2259(d)(4); 34 U.S.C.
Sec. 12593; 49 U.S.C. Sec. 31310. For additional statutory
provision(s), see Appendix A (Statutory Index).''.
Appendix A (Statutory Index) is amended--
by inserting before the line referenced to 7 U.S.C. 6 the following
new line references:
``5 U.S.C. Sec. 8345a 2B1.1
5 U.S.C. Sec. 8466a 2B1.1'';
by inserting before the line referenced to 12 U.S.C. Sec. 631 the
following new line reference:
``10 U.S.C. Sec. 2733a(g)(2) 2X5.2'';
by inserting before the line referenced to 18 U.S.C. Sec. 43 the
following new line references:
``18 U.S.C. Sec. 39B 2A5.2, 2X5.2
18 U.S.C. Sec. 40A 2A2.4'';
by inserting before the line referenced to 18 U.S.C. Sec. 224 the
following new line reference:
``18 U.S.C. Sec. 220 2B1.1, 2B4.1'';
by inserting before the line referenced to 18 U.S.C. Sec. 2260(a)
the following new line reference:
``18 U.S.C. Sec. 2259(d)(4) 2X5.2'';
by inserting before the line referenced to 18 U.S.C. Sec. 2320 the
following new line reference:
``18 U.S.C. Sec. 2319C 2B5.3'';
by inserting before the line referenced to 18 U.S.C. Sec. 2422 the
following new line reference:
``18 U.S.C. Sec. 2421A 2G1.1, 2G1.3'';
by inserting before the line referenced to 21 U.S.C. Sec. 101 the
following new line reference:
``20 U.S.C. Sec. 1097(e) 2B1.1'';
by inserting before the line referenced to 21 U.S.C. Sec. 458 the
following new line reference:
``21 U.S.C. Sec. 333(b)(8) 2N2.1'';
by inserting before the line referenced to 31 U.S.C. Sec. 5363 the
following new line references:
``31 U.S.C. Sec. 5335 2S1.3
31 U.S.C. Sec. 5336 2S1.3'';
and by inserting before the line referenced to 45 U.S.C. Sec.
359(a) the following new line reference:
``44 U.S.C. Sec. 3572 2H3.1''.
Reason for Amendment: This multi-part amendment responds to
recently enacted legislation.
FDA Reauthorization Act of 2017
First, the amendment amends Appendix A (Statutory Index) to
reference a new offense for counterfeit drugs at 21 U.S.C. 333(b)(8)
(Penalties [for violations of the Federal Food, Drug, and Cosmetic Act
(FDCA)]) to Sec. 2N2.1 (Violations of Statutes and Regulations Dealing
With Any Food, Drug, Biological Product, Device, Cosmetic, Agricultural
Product, or Consumer Product) in response to the FDA Reauthorization
Act of 2017, Public Law 115-52 (Aug. 18, 2017). The Act added
subsection 333(b)(8), which provides that the statutory maximum term of
imprisonment is ten years for a violation of 21 U.S.C. 331(i)(3)
(Prohibited acts [under the FDCA]). Subsection 331(i)(3) prohibits
causing a drug to be counterfeited, or making, selling, dispensing, or
holding for sale or dispensing, a counterfeit drug. The Commission
determined that Sec. 2N2.1 is the most appropriate guideline to which
to reference this offense because Sec. 2N2.1 covers similar penalty
provisions at section 333.
Allow States and Victims To Fight Online Sex Trafficking Act
Second, the amendment amends Sec. Sec. 2G1.1 (Promoting a
Commercial Sex Act or Prohibiting Sexual Conduct with an Individual
Other than a Minor) and 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) in response to the Allow States and Victims
to Fight Online Sex Trafficking Act of 2017, Public Law 115-164 (Apr.
11, 2017). The Act added a new offense at 18 U.S.C. 2421A(a) (Promotion
or facilitation of prostitution and reckless disregard of sex
trafficking) which prohibits owning, managing, or operating an
interactive computer service with the intent to promote or
[[Page 28261]]
facilitate prostitution. Section 2421A has a statutory maximum term of
imprisonment of ten years. The Act included an aggravated offense at
subsection 2421A(b)(2) if the offender commits an offense under
subsection 2421A(a) while acting in reckless disregard of the fact that
such conduct contributed to sex trafficking in violation of 18 U.S.C.
1591(a) (Sex trafficking of children or by force, fraud, or coercion).
Offenses under section 1591(a) that involve force, fraud, coercion, or
minors have statutory mandatory minimum terms of imprisonment of at
least ten years and statutory maximum terms of imprisonment of life.
Offenses under subsection 2421A(b)(2) have a 25-year statutory maximum
term of imprisonment to reflect the serious nature of the sex
trafficking conduct in violation of section 1591(a). To reflect the
statutory maximum term of imprisonment at subsection 2421A(b)(2), the
amendment amends the 4-level enhancement at Sec. 2G1.1(b)(1)(B) and
adds a new 4-level enhancement at Sec. 2G1.3(b)(4)(B) that apply if
the offense of conviction is 18 U.S.C. 2421A(b)(2). The amendment also
amends Sec. 2G1.3(b)(3) to provide that Sec. 2G1.3(b)(3)(B) shall not
apply if the offense of conviction is 18 U.S.C. 2421A because the use
of a computer is already accounted for in the base offense level.
FAA Reauthorization Act of 2018
Third, the amendment amends Appendix A to reference new offenses in
the FAA Reauthorization Act of 2018, Public Law 115-254 (Oct. 5, 2018).
The new offense at 18 U.S.C. 39B (Unsafe operation of unmanned
aircraft) is referenced to Sec. 2A5.2 (Interference with Flight Crew
Member or Flight Attendant; Interference with Dispatch, Navigation,
Operation, or Maintenance of Mass Transportation Vehicle) and Sec.
2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense
Guideline)). Section 39B prohibits the knowing or reckless unsafe
operation of drones that interfere with the safe operation of an
aircraft carrying one or more persons or operated in close proximity to
an airport runway. Section 39B has a statutory maximum term of
imprisonment of one year. The statutory maximum term of imprisonment
for reckless violations that cause serious bodily injury or death is
ten years, and for knowing violations that cause serious bodily injury
or death is any term of years or life. The Commission determined that
Sec. 2A5.2 is the most appropriate guideline to which to reference
felony violations of section 39B because it covers conduct interfering
with the operation of aircraft. Additionally, providing a reference to
Sec. 2X5.2 is consistent with Commission practice relating to new
misdemeanor offenses.
The FAA Reauthorization Act also added a new offense at 18 U.S.C.
40A (Operation of unauthorized unmanned aircraft over wildfires) which
is referenced in Appendix A to Sec. 2A2.4 (Obstructing or Impeding
Officers). Section 40A prohibits operating a drone in a manner that
interferes with wildfire suppression or with law enforcement or
emergency response efforts related to wildfire suppression. Section 40A
has a statutory maximum term of imprisonment of two years. The
Commission determined that Sec. 2A2.4 is the most appropriate
guideline to which to reference this offense because it covers conduct
involving interfering with and obstructing or impeding officers.
SUPPORT for Patients and Communities Act
Fourth, the amendment amends Appendix A to reference a new offense
at 18 U.S.C. 220 (Illegal remunerations for referrals to recovery
homes, clinical treatment facilities, and laboratories) to Sec. Sec.
2B1.1 (Theft, Property Destruction, and Fraud) and 2B4.1 (Bribery in
Procurement of Bank Loan and Other Commercial Bribery) in response to
the Substance Use-Disorder Prevention that Promotes Opioid Recovery and
Treatment for Patients and Communities Act (``the SUPPORT for Patients
and Communities Act''), Public Law 115-271 (Oct. 24, 2018). Section 220
prohibits soliciting, receiving, paying, or offering any remuneration,
including kickbacks, bribes, or rebates, for referring patients to a
facility covered by a health care benefit program. Section 220 has a
statutory maximum term of imprisonment of ten years. The Commission
determined that Sec. Sec. 2B1.1 and 2B4.1 are the most appropriate
guidelines to which to reference this offense because both guidelines
cover conduct involving kickbacks and bribery.
Amy, Vicky, and Andy Child Pornography Victim Assistance Act
Fifth, the amendment amends Appendix A to reference a new offense
at 18 U.S.C. 2259(d) (Mandatory restitution [for child pornography
victims]) to Sec. 2X5.2 in response to the Amy, Vicky, and Andy Child
Pornography Victim Assistance Act, Public Law 115-299 (Dec. 7, 2018).
Subsection 2259(d) prohibits attorneys from charging fees in excess of
15 percent when representing a child pornography victim who receives
``defined monetary assistance'' from the Child Pornography Victims
Reserve and provides for a statutory maximum term of imprisonment of
one year. Providing a reference to Sec. 2X5.2 is consistent with
Commission practice relating to new misdemeanor offenses.
Foundations for Evidence-Based Policymaking Act
Sixth, the amendment amends Appendix A to reference a new offense
at 44 U.S.C. 3572 (Confidential information protection) to Sec. 2H3.1
(Interception of Communications; Eavesdropping; Disclosure of Certain
Private or Protected Information) in response to the Confidential
Information Protection and Statistical Efficiency Act, part of the
Foundations for Evidence-Based Policymaking Act of 2018, Public Law
115-435 (Jan. 14, 2019).
Section 3572 prohibits the unauthorized disclosure of information
collected by an agency under a pledge of confidentiality for
exclusively statistical purposes or using the information for other
than statistical purposes. Section 3572 has a statutory maximum term of
imprisonment of five years. The Commission determined that Sec. 2H3.1
is the most appropriate guideline to which to reference this offense
because it covers conduct involving the unauthorized disclosure of
information.
National Defense Authorization Act for Fiscal Year 2020
Seventh, the amendment amends Appendix A to reference a new offense
at 10 U.S.C. 2733a (Armed Forces; Medical malpractice claims by members
of the uniformed services) to Sec. 2X5.2 in response to the National
Defense Authorization Act for Fiscal Year 2020, Public Law 116-92 (Dec.
20, 2019). Section 2733a prohibits attorneys from charging fees in
excess of 20 percent when representing a member of the uniformed
services who receives a payment under section 2733a for medical
malpractice caused by a health care provider of the Department of
Defense. Section 2733a has a statutory maximum term of imprisonment of
one year. Providing a reference to Sec. 2X5.2 is consistent with
Commission practice relating to new misdemeanor offenses.
Representative Payee Fraud Prevention Act
Eighth, the amendment amends Appendix A to reference two new
offenses at 5 U.S.C. 8345a (Government Organization and Employees;
Embezzlement or conversion of
[[Page 28262]]
payments) and 8466a (Embezzlement or conversion of payments) to Sec.
2B1.1 in response to the Representative Payee Fraud Prevention Act of
2019, Public Law 116-126 (Mar. 18, 2020). Sections 8345a and 8466a
prohibit representative payees of minors or other individuals under a
legal disability from embezzling or converting retirement payments
under the Civil Service Retirement System or the Federal Employees'
Retirement System. The statutory maximum term of imprisonment for both
sections is five years. The Commission determined that Sec. 2B1.1 is
the most appropriate guideline to which to reference these offenses
because it covers conduct involving similar financial fraud.
Stop Student Debt Relief Scams Act
Ninth, the amendment amends Appendix A to reference a new offense
at 20 U.S.C. 1097(e) (Education; Student Assistance Programs; Criminal
penalties) to Sec. 2B1.1 in response to the Stop Student Debt Relief
Scams Act of 2019, Public Law 116-251 (Dec. 22, 2020). Subsection
1097(e) prohibits the unauthorized use of an access device relating to
student assistance programs issued to another or obtained by fraud to
access the information technology systems of the Department of
Education for commercial advantage or private financial gain.
Subsection 1097(e) has a statutory maximum term of imprisonment of five
years. The Commission determined that Sec. 2B1.1 is the most
appropriate guideline to which to reference this offense because Sec.
2B1.1 covers other section 1097 offenses prohibiting embezzlement,
fraud and false statements involved in student assistance programs.
Protecting Lawful Streaming Act
Tenth, the amendment amends Appendix A to reference a new offense
at 18 U.S.C. 2319C (Illicit digital transmission services) to Sec.
2B5.3 (Criminal Infringement of Copyright or Trademark) in response to
the Protecting Lawful Streaming Act, part of the 2021 Consolidated
Appropriations Act, Public Law 116-260 (Dec. 27, 2020). Section 2319C
prohibits publicly offering or providing digital transmission services
designed to provide the unauthorized transmission of copyrighted works,
including pre-release works being prepared for commercial public
performance, and provides for a statutory maximum term of imprisonment
of three years. The statutory maximum term of imprisonment is five
years if the offense involved one or more pre-release works, and for a
second or subsequent violation of section 2319C, the statutory maximum
term of imprisonment is ten years. The Commission determined that Sec.
2B5.3 is the most appropriate guideline to which to reference this
offense because it covers conduct involving criminal copyright
infringement including pre-release works.
William M. (Mac) Thornberry National Defense Authorization Act for
Fiscal Year 2021
Eleventh, the amendment amends Appendix A to reference multiple new
offenses at 31 U.S.C. 5335 (Money and Finance; Concealment of source of
assets in monetary transactions) and 5336 (Beneficial ownership
information reporting requirements) to Sec. 2S1.3 (Structuring
Transactions to Evade Reporting Requirement; Failure to Report Cash or
Monetary Transactions; Failure to File Currency and Monetary
Instruments Report) in response to the William M. (Mac) Thornberry
National Defense Authorization Act for Fiscal Year 2021, Public Law
116-283 (Jan. 1, 2021).
Subsection 5335(b) prohibits concealing, falsifying, or
misrepresenting a material fact from a financial institution about the
ownership or control of certain assets over $1,000,000 if the person or
entity controlling the assets is a certain foreign figure or associate.
Subsection 5335(c) prohibits concealing, falsifying, or misrepresenting
a material fact, to or from a financial institution, about the source
of funds in monetary transactions involving ``primary money laundering
concerns'' and that violate the prohibitions prescribed in section
5318A(b)(5). Both subsections 5335(b) and 5335(c) have a statutory
maximum term of imprisonment of ten years.
Subsection 5336(h)(1) prohibits willfully providing false or
fraudulent beneficial ownership information to the Department of the
Treasury's Financial Crimes Enforcement Network (``FinCEN'') in
accordance with the reporting requirements in subsection 5336(b).
Subsection 5336(h)(1) has a statutory maximum term of imprisonment of
two years. Subsection 5336(c)(4) prohibits employees and officers of
any requesting agency from violating the protocols established by the
Secretary of the Treasury or the unauthorized disclosure or use of the
beneficial ownership information submitted to FinCEN. Subsection
5336(h)(2) prohibits any person from knowingly disclosing or using
beneficial ownership information obtained through a report submitted
to, or through a disclosure made by, FinCEN, without authorization.
Both subsections 5336(c)(4) and 5336(h)(2) have a statutory maximum
term of imprisonment of five years. The statutory maximum term of
imprisonment for a violation of subsection 5336(c)(4) or 5336(h)(2) is
ten years if the offense was committed while violating another law of
the United States or as part of a pattern of certain unlawful
activities.
The Commission determined that Sec. 2S1.3 is the most appropriate
guideline to which to reference these new offenses because it covers
similar conduct involving structuring financial transactions and
requiring the filing of a Currency Transaction Report regarding
payment, receipt, or transfer of United States coins or currency.
3. Amendment: Section 2A3.3 is amended--
in the heading by striking ``Acts'' and inserting ``Acts; Criminal
Sexual Abuse of an Individual in Federal Custody''.
in subsection (a) by striking ``14'' and inserting ``18'';
and by inserting at the end the following new subsection (c):
``(c) Cross Reference
(1) If the offense involved criminal sexual abuse or attempt to
commit criminal sexual abuse (as defined in 18 U.S.C. Sec. 2241 or
Sec. 2242), apply Sec. 2A3.1 (Criminal Sexual Abuse; Attempt to
Commit Criminal Sexual Abuse). If the victim had not attained the age
of 12 years, Sec. 2A3.1 shall apply, regardless of the `consent' of
the victim.''.
The Commentary to Sec. 2A3.3 captioned ``Statutory Provision'' is
amended by striking ``Sec. 2243(b)'' and inserting ``Sec. Sec.
2243(b), 2243(c)''.
The Commentary to Sec. 2H1.1 captioned ``Statutory Provisions'' is
amended by striking ``246, 247, 248, 249'' and inserting ``246-250''.
Appendix A (Statutory Index) is amended--
by inserting before the line referenced to 18 U.S.C. 281 the
following new line reference:
``18 U.S.C. Sec. 250 2H1.1'';
and by inserting before the line referenced to 18 U.S.C. 2244 the
following new line reference:
``18 U.S.C. Sec. 2243(c) 2A3.3''.
Reason for Amendment: This multi-part amendment responds to
statutory changes provided in division W, title XII, of the Violence
Against Women Act Reauthorization Act, Public Law 117-103 (Nov. 9,
2022) and separately addresses concerns regarding cases involving
sexual abuse committed by law enforcement or correctional personnel
against victims in their custody, care, or supervision.
[[Page 28263]]
First, the amendment amends Appendix A (Statutory Appendix) to
reference the new offense created at 18 U.S.C. 250 (Penalties for civil
rights offenses involving sexual misconduct) to Sec. 2H1.1 (Offenses
Involving Individual Rights). New section 250 criminalizes engaging in
or causing another to engage in sexual misconduct while committing any
civil rights offense under chapter 13 (Civil Rights) of title 18, U.S.
Code, or 42 U.S.C. 3631 (Fair Housing [violations]). Section 250
delineates different degrees of prohibited sexual misconduct, including
aggravated sexual abuse as defined in 18 U.S.C. 2241 (Aggravated sexual
abuse), sexual abuse as defined in 18 U.S.C. 2242 (Sexual abuse), a
sexual act not amounting to aggravated sexual abuse or sexual abuse,
and sexual contact, as defined in 18 U.S.C. 2244 (Abusive sexual
contact). The statutory maximum term of imprisonment for a violation of
section 250 ranges from two years to any term of years or life,
depending on the sexual conduct involved in the offense.
The Commission determined that Sec. 2H1.1 is the most appropriate
guideline to which to reference this new offense. Other similar
offenses are referenced to this guideline. In addition, the Commission
concluded that the alternative base offense levels provided in Sec.
2H1.1 effectively address both the broad array of conduct criminalized
under this new statute and the varying statutory maximum terms of
imprisonment applicable to such conduct.
Second, the amendment amends Appendix A to reference new subsection
(c) at 18 U.S.C. 2243 (Sexual abuse of a minor, a ward, or an
individual in Federal custody) to Sec. 2A3.3 and makes a conforming
change to Sec. 2A3.3's title. The new subsection at 18 U.S.C. 2243
prohibits law enforcement officers from knowingly engaging in a sexual
act with an individual under arrest or supervision, in detention, or in
federal custody. The Commission determined Sec. 2A3.3 is the most
appropriate guideline to which to reference the new offense because it
covers a similar offense at 18 U.S.C. 2243(b) prohibiting anyone in a
federal prison, institution, or facility from knowingly engaging in a
sexual act with a ward, defined as an inmate or other person in
official detention and under the custodial, supervisory, or
disciplinary authority of the person engaging in the act. Subsection
2243(b) also has the same 15-year statutory maximum term of
imprisonment, and a reference to this guideline will result in similar
penalties for both subsections of section 2243.
Finally, the amendment increases the base offense level at Sec.
2A3.3 for offenses involving the sexual abuse of a ward or an
individual in federal custody from 14 to 18. The Commission determined
that the increased base offense level will more appropriately reflect
the 15-year statutory maximum penalty for offenses referenced to this
guideline and punish the serious sexual conduct involved in these
offenses. In promulgating the amendment, the Commission was informed by
both the rate and extent of above-range sentences in these cases. While
the average guideline minimum in fiscal years 2018 through 2022 was 17
months (median 12 months), the average sentence imposed was more than
double, at 35 months (median 15 months).
The Commission also concluded that an increased guideline range for
Sec. 2A3.3 offenses would be more proportional to the guideline range
at Sec. 2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of
Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) for the
sexual abuse of minors over the age of 12 and under the age of 16
years, conduct prohibited by 18 U.S.C. 2243(a) with the same 15-year
statutory maximum term of imprisonment as subsections 2243(b) and
2243(c). Section 2A3.2 has a base offense level 18 and a 4-level
enhancement if the victim is in the care, custody, or supervisory
control of the defendant.
Consistent with this approach, the amendment also amends Sec.
2A3.3 to include the same cross reference currently provided for in
Sec. 2A3.2 in order to ensure proportional guideline ranges for all
section 2243 offenses when the offense involved aggravating sexual
conduct. The new cross reference sends cases to Sec. 2A3.1 (Criminal
Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) if the offense
involved criminal sexual abuse or attempt to commit criminal sexual
abuse (as defined in 18 U.S.C. 2241 or Sec. 2242), and further directs
that Sec. 2A3.1 shall apply if the victim had not attained the age of
12 years, regardless of the ``consent'' of the victim.
4. Amendment: Section 2D1.1(a) is amended--
in paragraph (1) by striking the following:
``43, if the defendant is convicted under 21 U.S.C. 841(b)(1)(A),
(b)(1)(B), or (b)(1)(C), or 21 U.S.C. 960(b)(1), (b)(2), or (b)(3), and
the offense of conviction establishes that death or serious bodily
injury resulted from the use of the substance and that the defendant
committed the offense after one or more prior convictions for a similar
offense; or'',
and inserting the following:
``43, if--
(A) the defendant is convicted under 21 U.S.C. 841(b)(1)(A) or
(b)(1)(B), or 21 U.S.C. 960(b)(1) or (b)(2), and the offense of
conviction establishes that death or serious bodily injury resulted
from the use of the substance and that the defendant committed the
offense after one or more prior convictions for a serious drug felony
or serious violent felony; or
(B) the defendant is convicted under 21 U.S.C. 841(b)(1)(C) or 21
U.S.C. 960(b)(3) and the offense of conviction establishes that death
or serious bodily injury resulted from the use of the substance and
that the defendant committed the offense after one or more prior
convictions for a felony drug offense; or'';
and in paragraph (3) by striking ``similar offense'' and inserting
``felony drug offense''.
Section 2D1.1(b)(18) is amended by striking ``subdivisions'' and
inserting ``paragraphs''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended--
by striking Note 2 as follows:
``2. `Plant'.--For purposes of the guidelines, a `plant' is an
organism having leaves and a readily observable root formation (e.g., a
marihuana cutting having roots, a rootball, or root hairs is a
marihuana plant).'';
by redesignating Note 1 as Note 2;
by inserting before Note 2 (as so redesignated) the following new
Note 1:
``1. Definitions.--
For purposes of the guidelines, a `plant' is an organism having
leaves and a readily observable root formation (e.g., a marihuana
cutting having roots, a rootball, or root hairs is a marihuana plant).
For purposes of subsection (a), `serious drug felony,' `serious
violent felony,' and `felony drug offense' have the meaning given those
terms in 21 U.S.C. 802.'';
and in Note 21 by striking ``a minimum offense level of level 17''
and inserting ``that the applicable guideline range shall not be less
than 24 to 30 months of imprisonment''.
Section 2D1.11(b)(6) is amended by striking ``subdivisions'' and
inserting ``paragraphs''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended in Note 7 by striking ``a minimum offense level of level 17''
and inserting ``an applicable guideline range of not less than 24 to 30
months of imprisonment''.
Section 4A1.3(b)(3)(B) is amended--
[[Page 28264]]
in the heading by striking ``to Category I'';
by striking ``whose criminal history category is Category I after
receipt of'' and inserting ``who receives'';
by striking ``criterion'' and inserting ``criminal history
requirement'';
and by striking ``if, before receipt of the downward departure, the
defendant had more than one criminal history point under Sec. 4A1.1
(Criminal History Category)'' and inserting ``if the defendant did not
otherwise meet such requirement before receipt of the downward
departure''.
Section 5C1.2(a) is amended--
by inserting after ``Sec. 963,'' the following: ``or 46 U.S.C.
70503 or Sec. 70506,'';
by striking ``set forth below'' and inserting ``as follows'';
and by striking paragraph (1) as follows:
``(1) the defendant does not have more than 1 criminal history
point, as determined under the sentencing guidelines before application
of subsection (b) of Sec. 4A1.3 (Departures Based on Inadequacy of
Criminal History Category);'',
and inserting the following new paragraph (1):
``(1) the defendant does not have--
(A) more than 4 criminal history points, excluding any criminal
history points resulting from a 1-point offense, as determined under
the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing
guidelines; and
(C) a prior 2-point violent offense, as determined under the
sentencing guidelines;''.
Section 5C1.2(b) is amended by striking ``the offense level
applicable from Chapters Two (Offense Conduct) and Three (Adjustments)
shall not be less than 17'' and inserting ``the applicable guideline
range shall not be less than 24 to 30 months of imprisonment''.
The Commentary to Sec. 5C1.2 captioned ``Application Notes'' is
amended--
by striking Notes 1, 2, and 3 as follows:
``1. `More than 1 criminal history point, as determined under the
sentencing guidelines,' as used in subsection (a)(1), means more than
one criminal history point as determined under Sec. 4A1.1 (Criminal
History Category) before application of subsection (b) of Sec. 4A1.3
(Departures Based on Inadequacy of Criminal History Category).
2. `Dangerous weapon' and `firearm,' as used in subsection (a)(2),
and `serious bodily injury,' as used in subsection (a)(3), are defined
in the Commentary to Sec. 1B1.1 (Application Instructions).
3. `Offense,' as used in subsection (a)(2)-(4), and `offense or
offenses that were part of the same course of conduct or of a common
scheme or plan,' as used in subsection (a)(5), mean the offense of
conviction and all relevant conduct.'';
by inserting the following new Note 1:
``1. Definitions.--
(A) The term `violent offense' means a `crime of violence,' as
defined in 18 U.S.C. 16, that is punishable by imprisonment.
(B) `Dangerous weapon' and `firearm,' as used in subsection (a)(2),
and `serious bodily injury,' as used in subsection (a)(3), are defined
in the Commentary to Sec. 1B1.1 (Application Instructions).
(C) `Offense,' as used in subsection (a)(2)-(4), and `offense or
offenses that were part of the same course of conduct or of a common
scheme or plan,' as used in subsection (a)(5), mean the offense of
conviction and all relevant conduct.'';
by redesignating Note 4 as Note 2;
in Note 2 (as so redesignated) by inserting at the beginning the
following new heading: ``Application of subsection (a)(2).--'';
by striking Notes 5, 6, and 7 as follows:
``5. `Organizer, leader, manager, or supervisor of others in the
offense, as determined under the sentencing guidelines,' as used in
subsection (a)(4), means a defendant who receives an adjustment for an
aggravating role under Sec. 3B1.1 (Aggravating Role).
6. `Engaged in a continuing criminal enterprise,' as used in
subsection (a)(4), is defined in 21 U.S.C. 848(c). As a practical
matter, it should not be necessary to apply this prong of subsection
(a)(4) because (i) this section does not apply to a conviction under 21
U.S.C. 848, and (ii) any defendant who `engaged in a continuing
criminal enterprise' but is convicted of an offense to which this
section applies will be an `organizer, leader, manager, or supervisor
of others in the offense.'
7. Information disclosed by the defendant with respect to
subsection (a)(5) may be considered in determining the applicable
guideline range, except where the use of such information is restricted
under the provisions of Sec. 1B1.8 (Use of Certain Information). That
is, subsection (a)(5) does not provide an independent basis for
restricting the use of information disclosed by the defendant.'';
by inserting the following new Notes 3 and 4:
``3. Application of Subsection (a)(4).--
(A) `Organizer, leader, manager, or supervisor of others in the
offense'.--The first prong of subsection (a)(4) requires that the
defendant was not subject to an adjustment for an aggravating role
under Sec. 3B1.1 (Aggravating Role).
(B) `Engaged in a continuing criminal enterprise'.--`Engaged in a
continuing criminal enterprise,' as used in subsection (a)(4), is
defined in 21 U.S.C. 848(c). As a practical matter, it should not be
necessary to apply this prong of subsection (a)(4) because (i) this
section does not apply to a conviction under 21 U.S.C. 848, and (ii)
any defendant who `engaged in a continuing criminal enterprise' but is
convicted of an offense to which this section applies will be an
`organizer, leader, manager, or supervisor of others in the offense.'
4. Use of Information Disclosed under Subsection (a).--Information
disclosed by a defendant under subsection (a) may not be used to
enhance the sentence of the defendant unless the information relates to
a violent offense, as defined in Application Note 1(A).'';
by redesignating Notes 8 and 9 as Notes 5 and 6, respectively;
in Note 5 (as so redesignated) by inserting at the beginning the
following new heading: ``Government's Opportunity to Make
Recommendation.--'';
and in Note 6 (as so redesignated) by inserting at the beginning
the following new heading: ``Exemption from Otherwise Applicable
Statutory Minimum Sentences.--''.
The Commentary to Sec. 5C1.2 captioned ``Background'' is amended
by inserting after ``Violent Crime Control and Law Enforcement Act of
1994'' the following: ``and subsequently amended''.
Reason for Amendment: This two-part amendment revises Sec. 5C1.2
(Limitation on Applicability of Statutory Minimum Sentences in Certain
Cases) and subsections (a)(1) and (a)(3) of Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) in response to the First Step Act of 2018, Public Law 115-
391 (Dec. 21, 2018) (``First Step Act''). The First Step Act amended
the eligibility criteria of the ``safety valve'' provision at 18 U.S.C.
3553(f) and the enhanced penalty provisions for certain drug
trafficking defendants at 21 U.S.C. 841(b) and 960(b). The amendment
primarily revises Sec. 5C1.2 to conform it to the statutory safety
valve, as amended by the First Step Act. In addition, the amendment
revises subsections (a)(1) and (a)(3) of Sec. 2D1.1 to make the
guideline's reference to the type of prior offenses that trigger
enhanced mandatory minimum penalties
[[Page 28265]]
consistent with the amended statutory provisions.
First, the amendment makes three changes to Sec. 5C1.2 and its
corresponding commentary to reflect the statutory changes to section
3553(f) made by the First Step Act. The First Step Act expanded the
safety valve provision at section 3553(f) by extending its
applicability to defendants convicted of maritime offenses (46 U.S.C.
70503 and 70506) and broadening the criminal history eligibility
criteria to include defendants who do not have: (1) ``more than 4
criminal history points, excluding any criminal history points
resulting from a 1-point offense, as determined under the sentencing
guidelines''; (2) a ``prior 3-point offense, as determined under the
sentencing guidelines''; and (3) a ``prior 2-point violent offense, as
determined under the sentencing guidelines.'' The amendment revises
Sec. 5C1.2(a) to include maritime offenses and the expanded statutory
criminal history criteria. Next, it revises Application Note 1 to
incorporate the statutory definition for the term ``violent offense.''
Finally, it revises Application Note 7 to reflect the new statutory
limitation that information disclosed by a defendant pursuant to 18
U.S.C. 3553(f) ``may not be used to enhance the defendant's sentence
unless the information relates to a violent offense.''
Second, the amendment revises Sec. 5C1.2(b) to account for the
expanded class of defendants who qualify for safety valve relief.
Section 5C1.2(b) implemented Congress's directive requiring that the
guideline minimum be at least 24 months for defendants whose
statutorily required minimum sentence was at least five years by
providing a minimum offense level of 17 for such offenders. See Violent
Crime Control and Law Enforcement Act of 1994, Public Law 103-222,
80001(b), 108 Stat. 1796, 1985 (1994) (``In the case of a defendant for
whom the statutorily required minimum sentence is 5 years, such
guidelines and amendments to guidelines . . . shall call for a
guideline range in which the lowest term of imprisonment is at least 24
months.''); see also USSG App. C, amend. 624 (effective Nov. 1, 2001)
(adding Sec. 5C1.2(b) ``in order to comply more strictly with the
directive''). Before the First Step Act, only defendants in Criminal
History Category (CHC) I (with no more than one criminal history point)
could qualify for safety valve relief, and a base offense level of 17
therefore correlated with a guideline range of 24 to 30 months for all
safety-valve-eligible defendants. After the First Step Act, a safety-
valve-eligible defendant can be in any CHC, and an offense level of 17
correlates with the following guideline ranges at each category: I (24-
30 months); II (27-33); III (30-37); IV (37-46); V (46-57); and VI (51-
63). Because Congress's directive is tied to the existence of a 5-year
mandatory minimum penalty and not to the defendant's CHC, the amendment
replaces the offense-level floor with a guideline-range floor. The
Commission determined that the proportionality concerns raised in
public comment and testimony are addressed by the operation of the
Sentencing Table, irrespective of the offense-level floor.
Third, the amendment makes conforming changes to Sec. 4A1.3
(Departures Based on Inadequacy of Criminal History Category (Policy
Statement)), which references the number of criminal history points
permitted under Sec. 5C1.2(a)(1).
Fourth, the amendment makes only non-substantive changes to Sec.
2D1.1(b)(18) and Sec. 2D1.11(b)(6), the 2-level reductions that are
tethered to the eligibility criteria of paragraphs (1)-(5) of Sec.
5C1.2(a). The 2-level reductions in Sec. 2D1.1 and Sec. 2D1.11 apply
to any defendant who meets the revised criteria of Sec. 5C1.2.
Finally, the amendment revises subsections (a)(1) and (a)(3) of
Sec. 2D1.1 to replace the term ``similar offense'' with the
appropriate terms set forth in the relevant statutory provisions, as
amended by the First Step Act.
The penalty provisions at 21 U.S.C. 841(b) and 960(b) provide
enhanced mandatory minimum penalties for defendants (1) whose instant
offense resulted in death or serious bodily injury or (2) who have
prior convictions for certain specified offenses. Penalties are further
increased if death or serious bodily injury occurred as a result of the
instant offense and the defendant has a qualifying prior conviction.
Prior to the First Step Act, all of the recidivist penalty provisions
within sections 841(b) and 960(b) provided for an enhanced mandatory
minimum penalty if a defendant had one or more convictions for a prior
``felony drug offense,'' as defined in 21 U.S.C. 802(44). The First
Step Act both narrowed and expanded the type of prior offenses that
trigger enhanced mandatory minimum penalties under 21 U.S.C.
841(b)(1)(A), 841(b)(1)(B), 960(b)(1), and 960(b)(2) by replacing the
term ``felony drug offense'' with ``serious drug felony,'' as defined
in 21 U.S.C. 802(57), and adding ``serious violent felony'' offenses,
as defined in 21 U.S.C. 802(58). The First Step Act did not amend 21
U.S.C. 841(b)(1)(C), 841(b)(1)(E), 960(b)(3), or 960(b)(5), which still
provide for enhanced mandatory minimum penalties if a defendant was
convicted of a prior ``felony drug offense.''
The enhanced statutory penalty structure is accounted for through
heightened alternative base offense levels (BOL) at Sec. 2D1.1(a)(1)-
(a)(4). Prior to the amendment, Sec. 2D1.1(a)(1) provided for a BOL of
43 ``if the defendant is convicted under [any of six enumerated
subsections], and the offense of conviction establishes that death or
serious bodily injury resulted from the use of the substance and that
the defendant committed the offense after one or more prior convictions
for a similar offense.'' Subsection 2D1.1(a)(3) is identical to Sec.
2D1.1(a)(1), except that it provides a BOL of 30 and applies if the
defendant is convicted of an offense involving a Schedule III
controlled substance under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C.
960(b)(5).
The First Step Act amended four of the six penalty provisions
referenced in Sec. 2D1.1(a)(1) and, for those amended provisions, the
term ``similar offense'' is over-inclusive, because it includes drug
offenses that do not meet the definition of ``serious drug felony,''
and under-inclusive, because it fails to account for a prior ``serious
violent felony.'' The amendment divides Sec. 2D1.1(a)(1) into two
subparagraphs, (A) and (B). Subparagraph (A), which references the four
statutory provisions amended by the First Step Act, replaces the term
``similar offense'' with ``serious drug felony or serious violent
felony.'' Subparagraph (B), which references the two provisions that
were not amended, replaces the term ``similar offense'' with ``felony
drug offense.'' The amendment also amends Sec. 2D1.1(a)(3), by
replacing the term ``similar offense'' with ``felony drug offense,''
for consistency with the terminology used in Sec. 2D1.1(a)(1).
5. Amendment: Section 2D1.1(b)(13) is amended--
by inserting after ``defendant'' the following: ``(A)'';
and by inserting after ``4 levels'' the following: ``; or (B)
represented or marketed as a legitimately manufactured drug another
mixture or substance containing fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue, and
acted with willful blindness or conscious avoidance of knowledge that
such mixture or substance was not the legitimately manufactured drug,
increase by 2 levels. The term `drug,' as used in subsection
(b)(13)(B), has the meaning given that term in 21 U.S.C. 321(g)(1)''.
Reason for Amendment: This amendment revises subsection (b)(13) of
[[Page 28266]]
Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy) to add a new subparagraph (B) with an
alternative 2-level enhancement for offenses where the defendant
represented or marketed as a legitimately manufactured drug another
mixture or substance containing fentanyl or a fentanyl analogue, and
acted with willful blindness or conscious avoidance of knowledge that
such mixture or substance was not the legitimately manufactured drug.
The new subparagraph (B) refers to 21 U.S.C. 321(g)(1) to define the
term ``drug.''
Since Sec. 2D1.1(b)(13)'s initial promulgation in 2018, the
distribution of fentanyl and fentanyl analogues has dramatically
increased. The Drug Enforcement Administration reported a substantial
increase in the seizure of fake prescription pills, seizing over 50.6
million in calendar year 2022, with 70 percent containing fentanyl. Of
those seized pills containing fentanyl, six out of ten contained a
potentially lethal dose of the substance, according to lab testing.
Additionally, the Centers for Disease Control and Prevention (CDC)
estimates there were 107,622 drug overdose deaths in the United States
in 2021, an increase of nearly 15 percent from the 93,655 deaths
estimated in 2020. The CDC attributes 80,816 of the drug overdose
deaths in 2021 to synthetic opioids, primarily fentanyl.
Commission data also indicates an increase in fentanyl and fentanyl
analogue offenses, with fentanyl supplanting other drug types, such as
crack cocaine and heroin, to become the third most prevalent primary
drug (12.6%) among federal drug offenses in fiscal year 2022. In fiscal
year 2017, 166 offenders were held accountable for fentanyl or fentanyl
analogues. By fiscal year 2022, the number of offenders increased to
2,511 offenders.
The new alternative 2-level enhancement reflects the increased
culpability of an individual who acted with willful blindness or
conscious avoidance of knowledge that the substance the individual
represented or marketed as a legitimately manufactured drug contained
fentanyl or a fentanyl analogue. The Commission determined that the
``willful blindness'' and ``conscious avoidance'' doctrines are ``well
established in criminal law,'' as recognized by the Supreme Court. See
Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011).
While appellate courts articulate the ``willful blindness'' or
``conscious avoidance'' doctrines slightly differently, the requirement
makes clear that the government bears the burden to prove by a
preponderance of the evidence that the enhancement applies based on the
subjective belief and deliberate action of the defendant committing the
offense.
6. Amendment: Section 2K2.1(a)(4)(B) is amended by inserting after
``18 U.S.C. 922(d)'' the following: ``, Sec. 932, or Sec. 933''.
Section 2K2.1(a)(6)(B) is amended by inserting after ``18 U.S.C.
922(d)'' the following: ``, Sec. 932, or Sec. 933''.
Section 2K2.1(b) is amended--
in paragraph (4) by striking ``If any firearm (A) was stolen,
increase by 2 levels; or (B) had an altered or obliterated serial
number, increase by 4 levels'' and inserting ``If (A) any firearm was
stolen, increase by 2 levels; or (B)(i) any firearm had an altered or
obliterated serial number; or (ii) the defendant knew that any firearm
involved in the offense was not otherwise marked with a serial number
(other than a firearm manufactured prior to the effective date of the
Gun Control Act of 1968) or was willfully blind to or consciously
avoided knowledge of such fact, increase by 4 levels'';
in paragraph (5) by striking ``If the defendant engaged in the
trafficking of firearms, increase by 4 levels.'' and inserting the
following:
``(Apply the Greatest) If the defendant--
(A) was convicted under 18 U.S.C. 933(a)(2) or (a)(3), increase by
2 levels;
(B) (i) transported, transferred, sold, or otherwise disposed of,
or purchased or received with intent to transport, transfer, sell, or
otherwise dispose of, a firearm or any ammunition knowing or having
reason to believe that such conduct would result in the receipt of the
firearm or ammunition by an individual who (I) was a prohibited person;
or (II) intended to use or dispose of the firearm or ammunition
unlawfully; (ii) attempted or conspired to commit the conduct described
in clause (i); or (iii) received a firearm or any ammunition as a
result of inducing the conduct described in clause (i), increase by 2
levels; or
(C) (i) transported, transferred, sold, or otherwise disposed of,
or purchased or received with intent to transport, transfer, sell, or
otherwise dispose of, two or more firearms knowing or having reason to
believe that such conduct would result in the receipt of the firearms
by an individual who (I) had a prior conviction for a crime of
violence, controlled substance offense, or misdemeanor crime of
domestic violence; (II) was under a criminal justice sentence at the
time of the offense; or (III) intended to use or dispose of the
firearms unlawfully; (ii) attempted or conspired to commit the conduct
described in clause (i); or (iii) received two or more firearms as a
result of inducing the conduct described in clause (i), increase by 5
levels.
Provided, however, that subsection (b)(5)(C)(i)(I) shall not apply
based upon the receipt or intended receipt of the firearms by an
individual with a prior conviction for a misdemeanor crime of domestic
violence against a person in a dating relationship if, at the time of
the instant offense, such individual met the criteria set forth in the
proviso of 18 U.S.C. 921(a)(33)(C).'';
and by inserting at the end the following new paragraphs (8) and
(9):
``(8) If the defendant--
(A) receives an enhancement under subsection (b)(5); and
(B) committed the offense in connection with the defendant's
participation in a group, club, organization, or association of five or
more persons, knowing or acting with willful blindness or conscious
avoidance of knowledge that the group, club, organization, or
association had as one of its primary purposes the commission of
criminal offenses;
increase by 2 levels.
(9) If the defendant--
(A) receives an enhancement under subsection (b)(5);
(B) does not have more than 1 criminal history point, as determined
under Sec. 4A1.1 (Criminal History Category) and Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History), read
together, before application of subsection (b) of Sec. 4A1.3
(Departures Based on Inadequacy of Criminal History Category); and
(C) (i) 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; or (ii) was unusually vulnerable to being
persuaded or induced to commit the offense due to a physical or mental
condition;
decrease by 2 levels.''.
The Commentary to Sec. 2K2.1 captioned ``Statutory Provisions'' is
amended by inserting after ``(k)-(o),'' the following: ``932, 933,''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended--
in Note 3 by striking ``subsections (a)(4)(B) and (a)(6)'' and
inserting ``subsections (a)(4)(B), (a)(6), and (b)(5)'';
in Note 8(A)--
in the first paragraph by striking ``However, if the offense
involved a firearm with an altered or obliterated serial number, apply
subsection (b)(4)(B)'' and inserting ``However, if the offense involved
a firearm with an altered or obliterated serial number, or
[[Page 28267]]
if the defendant knew that any firearm involved in the offense was not
otherwise marked with a serial number (other than a firearm
manufactured prior to the effective date of the Gun Control Act of
1968) or was willfully blind to or consciously avoided knowledge of
such fact, apply subsection (b)(4)(B)(i) or (ii)'';
and by striking the second paragraph as follows:
``Similarly, if the offense to which Sec. 2K2.1 applies is 18
U.S.C. Sec. Sec. 922(k) or 26 U.S.C. Sec. Sec. 5861(g) or (h)
(offenses involving an altered or obliterated serial number) and the
base offense level is determined under subsection (a)(7), do not apply
the enhancement in subsection (b)(4)(B). This is because the base
offense level takes into account that the firearm had an altered or
obliterated serial number. However, if the offense involved a stolen
firearm or stolen ammunition, apply subsection (b)(4)(A).'',
and inserting the following paragraph:
``Similarly, if the offense to which Sec. 2K2.1 applies is 18
U.S.C. Sec. Sec. 922(k) or 26 U.S.C. Sec. Sec. 5861(g) or (h)
(offenses involving an altered or obliterated serial number) and the
base offense level is determined under subsection (a)(7), do not apply
the enhancement in subsection (b)(4)(B)(i). This is because the base
offense level takes into account that the firearm had an altered or
obliterated serial number. However, if the offense involved a stolen
firearm or stolen ammunition, or if the defendant knew that any firearm
involved in the offense was not otherwise marked with a serial number
(other than a firearm manufactured prior to the effective date of the
Gun Control Act of 1968) or was willfully blind to or consciously
avoided knowledge of such fact, apply subsection (b)(4)(A) or
(B)(ii).'';
in Note 8(B) by striking the following:
``Knowledge or Reason to Believe.--Subsection (b)(4) applies
regardless of whether the defendant knew or had reason to believe that
the firearm was stolen or had an altered or obliterated serial
number.'',
and inserting the following:
``Defendant's State of Mind.--Subsection (b)(4)(A) or (B)(i)
applies regardless of whether the defendant knew or had reason to
believe that the firearm was stolen or had an altered or obliterated
serial number. However, subsection (b)(4)(B)(ii) only applies if the
defendant knew that any firearm involved in the offense was not
otherwise marked with a serial number (other than a firearm
manufactured prior to the effective date of the Gun Control Act of
1968) or was willfully blind to or consciously avoided knowledge of
such fact.'';
in Note 10 by striking ``subsection (a)(1) and (a)(2)'' and
inserting ``subsections (a)(1) and (a)(2)'';
in Note 13--
by striking paragraph (A) as follows:
``(A) In General.--Subsection (b)(5) applies, regardless of whether
anything of value was exchanged, if the defendant--
(i) transported, transferred, or otherwise disposed of two or more
firearms to another individual, or received two or more firearms with
the intent to transport, transfer, or otherwise dispose of firearms to
another individual; and
(ii) knew or had reason to believe that such conduct would result
in the transport, transfer, or disposal of a firearm to an individual--
(I) whose possession or receipt of the firearm would be unlawful;
or
(II) who intended to use or dispose of the firearm unlawfully.'';
by redesignating paragraphs (B), (C), and (D) as paragraphs (A),
(B), and (C), respectively;
in paragraph (A) (as so redesignated) by striking the following
paragraphs:
`` `Individual whose possession or receipt of the firearm would be
unlawful' means an individual who (i) has a prior conviction for a
crime of violence, a controlled substance offense, or a misdemeanor
crime of domestic violence; or (ii) at the time of the offense was
under a criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape status.
`Crime of violence' and `controlled substance offense' have the meaning
given those terms in Sec. 4B1.2 (Definitions of Terms Used in Section
4B1.1). `Misdemeanor crime of domestic violence' has the meaning given
that term in 18 U.S.C. Sec. Sec. 921(a)(33)(A).
The term `defendant', consistent with Sec. 1B1.3 (Relevant
Conduct), limits the accountability of the defendant to the defendant's
own conduct and conduct that the defendant aided or abetted, counseled,
commanded, induced, procured, or willfully caused.'',
and inserting the following paragraphs:
`` `Crime of violence' and `controlled substance offense' have the
meaning given those terms in Sec. 4B1.2 (Definitions of Terms Used in
Section 4B1.1).
`Misdemeanor crime of domestic violence' has the meaning given that
term in 18 U.S.C. Sec. Sec. 921(a)(33)(A).
The term `criminal justice sentence' includes probation, parole,
supervised release, imprisonment, work release, or escape status.
The term `defendant,' consistent with Sec. 1B1.3 (Relevant
Conduct), limits the accountability of the defendant to the defendant's
own conduct and conduct that the defendant aided or abetted, counseled,
commanded, induced, procured, or willfully caused.'';
and in paragraph (B) (as so redesignated) by striking ``If the
defendant trafficked substantially more than 25 firearms'' and
inserting ``If the defendant transported, transferred, sold, or
otherwise disposed of, or purchased or received with intent to
transport, transfer, sell, or otherwise dispose of, substantially more
than 25 firearms'';
and by striking Note 15 as follows:
``15. Certain Convictions Under 18 U.S.C. Sec. Sec. 922(a)(6),
922(d), and 924(a)(1)(A).--In a case in which the defendant is
convicted under 18 U.S.C. Sec. Sec. 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.''.
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 18 U.S.C. 956 the following new line references:
``18 U.S.C. Sec. Sec. 932 2K2.1
18 U.S.C. Sec. Sec. 933 2K2.1''.
Reason for Amendment: This multi-part amendment responds to the
directive in section 12004(a)(5) of the Bipartisan Safer Communities
Act, Public Law 117-159 (the ``Act''), addresses new offenses and other
changes in law made by the Act, and revises the primary firearms
guideline, Sec. 2K2.1 (Unlawful Receipt, Possession, or Transportation
of Firearms or Ammunition; Prohibited Transactions Involving Firearms
or Ammunition), to account for firearms that are not marked with a
serial number. In the Act, Congress directed that the Commission:
shall review and amend its guidelines and policy statements to
ensure that persons convicted of an offense under section 932 or 933 of
title 18, United States Code, and other offenses applicable to the
straw purchases and trafficking of firearms are subject to increased
penalties in comparison to those currently provided by the guidelines
and policy statements for such straw purchasing and trafficking of
firearms offenses. In its review, the Commission shall consider, in
particular, an appropriate amendment to reflect the intent of Congress
that straw purchasers without significant criminal histories receive
sentences that are sufficient to deter participation in such
[[Page 28268]]
activities and reflect the defendant's role and culpability, and any
coercion, domestic violence survivor history, or other mitigating
factors. The Commission shall also review and amend its guidelines and
policy statements to reflect the intent of Congress that a person
convicted of an offense under section 932 or 933 of title 18, United
States Code, who is affiliated with a gang, cartel, organized crime
ring, or other such enterprise should be subject to higher penalties
than an otherwise unaffiliated individual.
Public Law 117-159, 12004(a)(5), 136 Stat. 1313, 1328 (2022).
New Straw Purchase and Firearms Trafficking Offenses
The amendment makes two changes to account for the new offenses at
18 U.S.C. 932 and 933 established by the Act. First, the amendment
amends Appendix A (Statutory Index) to reference the new offenses to
Sec. 2K2.1. Section 12004(a)(1) of the Act makes it unlawful to engage
in straw purchasing of firearms (18 U.S.C. 932) or trafficking in
firearms (18 U.S.C. 933). Sections 932 and 933 both carry statutory
maximum sentences of 15 years of imprisonment. 18 U.S.C. 932(c)(1),
933(b). The statutory maximum in section 932 increases to 25 years
where the defendant has reasonable cause to believe the firearm would
be used to commit a felony or certain other offenses. 18 U.S.C.
932(c)(2). As both offenses address conduct that is analogous to other
firearms offenses, the Commission determined that the most appropriate
guideline is Sec. 2K2.1.
Second, the amendment revises Sec. 2K2.1 to set the base offense
level for defendants convicted of these crimes at level 14, or level 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. 5845(a). The Commission set these base offense levels to the
same levels applicable to defendants convicted under a third statute
used to prosecute straw purchasers and traffickers with the same 15-
year statutory maximum, 18 U.S.C. 922(d), to ensure proportionality.
Increase Penalties for Straw Purchasing and Trafficking Offenses
The amendment next revises Sec. 2K2.1 to respond to section
12004(a)(5) of the Act, which directs the Commission to provide
increased penalties for defendants convicted under 18 U.S.C. 932, 18
U.S.C. 933, or ``other offenses applicable to the straw purchases and
trafficking of firearms.'' Specifically, the amendment revises the
existing ``trafficking'' specific offense characteristic at Sec.
2K2.1(b)(5).
Prior to the amendment, subsection (b)(5) provided an enhancement
of four levels ``[i]f the defendant engaged in the trafficking of
firearms.'' Application Note 13(A) provided that this enhancement
applied if the defendant transported, transferred, or otherwise
disposed of two or more firearms to another individual, or received two
or more firearms with the intent to transport, transfer, or otherwise
dispose of firearms to another individual, whose possession or receipt
would be unlawful or who intended to use or dispose of the firearm
unlawfully. Application Note 13(B) defined a person whose possession or
receipt would be unlawful as an individual who (i) had a prior
conviction for a crime of violence, a controlled substance offense, or
a misdemeanor crime of domestic violence; or (ii) at the time of the
offense was under a criminal justice sentence, including probation,
parole, supervised release, imprisonment, work release, or escape
status.
The amendment revises subsection (b)(5) in three ways to comply
with Congress's directive to include an increase for all defendants
convicted under 18 U.S.C. 932, 18 U.S.C. 933, or other offenses
involving straw purchasing or trafficking of firearms.
First, the amendment creates a new subsection, Sec.
2K2.1(b)(5)(A), which provides a 2-level enhancement for defendants
convicted of illegally receiving a firearm under 18 U.S.C. 933(a)(2)
(the trafficking receipt provision) or Sec. 933(a)(3) (attempting/
conspiring to violate section 933). This ensures that receipt-only
defendants convicted under section 933 receive the requisite increase.
Second, the amendment creates a new subsection, Sec.
2K2.1(b)(5)(B), which provides a 2-level enhancement for any defendant
engaged in straw purchasing or trafficking. This provision incorporates
the elements of the straw purchasing and firearms trafficking statutes,
including 18 U.S.C. 922(d), Sec. 932, and Sec. 933(a)(1), to provide
an increase for defendants who attempted, conspired, or engaged in
conduct involving the illicit transfer of a firearm or ammunition but
who would not have received the trafficking enhancement prior to the
amendment because of the limiting criteria in the existing Application
Note 13. Those criteria included trafficking two or more firearms and
that the recipient have criminal convictions for specified crimes.
Third, the amendment revises the criteria previously set forth in
Application Notes 13(A) and (B) and incorporates the criteria into
subsection (b)(5)(C). New subsection (b)(5)(C) provides an increase for
defendants who attempted, conspired, or engaged in conduct involving
the illicit transfer of two or more firearms to a person who (i) had a
prior conviction of a crime of violence, controlled substance offense,
or misdemeanor crime of domestic violence; (ii) was under a criminal
justice sentence at the time of the offense; or (iii) intended to use
or dispose of the firearms unlawfully. The new subsection (b)(5)(C)
increases the enhancement from four levels to five levels to ensure
straw purchasers and firearms traffickers meeting these criteria
receive increased penalties as required by the directive.
The Commission determined that the expanded specific offense
characteristic at subsection (b)(5) fully implements the directive by
ensuring that defendants who illegally transfer a firearm receive an
increased penalty under the guidelines. Specifically, the enhancement
is tailored to apply to the most culpable defendants who engage in (a)
straw purchasing, including those defendants who induce straw
purchasing, and (b) firearms trafficking, including those defendants
whose conduct was ``upstream'' in the gun trafficking pipeline.
Consistent with the legislative history of the Act, public comment, and
witness testimony, the Commission determined that such an increase is
appropriate to reflect Congress's view that such conduct contributes to
the illegal flow of firearms and that such defendants are currently
under-punished as compared to felons in possession of the trafficked
weapons. At the same time, by incorporating the elements of the core
straw purchasing and firearms trafficking statutes, including the new
offenses (sections 932 and 933), the new enhancement narrowly targets
such defendants without also impacting other firearms defendants who
were not intended to receive an increase.
The amendment also makes two conforming changes. First, to conform
with statutory changes in 18 U.S.C. 921(a)(33), the amended subsection
(b)(5)(C) includes a proviso that the enhancement does not apply by
reason of the transferee's prior misdemeanor crime of domestic violence
where the transferee's rights were restored. Second, the amendment
amends the upward departure provision in Application Note 13(B) to
conform the language with the revised subsection (b)(5).
[[Page 28269]]
Increase Penalties for Organized Crime
The amendment next amends Sec. 2K2.1 to respond to section
12004(a)(5) of the Act, which directs the Commission to increase
penalties for defendants convicted under 18 U.S.C. 932 or Sec. 933 who
are affiliated with organized crime. The amendment implements this
portion of the directive by creating a new specific offense
characteristic providing for a 2-level enhancement under Sec.
2K2.1(b)(8). Section 2K2.1(b)(8) applies to those defendants who
receive an increase at subsection (b)(5) and who committed the offense
in connection with the defendant's participation in an organization of
five or more persons, knowing, or acting with willful blindness or
conscious avoidance of knowledge, that the organization has as one of
its primary purposes the commission of criminal offenses.
To ensure that a defendant would not receive the enhancement based
solely on evidence unrelated to the criminal act or mere inclusion in
gang databases, the enhancement requires that the defendant committed
the offense ``in connection with'' the defendant's ``participation'' in
a criminal organization, and that the defendant knew or consciously
avoided knowledge of the criminal nature of the organization's
activities. As with other amendments this year, the Commission
determined that the doctrines of ``willful blindness'' and ``conscious
avoidance'' are ``well established in criminal law.'' See Glob.-Tech
Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766, 769 (2011) (noting
that, while the Courts of Appeals articulate the ``willful blindness''
or ``conscious avoidance'' doctrines slightly differently, ``[the
Courts of Appeals] all appear to agree on two basic requirements: (1)
The defendant must subjectively believe that there is a high
probability that a fact exists and (2) the defendant must take
deliberate actions to avoid learning of that fact.'').
Finally, the Commission determined that a 2-level increase for
defendants receiving this enhancement is appropriate because specific
offense characteristics accounting for other aggravating factors, such
as the number of firearms and the use or possession of any firearm or
ammunition in connection with another felony offense, may also apply to
gang-affiliated defendants in addition to the new enhancement at
subsection (b)(8). Accordingly, the Commission determined that an
incremental 2-level enhancement appropriately and adequately
differentiates straw purchasing and firearms trafficking defendants
affiliated with organized crime from those who are unaffiliated.
Reduction for Mitigating Circumstances
The amendment amends Sec. 2K2.1 to respond to section 12004(a)(5)
of the Act, which directs the Commission to consider an amendment
accounting for straw purchasers with mitigating circumstances. The
amendment implements this portion of the directive by creating a new
specific offense characteristic at Sec. 2K2.1(b)(9) providing a 2-
level reduction available to defendants who receive an increase at
subsection (b)(5) and satisfy other eligibility criteria. The amendment
also deletes Application Note 15, which provided for a downward
departure for certain straw purchasers, because subsection (b)(9)
provides a reduction with broader criteria.
Consistent with congressional intent that the reduction apply to
straw purchasers without significant criminal histories, a defendant
must have no more than 1 criminal history point to qualify for the
specific offense characteristic. Also consistent with congressional
intent that the Commission account for mitigating circumstances, the
adjustment applies to a defendant motivated by an intimate or familial
relationship or by threats or fear who was otherwise unlikely to commit
such an offense, or to a defendant who was unusually vulnerable due to
physical or mental conditions. The Commission determined that such
qualifiers appropriately ensure that the reduction is not so broad as
to include highly culpable defendants, while also ensuring it is not so
narrow as to exclude the less culpable defendants.
Similarly, the Commission determined that a 2-level reduction is
appropriate to ensure that the magnitude of the reduction matches the
magnitude of the increase provided in subsections (b)(5)(A) and (B) so
that qualifying defendants do not receive increased penalties as a
result of the amendment taken as a whole.
Firearms Not Marked With a Serial Number
Finally, the amendment amends Sec. 2K2.1 to account for privately
made firearms not marked with a serial number, commonly referred to as
``ghost guns.'' The amendment provides a 4-level enhancement if the
defendant knew that the offense involved a firearm not marked with a
serial number, or the defendant was willfully blind or consciously
avoided knowing this fact.
In adding the enhancement, the Commission concluded that there is
no meaningful distinction between a firearm with an obliterated serial
number, which has long-triggered a 4-level enhancement under Sec.
2K2.1(b)(4), and a firearm that is not marked with a serial number. The
Commission also concluded that firearms not marked with a serial number
share the traits that led the Commission to implement a 4-level
enhancement for firearms with altered or obliterated serial numbers:
``difficulty in tracing firearms with altered or obliterated serial
numbers, and the increased market for these types of weapons.'' USSG
App. C, amend. 691 (effective Nov. 1, 2006). Specifically, the
Commission shared concerns raised by the Department of Justice
regarding the proliferation of ghost guns, the increased frequency with
which ghost guns are used in connection with criminal activity, and the
difficulty in tracing these firearms. Therefore, the Commission
concluded that the same 4-level enhancement applied in offenses
involving an altered or obliterated serial number is also appropriate
for firearms not marked with a serial number.
The Commission determined that the enhancement should apply only to
those defendants who knew or consciously avoided knowing that the
firearm was not marked with a serial number. The amendment also
specifically excepts firearms manufactured before the effective date of
the Gun Control Act of 1968, which imposed the requirement that federal
firearms licensees serialize newly manufactured or imported firearms.
The amendment also makes conforming changes to Application Note 8.
7. Amendment: Section 3E1.1(b) is amended by inserting after ``1
additional level.'' the following: ``The term `preparing for trial'
means substantive preparations taken to present the government's case
against the defendant to a jury (or judge, in the case of a bench
trial) at trial. `Preparing for trial' is ordinarily indicated by
actions taken close to trial, such as preparing witnesses for trial, in
limine motions, proposed voir dire questions and jury instructions, and
witness and exhibit lists. Preparations for pretrial proceedings (such
as litigation related to a charging document, discovery motions, and
suppression motions) ordinarily are not considered `preparing for
trial' under this subsection. Post-conviction matters (such as
sentencing objections, appeal waivers, and related issues) are not
considered `preparing for trial.' ''.
The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is
amended in Note 6 by striking ``The government
[[Page 28270]]
should not withhold such a motion based on interests not identified in
Sec. 3E1.1, such as whether the defendant agrees to waive his or her
right to appeal.''.
Reason for Amendment: This amendment responds to circuit conflicts
over whether a reduction under subsection (b) of Sec. 3E1.1
(Acceptance of Responsibility), which requires a motion from the
government, may be withheld or denied if a defendant moves to suppress
evidence or raises sentencing challenges. The amendment addresses the
circuit conflicts by providing a definition of the term ``preparing for
trial,'' which appears in Sec. 3E1.1(b) and Application Note 6 to
Sec. 3E1.1. The amendment also deletes hortatory language that the
Commission previously added to Application Note 6 providing that the
``government should not withhold such a motion based on interests not
identified in Sec. 3E1.1, such as whether the defendant agrees to
waive his or her right to appeal.'' See USSG App. C, amend. 775
(effective Nov. 1, 2013).
The amendment defines ``preparing for trial'' as ``substantive
preparations taken to present the government's case against the
defendant to a jury (or judge, in the case of a bench trial) at
trial.'' The amendment further provides examples of actions that
ordinarily indicate preparing for trial (such as preparing witnesses
for trial, in limine motions, proposed voir dire questions and jury
instructions, and witnesses and exhibit lists). The amendment further
provides that preparations for pretrial proceedings (such as litigation
related to a charging document, discovery motions, and suppression
motions) ordinarily are not considered preparing for trial, and that
post-conviction matters (such as sentencing objections, appeal waivers,
and related issues) are not considered preparing for trial.
As Justices Sotomayor and Gorsuch observed in 2021, the conflict as
to whether a suppression hearing is a valid basis for denying a Sec.
3E1.1(b) reduction is both longstanding and has a potentially
significant impact on defendants. See Longoria v. United States, 141 S.
Ct. 978, 979 (2021) (statement of Sotomayor, J., with whom Gorsuch, J.
joins, respecting the denial of certiorari, ``emphasiz[ing] the need
for clarification from the Commission'' on this ``important and
longstanding split among the Courts of Appeals over the proper
interpretation of Sec. 3E1.1(b)''). Three circuits (the Third, Fifth,
and Sixth Circuits) have permitted the government to withhold a Sec.
3E1.1(b) motion based on a suppression motion, while five circuits (the
First, Second, Ninth, Tenth, and D.C. Circuits) have held that a
reduction may not be denied based on a suppression motion. Compare
United States v. Longoria, 958 F.3d 372 (5th Cir. 2020), cert. denied,
141 S. Ct. 978 (2021), United States v. Collins, 683 F.3d 697 (6th Cir.
2012), and United States v. Drennon, 516 F.3d 160 (3d Cir. 2008), with
United States v. Vargas, 961 F.3d 566 (2d Cir. 2020), United States v.
Price, 409 F.3d 436 (D.C. Cir. 2005), United States v. Marquez, 337
F.3d 1203 (10th Cir. 2003), United States v. Marroquin, 136 F.3d 220
(1st Cir. 1998), and United States v. Kimple, 27 F.3d 1409 (9th Cir.
1994).
Similarly, the First, Third, Seventh, and Eighth Circuits have held
that the government may withhold a Sec. 3E1.1(b) motion based on
sentencing challenges, while the Second and Fifth Circuits have held
that it may not. Compare United States v. Adair, 38 F.4th 341 (3d Cir.
2022), United States v. Jordan, 877 F.3d 391 (8th Cir. 2017), United
States v. Sainz-Preciado, 566 F.3d 708 (7th Cir. 2009), and United
States v. Beatty, 538 F.3d 8 (1st Cir. 2008), with United States v.
Castillo, 779 F.3d 318 (5th Cir. 2015), and United States v. Lee, 653
F.3d 170 (2d Cir. 2011).
These conflicts have resulted in variation in Sec. 3E1.1(b) motion
practice across--and even within--judicial districts. In some
jurisdictions, defendants receive the additional reduction as a matter
of course, even if they assert pre-trial or post-conviction challenges.
In others, the Sec. 3E1.1(b) motion has been withheld based on motions
to suppress, sentencing challenges, or other grounds. Because the
sentencing impact of losing one additional level under Sec. 3E1.1(b)
can be significant, the practice in the latter districts has had a
chilling effect, deterring defendants from pursuing certain evidentiary
and sentencing challenges.
The Commission promulgated this amendment to decrease variation
between jurisdictions in applying Sec. 3E1.1(b). The amendment also
aims to minimize any deterrent effect on defendants' ability to
exercise their constitutional rights. See also Sec. 3E1.1, comment.
(n.2) (allowing consideration for the adjustment where a defendant
exercises constitutional rights to trial to raise a constitutional
challenge to a statute or challenge the applicability of a statute to
the defendant's conduct).
In promulgating this amendment, the Commission recognizes that
these circuit conflicts involve guideline and commentary provisions
that Congress directly amended, and that Congress also directed the
Commission not to ``alter or repeal'' the congressional amendments. See
Prosecutorial Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003, Public Law 108-21, 401(g), (j)(4), 117
Stat. 650. In recognition of this limitation, the amendment defines a
term that the congressional amendments did not define--``preparing for
trial''--without altering or repealing the amendments that Congress
made.
8. Amendment:
Part A (Status Points Under Sec. 4A1.1)
The Commentary to Sec. 2P1.1 captioned ``Application Notes'' is
amended in Note 5 by striking ``Sec. 4A1.1(d)'' and inserting ``Sec.
4A1.1(e)''.
Section 4A1.1 is amended--
by striking subsection (d) as follows:
``(d) Add 2 points if the defendant committed the instant offense
while under any criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape status.'';
by redesignating subsection (e) as subsection (d);
and by inserting at the end the following new subsection (e):
``(e) Add 1 point if the defendant (1) receives 7 or more points
under subsections (a) through (d), and (2) committed the instant
offense while under any criminal justice sentence, including probation,
parole, supervised release, imprisonment, work release, or escape
status.''.
The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is
amended--
by striking Note 4 as follows:
``4. Sec. 4A1.1(d). Two points are added if the defendant
committed any part of the instant offense (i.e., any relevant conduct)
while under any criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape status.
Failure to report for service of a sentence of imprisonment is to be
treated as an escape from such sentence. See Sec. 4A1.2(n). For the
purposes of this subsection, a `criminal justice sentence' means a
sentence countable under Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History) having a custodial or supervisory
component, although active supervision is not required for this
subsection to apply. For example, a term of unsupervised probation
would be included; but a sentence to pay a fine, by itself, would not
be included. A defendant who commits the instant offense while a
violation warrant from a prior sentence is outstanding (e.g., a
probation, parole, or supervised release violation warrant) shall be
deemed to be under a criminal justice sentence for the purposes of this
[[Page 28271]]
provision if that sentence is otherwise countable, even if that
sentence would have expired absent such warrant. See Sec. 4A1.2(m).'';
by redesignating Note 5 as Note 4;
in Note 4 (as so redesignated) by striking ``Sec. 4A1.1(e)'' each
place such term appears and inserting ``Sec. 4A1.1(d)'';
and by inserting at the end the following new note 5:
``5. Sec. 4A1.1(e). One point is added if the defendant (1)
receives 7 or more points under Sec. 4A1.1(a) through (d), and (2)
committed any part of the instant offense (i.e., any relevant conduct)
while under any criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape status.
Failure to report for service of a sentence of imprisonment is to be
treated as an escape from such sentence. See Sec. 4A1.2(n). For the
purposes of this subsection, a `criminal justice sentence' means a
sentence countable under Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History) having a custodial or supervisory
component, although active supervision is not required for this
subsection to apply. For example, a term of unsupervised probation
would be included; but a sentence to pay a fine, by itself, would not
be included. A defendant who commits the instant offense while a
violation warrant from a prior sentence is outstanding (e.g., a
probation, parole, or supervised release violation warrant) shall be
deemed to be under a criminal justice sentence for the purposes of this
provision if that sentence is otherwise countable, even if that
sentence would have expired absent such warrant. See Sec. 4A1.2(m).''.
The Commentary to Sec. 4A1.1 captioned ``Background'' is amended
in the last paragraph by striking ``Section 4A1.1(d) adds two points if
the defendant was under a criminal justice sentence during any part of
the instant offense'' and inserting ``Section 4A1.1(e) adds one point
if the defendant receives 7 or more points under Sec. 4A1.1(a) through
(d) and was under a criminal justice sentence during any part of the
instant offense''.
Section 4A1.2 is amended--
in subsection (a)(2) by striking ``Sec. 4A1.1(e)'' and inserting
``Sec. 4A1.1(d)'';
in subsection (m) by striking ``Sec. 4A1.1(d)'' and inserting
``Sec. 4A1.1(e)'';
in subsection (n) by striking ``Sec. 4A1.1(d)'' and inserting
``Sec. 4A1.1(e)'';
and in subsection (p) by striking ``Sec. 4A1.1(e)'' and inserting
``Sec. 4A1.1(d)''.
Part B (Zero-Point Offenders)
Subpart 1 (Adjustment for Certain Zero-Point Offenders)
Chapter Four is amended by inserting at the end the following new
Part C:
``PART C--ADJUSTMENT FOR CERTAIN ZERO-POINT OFFENDERS
Sec. 4C1.1. Adjustment for Certain Zero-Point Offenders
(a) Adjustment.--If the defendant meets all of the following
criteria:
(1) the defendant did not receive any criminal history points from
Chapter Four, Part A;
(2) the defendant did not receive an adjustment under Sec. 3A1.4
(Terrorism);
(3) the defendant did not use violence or credible threats of
violence in connection with the offense;
(4) the offense did not result in death or serious bodily injury;
(5) the instant offense of conviction is not a sex offense;
(6) the defendant did not personally cause substantial financial
hardship;
(7) the defendant did not possess, receive, purchase, transport,
transfer, sell, or otherwise dispose of a firearm or other dangerous
weapon (or induce another participant to do so) in connection with the
offense;
(8) the instant offense of conviction is not covered by Sec. 2H1.1
(Offenses Involving Individual Rights);
(9) the defendant did not receive an adjustment under Sec. 3A1.1
(Hate Crime Motivation or Vulnerable Victim) or Sec. 3A1.5 (Serious
Human Rights Offense); and
(10) the defendant did not receive an adjustment under Sec. 3B1.1
(Aggravating Role) and was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. 848;
decrease the offense level determined under Chapters Two and Three
by 2 levels.
(b) Definitions and Additional Considerations.--
(1) `Dangerous weapon,' `firearm,' `offense,' and `serious bodily
injury' have the meaning given those terms in the Commentary to Sec.
1B1.1 (Application Instructions).
(2) `Sex offense' means (A) an offense, perpetrated against a
minor, under (i) chapter 109A of title 18, United States Code; (ii)
chapter 110 of title 18, not including a recordkeeping offense; (iii)
chapter 117 of title 18, not including transmitting information about a
minor or filing a factual statement about an alien individual; or (iv)
18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any offense
described in subparagraphs (A)(i) through (iv) of this definition.
(3) In determining whether the defendant's acts or omissions
resulted in `substantial financial hardship' to a victim, the court
shall consider, among other things, the non-exhaustive list of factors
provided in Application Note 4(F) of the Commentary to Sec. 2B1.1
(Theft, Property Destruction, and Fraud).
Commentary
Application Notes:
1. Application of Subsection (a)(6).--The application of subsection
(a)(6) is to be determined independently of the application of
subsection (b)(2) of Sec. 2B1.1 (Theft, Property Destruction, and
Fraud).
2. Upward Departure.--An upward departure may be warranted if an
adjustment under this guideline substantially underrepresents the
seriousness of the defendant's criminal history. For example, an upward
departure may be warranted if the defendant has a prior conviction or
other comparable judicial disposition for an offense that involved
violence or credible threats of violence.''.
Subpart 2 (Implementation of 28 U.S.C. 994(j))
The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is
amended--
by inserting at the beginning of Note 1 the following new heading:
``Application of Subsection (a).--'';
by inserting at the beginning of Note 2 the following new heading:
``Application of Subsection (b).--'';
by inserting at the beginning of Note 3 the following new heading:
``Application of Subsection (c).--'';
by striking Note 4 as follows:
``If the defendant is a nonviolent first offender and the
applicable guideline range is in Zone A or B of the Sentencing Table,
the court should consider imposing a sentence other than a sentence of
imprisonment, in accordance with subsection (b) or (c)(3). See 28
U.S.C. 994(j). For purposes of this application note, a `nonviolent
first offender' is a defendant who has no prior convictions or other
comparable judicial dispositions of any kind and who did not use
violence or credible threats of violence or possess a firearm or other
dangerous weapon in connection with the offense of conviction. The
phrase `comparable judicial dispositions of any kind' includes
diversionary or deferred dispositions resulting from a finding or
admission of guilt or a plea of nolo contendere and juvenile
adjudications.'';
by redesignating Notes 5 through 10 as Notes 4 through 9,
respectively;
by inserting at the beginning of Note 4 (as so redesignated) the
following new
[[Page 28272]]
heading: ``Application of Subsection (d).--'';
by inserting at the beginning of Note 5 (as so redesignated) the
following new heading: ``Application of Subsection (e).--'';
by inserting at the beginning of Note 6 (as so redesignated) the
following new heading: ``Departures Based on Specific Treatment
Purpose.--'';
by inserting at the beginning of Note 7 (as so redesignated) the
following new heading: ``Use of Substitutes for Imprisonment.--'';
by inserting at the beginning of Note 8 (as so redesignated) the
following new heading: ``Residential Treatment Program.--'';
by inserting at the beginning of Note 9 (as so redesignated) the
following new heading: ``Application of Subsection (f).--'';
and by inserting at the end the following new Note 10:
``10. Zero-Point Offenders.--
(A) Zero-Point Offenders in Zones A and B of the Sentencing
Table.--If the defendant received an adjustment under Sec. 4C1.1
(Adjustment for Certain Zero-Point Offenders) and the defendant's
applicable guideline range is in Zone A or B of the Sentencing Table, a
sentence other than a sentence of imprisonment, in accordance with
subsection (b) or (c)(3), is generally appropriate. See 28 U.S.C.
994(j).
(B) Departure for Cases Where the Applicable Guideline Range
Overstates the Gravity of the Offense.--A departure, including a
departure to a sentence other than a sentence of imprisonment, may be
appropriate if the defendant received an adjustment under Sec. 4C1.1
(Adjustment for Certain Zero-Point Offenders) and the defendant's
applicable guideline range overstates the gravity of the offense
because the offense of conviction is not a crime of violence or an
otherwise serious offense. See 28 U.S.C. 994(j).''.
Subpart 3 (Additional Changes)
Chapter One, Part A is amended in Subpart 1(4)(d) (Probation and
Split Sentences)--
by adding an asterisk after ``community confinement or home
detention.'';
by adding a second asterisk after ``through departures.*'';
and by striking the following Note:
``*Note: Although the Commission had not addressed `single acts of
aberrant behavior' at the time the Introduction to the Guidelines
Manual originally was written, it subsequently addressed the issue in
Amendment 603, effective November 1, 2000. (See USSG App. C, amendment
603.)'',
and inserting the following Notes:
``*Note: The Commission expanded Zones B and C of the Sentencing
Table in 2010 to provide a greater range of sentencing options to
courts with respect to certain offenders. (See USSG App. C, amendment
738.) In 2018, the Commission added a new application note to the
Commentary to Sec. 5C1.1 (Imposition of a Term of Imprisonment),
stating that if a defendant is a `nonviolent first offender and the
applicable guideline range is in Zone A or B of the Sentencing Table,
the court should consider imposing a sentence other than a sentence of
imprisonment.' (See USSG App. C, amendment 801.) In 2023, the
Commission added a new Chapter Four guideline, at Sec. 4C1.1
(Adjustment for Certain Zero-Point Offenders), providing a decrease of
2 levels from the offense level determined under Chapters Two and Three
for `zero-point' offenders who meet certain criteria. In addition, the
Commission further amended the Commentary to Sec. 5C1.1 to address the
alternatives to incarceration available to `zero-point' offenders by
revising the application note in Sec. 5C1.1 that addressed `nonviolent
first offenders' to focus on `zero-point' offenders. (See USSG App. C,
amendment 821.)
**Note: Although the Commission had not addressed `single acts of
aberrant behavior' at the time the Introduction to the Guidelines
Manual originally was written, it subsequently addressed the issue in
Amendment 603, effective November 1, 2000. (See USSG App. C, amendment
603.)''.
Section 4A1.3(b)(2)(A) is amended by striking ``A departure'' and
inserting ``Unless otherwise specified, a departure''.
The Commentary to Sec. 4A1.3 captioned ``Application Notes'' is
amended in Note 3 by striking ``due to the fact that the lower limit of
the guideline range for Criminal History Category I is set for a first
offender with the lowest risk of recidivism'' and inserting ``unless
otherwise specified''.
Part C (Impact of Simple Possession of Marihuana Offenses)
The Commentary to Sec. 4A1.3 captioned ``Application Notes'', as
amended by Part B, Subpart 3 of this amendment, is further amended in
Note 3 by striking the following:
``Downward Departures.--A downward departure from the defendant's
criminal history category may be warranted if, for example, the
defendant had two minor misdemeanor convictions close to ten years
prior to the instant offense and no other evidence of prior criminal
behavior in the intervening period. A departure below the lower limit
of the applicable guideline range for Criminal History Category I is
prohibited under subsection (b)(2)(A), unless otherwise specified.'',
and inserting the following:
``Downward Departures.--
(A) Examples.--A downward departure from the defendant's criminal
history category may be warranted based on any of the following
circumstances:
(i) The defendant had two minor misdemeanor convictions close to
ten years prior to the instant offense and no other evidence of prior
criminal behavior in the intervening period.
(ii) The defendant received criminal history points from a sentence
for possession of marihuana for personal use, without an intent to sell
or distribute it to another person.
(B) Downward Departures from Criminal History Category I.--A
departure below the lower limit of the applicable guideline range for
Criminal History Category I is prohibited under subsection (b)(2)(A),
unless otherwise specified.''.
Reason for Amendment: This amendment is the result of several
Commission studies regarding the nature of the criminal history of
federal offenders, including analyses of the number and types of prior
convictions included as criminal history and the ability of the
criminal history rules to predict an offender's likelihood of rearrest.
While these studies continue to recognize the close association between
an offender's criminal history calculation under the guidelines and the
likelihood of future recidivism, the amendment makes targeted changes
to reduce the impact of providing additional criminal history points
for offenders under a criminal justice sentence (commonly known as
``status points''), to reduce recommended guideline ranges for
offenders with zero criminal history points under the guidelines
(``zero-point offenders''), and to recognize the changing legal
landscape as it pertains to simple possession of marihuana offenses.
These targeted amendments balance the Commission's mission of
implementing data-driven sentencing policies with its duty to craft
penalties that reflect the statutory purposes of sentencing.
Part A--Status Points
Part A of the amendment addresses ``status points'' for offenders,
namely the additional criminal history points given to offenders for
the fact of having committed the instant offense while under a criminal
justice sentence,
[[Page 28273]]
including probation, parole, supervised release, imprisonment, work
release, or escape status. The amendment redesignates current
subsection (d) of Sec. 4A1.1, which addresses ``status points,'' as
subsection (e) and redesignates current subsection (e), which addresses
multiple crimes of violence treated as a single sentence, as subsection
(d). This redesignation is made for ease of application.
Under the previous ``status points'' provision, two criminal
history points were added under Sec. 4A1.1(d) if the defendant
committed the instant offense ``while under any criminal justice
sentence, including probation, parole, supervised release,
imprisonment, work release, or escape status.'' The amendment limits
the overall criminal history impact of ``status points'' in two ways.
First, as revised, the ``status points'' provision under redesignated
subsection (e) applies only to offenders with more serious criminal
histories under the guidelines by requiring that an offender have seven
or more criminal history points under subsections (a) through (d) in
addition to having been under a criminal justice sentence at the time
of the instant offense. Offenders with six or fewer criminal history
points under subsections (a) through (d) will no longer receive
``status points.'' Second, the amendment also reduces from two points
to one point the ``status points'' assessed for offenders to whom the
revised provision applies. Part A of the amendment also makes
conforming changes to the Commentary to Sec. 4A1.1, Sec. 2P1.1
(Escape, Instigating or Assisting Escape), and Sec. 4A1.2 (Definitions
and Instructions for Computing Criminal History).
As part of its study of criminal history, the Commission found that
``status points'' are relatively common in cases with at least one
criminal history point, having been applied in 37.5 percent of cases
with criminal history points over the last five fiscal years. Of the
offenders who received ``status points,'' 61.5 percent had a higher
Criminal History Category as a result of the addition of the ``status
points.'' The Commission also recently published a series of research
reports regarding the recidivism rates of federal offenders. See, e.g.,
U.S. Sent'g Comm'n, Recidivism of Federal Offenders Released in 2010
(2021), available at https://www.ussc.gov/research/research-reports/recidivism-federal-offenders-released-2010. These reports again
concluded that an offender's criminal history calculation under the
guidelines is strongly associated with the likelihood of future
recidivism by the defendant. In a related publication, the Commission
also found, however, that status points add little to the overall
predictive value associated with the criminal history score. See U.S.
Sent'g Comm'n, Revisiting Status Points (2022), available at https://www.ussc.gov/research/research-reports/revisiting-status-points.
The Commission's action to limit the impact of ``status points''
builds upon its tradition of data-driven evolution of the guidelines.
As described in the Introduction to Chapter Four, the original
Commission envisioned status points as ``consistent with the extant
empirical research assessing correlates of recidivism and patterns of
career criminal behavior'' and therefore envisioned ``status points''
as being reflective of, among other sentencing goals, the increased
likelihood of future recidivism. See USSG Ch.4, Pt.A, intro. comment.
The original Commission also explained, however, that it would ``review
additional data insofar as they become available in the future.'' The
Commission's recent research suggests that ``status points'' improve
the predictive value of the criminal history score less than the
original Commission may have expected, suggesting that the treatment of
``status points'' under Chapter Four should be refined.
Accordingly, the Commission determined that it was appropriate to
address several concerns regarding the scope and impact of status
points. In taking these steps, the Commission observed that the
operation of the Guidelines Manual separately accounts for consecutive
punishment imposed upon revocations of supervised release, a likely
occurrence if an offender was under a criminal justice sentence during
the commission of another offense. The Commission further recognized
that it is also possible that an offender's criminal history score
would be independently increased as the result of additional time
imposed as the result of a revocation of probation or supervised
release for the offense that also results in the addition of status
points.
At the same time, by retaining ``status points'' for those
offenders in higher criminal history categories, the Commission
continues to recognize that ``status points,'' like the other criminal
history provisions in Chapter Four, reflect and serve multiple purposes
of sentencing, including the offender's perceived lack of respect for
the law, as reflected both in the offender's overall criminal history
and the fact that the offender has reoffended while under a criminal
justice sentence ordered by a court. See 18 U.S.C. 3553(a)(2)(A)-(C).
The Commission concluded that accounting for status on a more
limited basis continues to serve the broader purposes of sentencing
while also addressing other concerns raised regarding the impact of
status points.
Part B--Zero-Point Offenders
Part B of the amendment includes three subparts making changes
pertaining to offenders who did not receive any criminal history points
from Chapter Four, Part A. Subpart 1 provides for an adjustment for
certain offenders with zero criminal history points. Subpart 2 revises
Sec. 5C1.1 (Imposition of a Term of Imprisonment) to implement the
congressional directive at 28 U.S.C. 994(j). Finally, Subpart 3 makes
other conforming changes.
Subpart 1--Adjustment for Certain Zero-Point Offenders
Subpart 1 of Part B of the amendment creates a new Chapter Four
guideline at Sec. 4C1.1 (Adjustment for Certain Zero-Point Offenders).
New Sec. 4C1.1 provides a decrease of two levels from the offense
level determined under Chapters Two and Three for offenders who did not
receive any criminal history points under Chapter Four, Part A and
whose instant offense did not involve specified aggravating factors. In
establishing new Sec. 4C1.1, the Commission was informed by its
studies of recidivism among federal offenders, as well as other
extensive data analyses of offenders with no criminal history points,
and public comment. The Sentencing Table in Chapter Five, Part A is
divided into six criminal history categories, from I (lowest) to VI
(highest). Criminal History Category I includes offenders with zero
criminal history points and those with one criminal history point.
Recidivism data analyzed by the Commission shows, however, that
offenders with zero criminal history points have considerably lower
recidivism rates than other offenders, including offenders with one
criminal history point. See U.S. Sent'g Comm'n, Recidivism of Federal
Offenders Released in 2010 (2021), available at https://www.ussc.gov/research/research-reports/recidivism-federal-offenders-released-2010.
Among other findings, the report concluded that ``zero-point
offenders'' were less likely to be rearrested than ``one point''
offenders (26.8% compared to 42.3%), the largest variation of any
comparison of offenders within the same Criminal History Category.
In promulgating this change, the Commission also considered the
rates of departures and variances in cases involving offenders with no
criminal history points. The Commission has
[[Page 28274]]
long viewed the rates and extents of departures and variances from the
applicable guideline ranges as a feedback mechanism from the courts
that a particular area of the guidelines may warrant further review and
possible amendment. In fiscal year 2021, 39.2 percent of offenders with
zero criminal history points received a sentence within the guidelines
range; by comparison, 47.4 percent of offenders with one criminal
history point were sentenced within the guideline range. The Commission
determined that the departure and variance rates for zero-point
offenders, coupled with its recidivism data, warranted action.
The amendment applies to offenders with no criminal history points,
including (1) offenders with no prior convictions; (2) offenders who
have prior convictions that are not counted because those convictions
were not within the time limits set forth in subsection (d) and (e) of
Sec. 4A1.2 (Definitions and Instructions for Computing Criminal
History); and (3) offenders who have prior convictions that are not
used in computing the criminal history category for reasons other than
their ``staleness'' (e.g., sentences resulting from foreign or tribal
court convictions, minor misdemeanor convictions, or infractions). In
adopting this definition of ``zero-point offenders,'' the Commission
opted to hew to the long-standing and carefully crafted criminal
history rules set forth in Chapter Four, regarding which prior
convictions count for criminal history purposes and which do not. The
Commission also observed that attempts to exclude offenders with
certain prior convictions could lead to increased complexity and
litigation and require the additional practical step of investigating
prior unscorable offenses for which records may not be readily
available.
While determining that a reduction is appropriate for some
offenders with zero criminal history points, the Commission also
identified circumstances in which zero-point offenders are
appropriately excluded from eligibility in light of the seriousness of
the instant offense of conviction or the existence of aggravating
factors in the instant offense (e.g., where the offender used violence
or credible threats of violence in connection with the offense or where
the instant offense of conviction was a ``sex offense''). The
exclusionary criteria identified by the Commission were again informed
by extensive data analyses and public comment. The Commission was also
informed by existing legislation, including the congressionally
established criteria for the statutory safety valve at 18 U.S.C.
3553(f) and the recent firearms legislation set forth in the Bipartisan
Safer Communities Act.
Subpart 2--Implementation of 28 U.S.C. 994(j)
Subpart 2 of Part B of the amendment revises the Commentary to
Sec. 5C1.1 (Imposition of a Term of Imprisonment) that addresses
``nonviolent first offenders.'' New Application Note 10(A) provides
that if the defendant received an adjustment under new Sec. 4C1.1 and
the defendant's applicable guideline range is in Zone A or B of the
Sentencing Table, a sentence other than a sentence of imprisonment, in
accordance with subsection (b) or (c)(3), is generally appropriate. New
Application Note 10(B) adds a corresponding departure provision
providing that a departure, including a departure to a sentence other
than a sentence of imprisonment, may be appropriate if the offender
received an adjustment under new Sec. 4C1.1 and the applicable
guideline range overstates the gravity of the offense because the
offense of conviction is not a crime of violence or an otherwise
serious offense.
The changes to the Commentary to Sec. 5C1.1 respond to Congress's
directive to the Commission at 28 U.S.C. 994(j), directing the
Commission to ensure that the guidelines reflect the general
appropriateness of imposing a sentence other than imprisonment in cases
in which the defendant is a first offender who has not been convicted
of a crime of violence or an otherwise serious offense. The Commission
determined that the revised commentary serves Congress's intent in
promulgating section 994(j) while providing appropriate limitations and
guidance through reliance on the criteria set forth in new Sec. 4C1.1
and the specific statutory language set forth in section 994(j).
Subpart 3--Additional Changes
Subpart 3 of Part B of the amendment makes a corresponding change
to subsection (b)(2)(A) of Sec. 4A1.3 (Departures Based on Inadequacy
of Criminal History Category (Policy Statement)) to provide that a
departure below the lower limit of the applicable guideline range for
Criminal History Category I is prohibited, ``unless otherwise
specified.'' The amendment also revises an explanatory note in Chapter
One, Part A, Subpart 1(4)(d) (Probation and Split Sentences) to detail
amendments to the Guidelines Manual related to the implementation of 28
U.S.C. 994(j), first offenders, and ``zero-point offenders.''
Part C--Impact of Simple Possession of Marihuana Offenses
Part C of the amendment revises the Commentary to Sec. 4A1.3
(Departures Based on Inadequacy of Criminal History Category (Policy
Statement)) to include sentences resulting from possession of marihuana
offenses as an example of when a downward departure from the
defendant's criminal history may be warranted. Specifically, Part C
provides that a downward departure may be warranted if the defendant
received criminal history points from a sentence for possession of
marihuana for personal use, without an intent to sell or distribute it
to another person. Most commenters, including the Department of
Justice, supported this change. See Letter from Jonathan J. Wroblewski,
Dir., Crim. Div., U.S. Dep't of Just., to Hon. Carlton W. Reeves,
Chair, U.S. Sent'g Comm'n (Feb. 27, 2023), in U.S. Sent'g Comm'n, 2022-
2023 Amendment Cycle Proposed Amendments/Public Comment (2023); see
also U.S. Sent'g Comm'n, 2022-2023 Amendment Cycle Proposed Amendments/
Public Comment (2023) (providing numerous public comment supporting the
amendment).
The Commission also relied upon its recently published report on
the impact of simple possession of marihuana offenses on sentencing.
See U.S. Sent'g Comm'n, Weighing the Impact of Simple Possession of
Marijuana: Trends and Sentencing in the Federal System (2023),
available at https://www.ussc.gov/research/research-reports/weighing-impact-simple-possession-marijuana. In that study, the Commission found
that 4,405 federal offenders (8.0%) received criminal history points
under the federal sentencing guidelines for prior marihuana possession
sentences in fiscal year 2021. Most such prior sentences were for state
court convictions resulting in less than 60 days in prison or non-
custodial sentences. The Commission also found informative that ten
percent (10.2%) of these 4,405 offenders had no other criminal history
points, and that for 40 percent (40.1%) of the 4,405 offenders (1,765),
the criminal history points for prior marihuana possession sentences
resulted in a higher Criminal History Category.
9. Amendment: The Commentary to Sec. 2L1.2 captioned ``Application
Notes'' is amended in Note 2, in the paragraph that begins '' `Crime of
violence' means'', by inserting after ``territorial jurisdiction of the
United States.'' the following: '' `Robbery' is the unlawful taking or
obtaining of personal property
[[Page 28275]]
from the person or in the presence of another, against his will, by
means of actual or threatened force, or violence, or fear of injury,
immediate or future, to his person or property, or property in his
custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at the time of the
taking or obtaining. The phrase `actual or threatened force' refers to
force that is sufficient to overcome a victim's resistance.''.
Section 4B1.2(a) is amended--
by inserting at the beginning the following new heading ``Crime of
Violence.--'';
and in paragraph (1) by striking ``another,'' and inserting
``another;''.
Section 4B1.2(b) is amended by striking the following:
``The term `controlled substance offense' means an offense under
federal or state law, punishable by imprisonment for a term exceeding
one year, that prohibits the manufacture, import, export, distribution,
or dispensing of a controlled substance (or a counterfeit substance) or
the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense.'',
and inserting the following:
``Controlled Substance Offense.--The term `controlled substance
offense' means an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that--
(1) prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or
the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense; or
(2) is an offense described in 46 U.S.C. 70503(a) or Sec.
70506(b).''.
Section 4B1.2(c) is amended by inserting at the beginning the
following new heading ``Two Prior Felony Convictions.--''.
Section 4B1.2 is amended by inserting at the end the following two
new subsections (d) and (e):
``(d) Inchoate Offenses Included.--The terms `crime of violence'
and `controlled substance offense' include the offenses of aiding and
abetting, attempting to commit, or conspiring to commit any such
offense.
(e) Additional Definitions.--
(1) Forcible Sex Offense.--`Forcible sex offense' includes where
consent to the conduct is not given or is not legally valid, such as
where consent to the conduct is involuntary, incompetent, or coerced.
The offenses of sexual abuse of a minor and statutory rape are included
only if the sexual abuse of a minor or statutory rape was (A) an
offense described in 18 U.S.C. 2241(c) or (B) an offense under state
law that would have been an offense under section 2241(c) if the
offense had occurred within the special maritime and territorial
jurisdiction of the United States.
(2) Extortion.--`Extortion' is obtaining something of value from
another by the wrongful use of (A) force, (B) fear of physical injury,
or (C) threat of physical injury.
(3) Robbery.--`Robbery' is the unlawful taking or obtaining of
personal property from the person or in the presence of another,
against his will, by means of actual or threatened force, or violence,
or fear of injury, immediate or future, to his person or property, or
property in his custody or possession, or the person or property of a
relative or member of his family or of anyone in his company at the
time of the taking or obtaining. The phrase `actual or threatened
force' refers to force that is sufficient to overcome a victim's
resistance.
(4) Prior Felony Conviction.--`Prior felony conviction' means a
prior adult federal or state conviction for an offense punishable by
death or imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed. A conviction for an offense
committed at age eighteen or older is an adult conviction. A conviction
for an offense committed prior to age eighteen is an adult conviction
if it is classified as an adult conviction under the laws of the
jurisdiction in which the defendant was convicted (e.g., a federal
conviction for an offense committed prior to the defendant's eighteenth
birthday is an adult conviction if the defendant was expressly
proceeded against as an adult).''.
The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is
amended in Note 1--
in the heading by striking ``Definitions.--'' and inserting
``Further Considerations Regarding `Crime of Violence' and `Controlled
Substance Offense'.--'';
by striking the first three paragraphs as follows:
`` `Crime of violence' and `controlled substance offense' include
the offenses of aiding and abetting, conspiring, and attempting to
commit such offenses.
`Forcible sex offense' includes where consent to the conduct is not
given or is not legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced. The offenses of sexual abuse of a
minor and statutory rape are included only if the sexual abuse of a
minor or statutory rape was (A) an offense described in 18 U.S.C.
2241(c) or (B) an offense under state law that would have been an
offense under section 2241(c) if the offense had occurred within the
special maritime and territorial jurisdiction of the United States.
`Extortion' is obtaining something of value from another by the
wrongful use of (A) force, (B) fear of physical injury, or (C) threat
of physical injury.'';
and by striking the last paragraph as follows:
`` `Prior felony conviction' means a prior adult federal or state
conviction for an offense punishable by death or imprisonment for a
term exceeding one year, regardless of whether such offense is
specifically designated as a felony and regardless of the actual
sentence imposed. A conviction for an offense committed at age eighteen
or older is an adult conviction. A conviction for an offense committed
prior to age eighteen is an adult conviction if it is classified as an
adult conviction under the laws of the jurisdiction in which the
defendant was convicted (e.g., a federal conviction for an offense
committed prior to the defendant's eighteenth birthday is an adult
conviction if the defendant was expressly proceeded against as an
adult).''.
Reason for Amendment: This amendment is a result of the
Commission's work on Sec. 4B1.2 (Definitions of Terms Used in Section
4B1.1) regarding several application issues that have arisen in the
context of the career offender guideline. As part of this study, the
Commission considered varying case law interpreting certain guideline
definitions and commentary to the guideline. Informed by the case law,
public comment and relevant sentencing data, this amendment
specifically addresses application issues regarding the meaning of
``robbery'' and ``extortion'' and the treatment of inchoate offenses.
The amendment also makes necessary changes to further implement the
congressional directive at 28 U.S.C. 994(h).
The amendment makes several changes to address a circuit conflict
regarding the authoritative weight afforded to certain commentary to
Sec. 4B1.2. The commentary to Sec. 4B1.2 prior to the amendment
provided that the definitions of ``crime of violence'' and ``controlled
substance offense'' include the offenses of aiding and abetting,
conspiring, and attempting to commit such offenses. Although most
circuits had previously held that this commentary was authoritative
under Stinson v. United States, 508 U.S. 36
[[Page 28276]]
(1993), several courts have now concluded that the guideline definition
of ``controlled substance offense'' does not include inchoate offenses
because such offenses are not expressly included in the guideline text.
See United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc);
United States v. Campbell, 22 F.4th 438 (4th Cir. 2022); United States
v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc); United States v.
Havis, 927 F.3d 382 (6th Cir. 2019) (en banc); United States v.
Winstead, 890 F.3d 1082 (D.C. Cir. 2018). Several courts held that the
Commission exceeded its authority under Stinson when it attempted to
incorporate inchoate offenses into Sec. 4B1.2(b)'s definition through
the commentary, finding that the commentary can only interpret or
explain the guideline, it cannot expand its scope by adding qualifying
offenses. See, e.g., Havis, 927 F.3d at 385-87. More recently, courts
have relied on Kisor v. Wilkie, 139 S. Ct. 2400 (2022), to hold that
guideline commentary should not be afforded deference unless the
guideline text is genuinely ambiguous. See, e.g., Dupree, 57 F.4th at
1275. Applying the Kisor holding to the guidelines, courts have
concluded that the plain language definition of ``controlled substance
offense'' in Sec. 4B1.2 unambiguously excludes inchoate offenses.
Similarly, courts have held that ``crime of violence'' excludes
conspiracies because the Sec. 4B1.2 commentary does not warrant Kisor
deference. See, e.g., United States v. Abreu, 32 F.4th 271, 277-78 (3d
Cir. 2022).
The amendment addresses this circuit conflict by moving, without
change, the commentary including certain inchoate and accessory
offenses in the definitions of ``crime of violence'' and ``controlled
substance offense'' to the text of the guideline. While not the subject
of the circuit conflict, the amendment also moves the definitions of
enumerated offenses (i.e., ``forcible sex offense'' and ``extortion'')
and ``prior felony conviction'' from the commentary to a new subsection
(e) in the guideline to avoid similar challenges to their
applicability.
The amendment next addresses a concern that Hobbs Act robbery
offenses no longer qualify as ``crimes of violence'' under Sec. 4B1.2.
In 2016, the Commission amended Sec. 4B1.2 to, among other things,
delete the ``residual clause'' and revise the ``enumerated clause'' by
moving enumerated offenses that were previously listed in the
commentary to the guideline itself. Although the guideline generally
relies on existing case law for purposes of defining most enumerated
offenses, the amendment added to the Commentary to Sec. 4B1.2
definitions for two of the enumerated offenses: ``forcible sex
offense'' and ``extortion.'' Consistent with the Commission's goal of
focusing the career offender and related enhancements on the most
dangerous offenders, the amendment narrowed the generic definition of
extortion by limiting it to offenses having an element of force or an
element of fear or threat ``of physical injury,'' as opposed to non-
violent threats such as injury to reputation. As such, extortion is
defined as ``obtaining something of value from another by the wrongful
use of (A) force, (B) fear of physical injury, or (C) threat of
physical injury.''
After the 2016 amendment, every Court of Appeals addressing the
issue under the guidelines has held that Hobbs Act robbery is not a
``crime of violence'' under Sec. 4B1.2, reasoning that neither generic
robbery nor the guidelines definition of extortion encompass threats
against property while the Hobbs Act defines ``robbery'' as, among
other things, ``the unlawful taking or obtaining of personal property .
. . by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property . . . .'' See 18
U.S.C. 1951(b)(1) (emphasis added); United States v. Chappelle, 41
F.4th 102 (2d Cir. 2022); United States v. Scott, 14 F.4th 190 (3d Cir.
2021); United States v. Prigan, 8 F.4th 1115 (9th Cir. 2021); United
States v. Green, 996 F.3d 176 (4th Cir. 2021); Bridges v. United
States, 991 F.3d 793 (7th Cir. 2021); United States v. Eason, 953 F.3d
1184 (11th Cir. 2020); United States v. Camp, 903 F.3d 594 (6th Cir.
2018); United States v. O'Connor, 874 F.3d 1147 (10th Cir. 2017).
The amendment amends Sec. 4B1.2 to add to the new subsection (e) a
definition of ``robbery'' that mirrors the ``robbery'' definition at 18
U.S.C. 1951(b)(1) and makes a conforming change to Sec. 2L1.2 (Illegal
Reentry), which also includes robbery as an enumerated offense. The
Commission views the recent decisions holding that Hobbs Act robbery is
not a crime of violence under the guidelines as an unintended
consequence of the 2016 amendment to the career offender guideline
meant to remove threats to reputation. In addition, the Commission
conducted an analysis of recent cases and found that the Hobbs Act
robberies overwhelmingly involved violence.
The amendment clarifies that ``actual or threatened force'' for
purposes of the new ``robbery'' definition is ``force sufficient to
overcome a victim's resistance.'' The Commission concludes that such
definition, relying on the Supreme Court's decision in Stokeling v.
United States, 139 S. Ct. 544 (2019), would eliminate potential
litigation over the meaning of actual or threatened force in this
context and is consistent with the level of force necessary for a
robbery under the force clause.
Finally, the amendment revises the definition of ``controlled
substance offense'' in Sec. 4B1.2(b) to include ``an offense described
in 46 U.S.C. 70503(a) or Sec. 70506(b).'' The directive at 28 U.S.C.
994(h) instructs the Commission to assure that ``the guidelines specify
a term of imprisonment at or near the maximum term authorized'' for
offenders who are 18 years or older and have been convicted of a felony
that is, and have previously been convicted of two or more felonies
that are, among other things, ``an offense described in . . . chapter
705 of title 46.'' See 28 U.S.C. 994(h). In 2016, Congress enacted the
Coast Guard Authorization Act of 2015, Public Law 114-120 (2016), which
amended Chapter 705 of Title 46 by adding two new offenses to section
70503(a), in subparagraphs (2) and (3). Following this statutory
change, these two new offenses are not covered by the pre-amendment
definition of ``controlled substance offense'' in Sec. 4B1.2 as
required by the directive.
10. Amendment: Section 3D1.2(d) is amended by striking ``Sec. Sec.
2G1.1, 2G2.1;'' and inserting ``Sec. Sec. 2G1.1, 2G1.3, 2G2.1;''.
The Commentary to Sec. 5F1.7 captioned ``Background'' is amended--
by striking ``six months'' and inserting ``6 months'';
by striking ``as the Bureau deems appropriate. 18 U.S.C. 4046.' ''
and inserting ``as the Bureau deems appropriate.' 18 U.S.C. 4046.'';
and by striking the final paragraph as follows:
``The Bureau of Prisons has issued an operations memorandum (174-90
(5390), November 20, 1990) that outlines eligibility criteria and
procedures for the implementation of this program (which the Bureau of
Prisons has titled `intensive confinement program'). Under these
procedures, the Bureau will not place a defendant in an intensive
confinement program unless the sentencing court has approved, either at
the time of sentencing or upon consultation after the Bureau has
determined that the defendant is otherwise eligible. In return for the
successful completion of the `intensive confinement' portion of the
program, the defendant is eligible to serve the remainder of his term
of imprisonment in a graduated release program comprised of community
[[Page 28277]]
corrections center and home confinement phases.'',
and inserting the following:
``In 1990, the Bureau of Prisons issued an operations memorandum
(174-90 (5390), November 20, 1990) that outlined eligibility criteria
and procedures for the implementation of a shock incarceration program
(which the Bureau of Prisons titled the `intensive confinement
program'). In 2008, however, the Bureau of Prisons terminated the
program and removed the rules governing its operation. See 73 FR 39863
(July 11, 2008).''.
Reason for Amendment: This two-part amendment responds to
miscellaneous guideline application issues.
First, the amendment revises subsection (d) of Sec. 3D1.2
(Grouping of Closely Related Counts) to provide that multiple counts
involving more than one victim sentenced under Sec. 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)
are explicitly excluded from grouping under Sec. 3D1.2(d). Subsection
3D1.2(d) provides that certain guidelines are excluded from the
operation of the grouping rules in Chapter Three, Part D (Multiple
Counts). Among the guidelines specifically excluded under Sec.
3D1.2(d) is Sec. 2G1.1 (Promoting a Commercial Sex Act or Prohibited
Sexual Conduct with an Individual Other than a Minor). When Sec. 2G1.3
was promulgated in 2004, some offenses that were originally referenced
to Sec. 2G1.1 were moved to the new Sec. 2G1.3, but Sec. 2G1.3 was
not added to the list of excluded guidelines at Sec. 3D1.2(d). See
USSG App. C, amend. 664 (effective date: Nov. 1, 2004). The amendment
corrects that oversight and treats Sec. 2G1.3 similarly to Sec.
2G1.1.
Second, the amendment updates the Commentary to Sec. 5F1.7 (Shock
Incarceration Program (Policy Statement)) to reflect that the Bureau of
Prisons (BOP) no longer operates a shock incarceration program. The
Commentary to Sec. 5F1.7 describes the authority of the BOP to operate
a shock incarceration program and the procedures that the BOP
established in 1990 regarding operation of such a program. However, the
BOP terminated its shock incarceration program and removed the rules
governing its operation in 2008. The amendment updates the Commentary
to Sec. 5F1.7 to reflect that shock incarceration is no longer a
potential sentencing option, foreclosing any potential confusion on its
current availability.
11. Amendment: The Commentary to Sec. 1B1.1 captioned
``Application Notes'' is amended in Note 1(E) by striking ``(e.g. a
defendant'' and inserting ``(e.g., a defendant''.
The Commentary to Sec. 1B1.3 captioned ``Background'' is amended
by striking ``the guidelines in those Chapters'' and inserting ``the
guidelines in those chapters''.
The Commentary to Sec. 1B1.4 captioned ``Background'' is amended
by striking ``in imposing sentence within that range'' and inserting
``in imposing a sentence within that range''.
The Commentary to Sec. 1B1.10 captioned ``Background'' is amended
by striking ``Title 18'' and inserting ``title 18''.
The Commentary to Sec. 1B1.11 captioned ``Background'' is amended
by striking ``133 S. Ct. 2072, 2078'' and inserting ``569 U.S. 530,
533''.
The Commentary to Sec. 2A4.2 captioned ``Statutory Provisions'' is
amended by striking ``Sec. Sec. 876,'' and inserting ``Sec. Sec.
876(a),''.
The Commentary to Sec. 2A6.1 captioned ``Statutory Provisions'' is
amended by striking ``876,'' and inserting ``876(c),''.
The Commentary to Sec. 2B3.2 captioned ``Statutory Provisions'' is
amended by striking ``Sec. Sec. 875(b), 876,'' and inserting
``Sec. Sec. 875(b), (d), 876(b), (d),''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended--
in Note 8(A) by striking ``the statute (21 U.S.C. 841(b)(1)), as
the primary basis'' and inserting ``the statute (21 U.S.C. 841(b)(1))
as the primary basis'', and by striking ``fentanyl, LSD and marihuana''
and inserting ``fentanyl, LSD, and marihuana'';
in Note 8(D)--
under the heading relating to Schedule I or II Opiates, by striking
the following:
``1 gm of Heroin = 1 kg
1 gm of Dextromoramide = 670 gm
1 gm of Dipipanone = 250 gm
1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine/MPPP = 700 gm
1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine/PEPAP = 700 gm
1 gm of Alphaprodine = 100 gm
1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
Propanamide) = 2.5 kg
1 gm of a Fentanyl Analogue = 10 kg
1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg
1 gm of Levorphanol = 2.5 kg
1 gm of Meperidine/Pethidine = 50 gm
1 gm of Methadone = 500 gm
1 gm of 6-Monoacetylmorphine = 1 kg
1 gm of Morphine = 500 gm
1 gm of Oxycodone (actual) = 6700 gm
1 gm of Oxymorphone = 5 kg
1 gm of Racemorphan = 800 gm
1 gm of Codeine = 80 gm
1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm
1 gm of Ethylmorphine = 165 gm
1 gm of Hydrocodone (actual) = 6700 gm
1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm
1 gm of Opium = 50 gm
1 gm of Levo-alpha-acetylmethadol (LAAM) = 3 kg'',
and inserting the following:
``1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine (PEPAP) =
700 gm
1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine (MPPP) = 700 gm
1 gm of 6-Monoacetylmorphine = 1 kg
1 gm of Alphaprodine = 100 gm
1 gm of Codeine = 80 gm
1 gm of Dextromoramide = 670 gm
1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm
1 gm of Dipipanone = 250 gm
1 gm of Ethylmorphine = 165 gm
1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
Propanamide) = 2.5 kg
1 gm of a Fentanyl Analogue = 10 kg
1 gm of Heroin = 1 kg
1 gm of Hydrocodone (actual) = 6,700 gm
1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg
1 gm of Levo-alpha-acetylmethadol (LAAM) = 3 kg
1 gm of Levorphanol = 2.5 kg
1 gm of Meperidine/Pethidine = 50 gm
1 gm of Methadone = 500 gm
1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm
1 gm of Morphine = 500 gm
1 gm of Opium = 50 gm
1 gm of Oxycodone (actual) = 6,700 gm
1 gm of Oxymorphone = 5 kg
1 gm of Racemorphan = 800 gm'';
under the heading relating to Cocaine and Other Schedule I and II
Stimulants (and their immediate precursors), by striking the following:
``1 gm of Cocaine = 200 gm
1 gm of N-Ethylamphetamine = 80 gm
1 gm of Fenethylline = 40 gm
1 gm of Amphetamine = 2 kg
1 gm of Amphetamine (Actual) = 20 kg
1 gm of Methamphetamine = 2 kg
1 gm of Methamphetamine (Actual) = 20 kg
1 gm of ``Ice'' = 20 kg
1 gm of Khat = .01 gm
1 gm of 4-Methylaminorex (`Euphoria') = 100 gm
[[Page 28278]]
1 gm of Methylphenidate (Ritalin) = 100 gm
1 gm of Phenmetrazine = 80 gm
1 gm Phenylacetone/P2P (when possessed for the purpose of
manufacturing methamphetamine) = 416 gm
1 gm Phenylacetone/P2P (in any other case) = 75 gm
1 gm Cocaine Base (`Crack') = 3,571 gm
1 gm of Aminorex = 100 gm
1 gm of N-N-Dimethylamphetamine = 40 gm
1 gm of N-Benzylpiperazine = 100 gm'',
and inserting the following:
``1 gm of 4-Methylaminorex (`Euphoria') = 100 gm
1 gm of Aminorex = 100 gm
1 gm of Amphetamine = 2 kg
1 gm of Amphetamine (actual) = 20 kg
1 gm of Cocaine = 200 gm
1 gm of Cocaine Base (`Crack') = 3,571 gm
1 gm of Fenethylline = 40 gm
1 gm of `Ice' = 20 kg
1 gm of Khat = .01 gm
1 gm of Methamphetamine = 2 kg
1 gm of Methamphetamine (actual) = 20 kg
1 gm of Methylphenidate (Ritalin) = 100 gm
1 gm of N-Benzylpiperazine = 100 gm
1 gm of N-Ethylamphetamine = 80 gm
1 gm of N-N-Dimethylamphetamine = 40 gm
1 gm of Phenmetrazine = 80 gm
1 gm of Phenylacetone (P2P) (when possessed for the purpose
of manufacturing methamphetamine) = 416 gm
1 gm of Phenylacetone (P2P) (in any other case) = 75 gm'';
under the heading relating to Synthetic Cathinones (except Schedule
III, IV, and V Substances), by striking ``a synthetic cathinone'' and
inserting ``a Synthetic Cathinone'';
under the heading relating to LSD, PCP, and Other Schedule I and II
Hallucinogens (and their immediate precursors), by striking the
following:
``1 gm of Bufotenine = 70 gm
1 gm of D-Lysergic Acid Diethylamide/Lysergide/LSD = 100 kg
1 gm of Diethyltryptamine/DET = 80 gm
1 gm of Dimethyltryptamine/DM = 100 gm
1 gm of Mescaline = 10 gm
1 gm of Mushrooms containing Psilocin and/or
Psilocybin (Dry) = 1 gm
1 gm of Mushrooms containing Psilocin and/or
Psilocybin (Wet) = 0.1 gm
1 gm of Peyote (Dry) = 0.5 gm
1 gm of Peyote (Wet) = 0.05 gm
1 gm of Phencyclidine/PCP = 1 kg
1 gm of Phencyclidine (actual)/PCP (actual) = 10 kg
1 gm of Psilocin = 500 gm
1 gm of Psilocybin = 500 gm
1 gm of Pyrrolidine Analog of Phencyclidine/PHP = 1 kg
1 gm of Thiophene Analog of Phencyclidine/TCP = 1 kg
1 gm of 4-Bromo-2,5-Dimethoxyamphetamine/DOB = 2.5 kg
1 gm of 2,5-Dimethoxy-4-methylamphetamine/DOM = 1.67 kg
1 gm of 3,4-Methylenedioxyamphetamine/MDA = 500 gm
1 gm of 3,4-Methylenedioxymethamphetamine/MDMA = 500 gm
1 gm of 3,4-Methylenedioxy-N-ethylamphetamine/MDEA = 500 gm
1 gm of Paramethoxymethamphetamine/PMA = 500 gm
1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC = 680 gm
1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 1 kg'',
and inserting the following:
``1 gm of 1-Piperidinocyclohexanecarbonitrile (PCC) = 680 gm
1 gm of 4-Bromo-2,5-Dimethoxyamphetamine (DOB) = 2.5 kg
1 gm of 2,5-Dimethoxy-4-methylamphetamine (DOM) = 1.67 kg
1 gm of 3,4-Methylenedioxyamphetamine (MDA) = 500 gm
1 gm of 3,4-Methylenedioxymethamphetamine (MDMA) = 500 gm
1 gm of 3,4-Methylenedioxy-N-ethylamphetamine (MDEA) = 500 gm
1 gm of Bufotenine = 70 gm
1 gm of D-Lysergic Acid Diethylamide/Lysergide (LSD) = 100 kg
1 gm of Diethyltryptamine (DET) = 80 gm
1 gm of Dimethyltryptamine (DM) = 100 gm
1 gm of Mescaline = 10 gm
1 gm of Mushrooms containing Psilocin and/or
Psilocybin (dry) = 1 gm
1 gm of Mushrooms containing Psilocin and/or
Psilocybin (wet) = 0.1 gm
1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 1 kg
1 gm of Paramethoxymethamphetamine (PMA) = 500 gm
1 gm of Peyote (dry) = 0.5 gm
1 gm of Peyote (wet) = 0.05 gm
1 gm of Phencyclidine (PCP) = 1 kg
1 gm of Phencyclidine (PCP) (actual) = 10 kg
1 gm of Psilocin = 500 gm
1 gm of Psilocybin = 500 gm
1 gm of Pyrrolidine Analog of Phencyclidine (PHP) = 1 kg
1 gm of Thiophene Analog of Phencyclidine (TCP) = 1 kg'';
under the heading relating to Schedule I Marihuana, by striking the
following:
``1 gm of Marihuana/Cannabis, granulated, powdered, etc. = 1 gm
1 gm of Hashish Oil = 50 gm
1 gm of Cannabis Resin or Hashish = 5 gm
1 gm of Tetrahydrocannabinol, Organic = 167 gm
1 gm of Tetrahydrocannabinol, Synthetic = 167 gm'',
and inserting the following:
``1 gm of Cannabis Resin or Hashish = 5 gm
1 gm of Hashish Oil = 50 gm
1 gm of Marihuana/Cannabis (granulated, powdered, etc.) = 1 gm
1 gm of Tetrahydrocannabinol (organic) = 167 gm
1 gm of Tetrahydrocannabinol (synthetic) = 167 gm'';
under the heading relating to Synthetic Cannabinoids (except
Schedule III, IV, and V Substances), by striking ``a synthetic
cannabinoid'' and inserting ``a Synthetic Cannabinoid'', and by
striking '' `Synthetic cannabinoid,' for purposes of this guideline''
and inserting '' `Synthetic Cannabinoid,' for purposes of this
guideline'';
under the heading relating to Schedule I or II Depressants (except
gamma-hydroxybutyric acid), by striking ``except gamma-hydroxybutyric
acid'' both places such term appears and inserting ``except Gamma-
hydroxybutyric Acid'';
under the heading relating to Gamma-hydroxybutyric Acid, by
striking ``of gamma-hydroxybutyric acid'' and inserting ``of Gamma-
hydroxybutyric Acid'';
under the heading relating to Schedule III Substances (except
ketamine), by striking ``except ketamine'' in the heading and inserting
``except Ketamine'';
under the heading relating to Ketamine, by striking ``of ketamine''
and inserting ``of Ketamine'';
under the heading relating to Schedule IV (except flunitrazepam),
by striking ``except flunitrazepam'' in the heading and inserting
``except Flunitrazepam'';
under the heading relating to List I Chemicals (relating to the
manufacture of amphetamine or methamphetamine), by striking ``of
amphetamine or methamphetamine'' in the heading and inserting ``of
Amphetamine or Methamphetamine'';
[[Page 28279]]
under the heading relating to Date Rape Drugs (except
flunitrazepam, GHB, or ketamine), by striking ``except flunitrazepam,
GHB, or ketamine'' in the heading and inserting ``except Flunitrazepam,
GHB, or Ketamine'', by striking ``of 1,4-butanediol'' and inserting
``of 1,4-Butanediol'', and by striking ``of gamma butyrolactone'' and
inserting ``of Gamma Butyrolactone'';
in Note 9 in the Typical Weight Per Unit (Dose, Pill, or Capsule)
Table, under the heading relating to Hallucinogens, by striking the
following:
``MDA 250 mg
MDMA 250 mg
Mescaline 500 mg
PCP* 5 mg
Peyote (dry) 12 gm
Peyote (wet) 20 gm
Psilocin* 10 mg
Psilocybe mushrooms (dry) 5 gm
Psilocybe mushrooms (wet) 50 gm
Psilocybin* 10 mg
2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg'',
and inserting the following:
``2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg
MDA 250 mg
MDMA 250 mg
Mescaline 500 mg
PCP* 5 mg
Peyote (dry) 12 gm
Peyote (wet) 120 gm
Psilocin* 10 mg
Psilocybe mushrooms (dry) 5 gm
Psilocybe mushrooms (wet) 50 gm
Psilocybin* 10 mg'';
and in Note 21, by striking ``Section Sec. 5C1.2(b)'' and
inserting ``Section 5C1.2(b)''.
The Commentary to Sec. 2D1.1 captioned ``Background'' is amended
by striking ``Public Law 103-237'' and inserting ``Public Law 104-
237'', and by inserting after ``to change the title of the Drug
Equivalency Tables to the `Drug Conversion Tables.' '' the following:
``See USSG App. C, Amendment 808 (effective November 1, 2018).''.
The Commentary to Sec. 2D2.3 captioned ``Background'' is amended
by striking ``Section 6482'' and inserting ``section 6482''.
Section 2G2.1(b)(6)(A) is amended by striking ``engage sexually
explicit conduct'' and inserting ``engage in sexually explicit
conduct''.
The Commentary to Sec. 2H3.1 captioned ``Application Notes'' is
amended in Note 5(B) by striking ``(e.g. physical harm'' and inserting
``(e.g., physical harm''.
The Commentary to Sec. 2K2.4 captioned ``Statutory Provisions'' is
amended by striking ``Sec. Sec. 844(h)'' and inserting ``Sec. Sec.
844(h), (o)''.
The Commentary to Sec. 2M1.1 captioned ``Background'' is amended
by striking ``this Part'' and inserting ``this part''.
The Commentary to Sec. 2M4.1 captioned ``Statutory Provisions'' is
amended by striking ``50 U.S.C. App. Sec. 462'' and inserting ``50
U.S.C. Sec. 3811''.
The Commentary to Sec. 2M5.1 captioned ``Statutory Provisions'' is
amended by striking ``50 U.S.C. App. Sec. Sec. 2401-2420'' and
inserting ``50 U.S.C. Sec. 4601-4623. For additional statutory
provision(s), see Appendix A (Statutory Index)''.
The Commentary to Sec. 2M5.1 captioned ``Application Notes'' is
amended--
in Note 3 by striking ``50 U.S.C. App. Sec. 2410'' and inserting
``50 U.S.C. Sec. 4610'';
and in Note 4 by striking ``50 U.S.C. App. 2405'' and inserting
``50 U.S.C. Sec. 4605''.
The Commentary to Sec. 2M5.3 captioned ``Application Notes'' is
amended in Note 1, in the paragraph that begins '' `Specially
designated global terrorist' has'', by striking ``Sec. 594.513'' and
inserting ``Sec. 594.310''.
The Commentary to Sec. 2M6.1 captioned ``Application Notes'' is
amended in Note 1--
by striking the following paragraph:
`` `Restricted person' has the meaning given that term in 18 U.S.C.
Sec. 175b(d)(2).'',
and by striking the following paragraph:
`` `Vector' has the meaning given that term in 18 U.S.C. Sec.
178(4).''.
The Commentary to Sec. 2T1.1 captioned ``Application Notes'' is
amended--
in Note 6, in the paragraph that begins `` `Gross income' has'', by
striking ``Sec. 1.61'' and inserting ``Sec. 1.61-1'';
and in Note 7 by striking ``Subchapter C corporation'' and
inserting ``subchapter C corporation''.
The Commentary to Sec. 2T1.1 captioned ``Background'' is amended
by striking ``the treasury'' and inserting ``the Treasury''.
Chapter Two, Part T, Subpart 2 is amended in the introductory
commentary by striking ``Parts I-IV of Subchapter J of Chapter 51 of
Subtitle E of Title 26'' and inserting ``parts I-IV of subchapter J of
chapter 51 of subtitle E of title 26, United States Code''.
Chapter Two, Part T, Subpart 3 is amended in the introductory
commentary by striking ``Subpart'' both places such term appears and
inserting ``subpart''.
Chapter Three, Part A is amended in the introductory commentary by
striking ``Part'' and inserting ``part''.
The Commentary to Sec. 3A1.1 captioned ``Background'' is amended
by striking ``Section 280003'' and inserting ``section 280003''.
The Commentary to Sec. 3A1.2 captioned ``Application Notes'' is
amended in Note 3 by striking ``the victim was a government officer or
employee, or a member of the immediate family thereof'' and inserting
``the victim was a government officer or employee, a former government
officer or employee, or a member of the immediate family thereof''.
Chapter Three, Part B is amended in the introductory commentary by
striking ``Part'' and inserting ``part''.
The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is
amended in Note 4(I) by striking ``Title 18'' and inserting ``title
18''.
Chapter Three, Part D is amended in the introductory commentary by
striking ``Part'' each place such term appears and inserting ``part''.
The Commentary to Sec. 3D1.1 captioned ``Application Notes'' is
amended in Note 2 by striking ``Part'' both places such term appears
and inserting ``part''.
The Commentary to Sec. 3D1.1 captioned ``Background'' is amended
by striking ``Chapter 3'' and inserting ``Chapter Three'', and by
striking ``Chapter 4'' and inserting ``Chapter Four''.
The Commentary to Sec. 3D1.2 captioned ``Background'' is amended
by striking ``Part'' both places such term appears and inserting
``part''.
The Commentary to Sec. 3D1.3 captioned ``Background'' is amended
by striking ``Part'' and inserting ``part''.
The Commentary to Sec. 3D1.4 captioned ``Background'' is amended
by striking ``Part'' and inserting ``part''.
The Commentary to Sec. 4A1.3 captioned ``Application Notes'' is
amended in Note 2(C)(v) by striking ``this Chapter'' and inserting
``this chapter''.
The Commentary to Sec. 4B1.1 captioned ``Background'' is amended
by striking ``Title 28'' and inserting ``title 28''.
The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is
amended in Note 1 by striking ``this Chapter'' and inserting ``this
chapter''.
The Commentary to Sec. 5E1.1 captioned ``Application Notes'' is
amended in Note 1 by striking ``Chapter'' both places such term appears
and inserting ``chapter''; by striking ``Title 18'' both places such
term appears and inserting ``title 18''; and by striking ``Subchapter
C'' and inserting ``subchapter C''.
The Commentary to Sec. 5E1.1 captioned ``Background'' is amended
by striking ``Title 18'' and inserting ``title 18''.
The Commentary to Sec. 5E1.3 captioned ``Background'' is amended
by striking ``Title 18'' and inserting ``title 18'', and by striking
``The Victims'' and inserting ``the Victims''.
[[Page 28280]]
The Commentary to Sec. 5E1.4 captioned ``Background'' is amended
by striking ``Titles'' and inserting ``titles''.
The Commentary to Sec. 5G1.3 captioned ``Background'' is amended
by striking ``132 S. Ct. 1463, 1468'' and inserting ``566 U.S. 231,
236'', and by striking ``132 S. Ct. at 1468'' and inserting ``566 U.S.
at 236''.
Chapter Five, Part H is amended in the introductory commentary by
striking ``Part'' each place such term appears and inserting ``part''.
Chapter Six, Part A is amended in the introductory commentary by
striking ``Part'' and inserting ``part''.
Chapter Seven, Part A, Subpart 3(b) (Choice between Theories) is
amended by striking ``Title 21'' and inserting ``title 21''.
The Commentary to Sec. 8A1.2 captioned ``Application Notes'' is
amended in Note 3(G) by striking '' `Prior criminal adjudication'
means'' and inserting '' `Criminal Adjudication' means''.
The Commentary to Sec. 8B1.1 captioned ``Background'' is amended
by striking ``Title 18'' and inserting ``title 18''.
The Commentary to Sec. 8B2.1 captioned ``Application Notes'' is
amended in Note 1, in the paragraph that begins '' `Governing
authority' means'', by striking ``means the (A) the Board'' and
inserting ``means (A) the Board''.
The Commentary to Sec. 8C2.5 captioned ``Application Notes'' is
amended in Note 1 by striking '' `prior criminal adjudication' '' and
inserting '' `criminal adjudication' ''.
The Commentary to Sec. 8C3.2 captioned ``Application Note'' is
amended in Note 1 by striking ``the period provided for payment shall
in no event exceed five years'' and inserting ``the period provided for
payment shall be the shortest time in which full payment can reasonably
be made''.
Section 8C3.3(a) is amended by striking ``its ability'' and
inserting ``the ability of the organization''.
The Commentary to Sec. 8E1.1 captioned ``Background'' is amended
by striking ``Title 18'' and inserting ``title 18''.
Appendix A (Statutory Index) is amended--
by striking the following line reference:
``18 U.S.C. Sec. 876 2A4.2, 2A6.1, 2B3.2, 2B3.3'';
by inserting before the line referenced to 18 U.S.C. 877 the
following new line references:
``18 U.S.C. Sec. 876(a) 2A4.2, 2B3.2
18 U.S.C. Sec. 876(b) B3.2
18 U.S.C. Sec. 876(c) 2A6.1
18 U.S.C. Sec. 876(d) 2B3.2, 2B3.3'';
in the line referenced to 25 U.S.C. 450d by striking ``Sec. 450d''
and inserting ``Sec. 5306'';
by striking the following line references:
``33 U.S.C. Sec. 1227(b) 2J1.1, 2J1.5
33 U.S.C. Sec. 1232(b)(2) 2A2.4'';
by inserting before the line referenced to 46 U.S.C. App. Sec.
1707a(f)(2) the following new line references:
``46 U.S.C. Sec. 70035(b) 2J1.1, 2J1.5
46 U.S.C. Sec. 70036(b) 2A2.4'';
by striking the following line references:
``50 U.S.C. App. Sec. 462 2M4.1
50 U.S.C. App. Sec. 527(e) 2X5.2
50 U.S.C. App. Sec. 2410 2M5.1'';
and by inserting before the line referenced to 52 U.S.C. 10307(c)
the following new line references:
``50 U.S.C. Sec. 3811 2M4.1
50 U.S.C. Sec. 3937(e) 2X5.2
50 U.S.C. Sec. 4610 2M5.1''.
Reason for Amendment: This amendment makes technical, stylistic,
and other non-substantive changes to the Guidelines Manual.
First, the amendment makes clerical changes to correct
typographical errors in the following guidelines and commentary: Sec.
1B1.1 (Application Instructions); Sec. 1B1.3 (Relevant Conduct
(Factors that Determine the Guideline Range)); Sec. 1B1.4 (Information
to be Used in Imposing Sentence (Selecting a Point Within the Guideline
Range or Departing from the Guidelines)); Sec. 1B1.10 (Reduction in
Term of Imprisonment as a Result of Amended Guideline Range (Policy
Statement)); Sec. 2D2.3 (Operating or Directing the Operation of a
Common Carrier Under the Influence of Alcohol or Drugs); Sec. 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);
Sec. 2H3.1 (Interception of Communications; Eavesdropping; Disclosure
of Certain Private or Protected Information); Sec. 2M1.1 (Treason);
Sec. 2T1.1 (Tax Evasion; Willful Failure to File Return, Supply
Information, or Pay Tax; Fraudulent or False Returns, Statements, or
Other Documents); the Introductory Commentary to Chapter Two, Part T,
Subpart 2 (Alcohol and Tobacco Taxes); the Introductory Commentary to
Chapter Two, Part T, Subpart 3 (Customs Taxes); the Introductory
Commentary to Chapter Three, Part A (Victim-Related Adjustments); Sec.
3A1.1 (Hate Crime Motivation or Vulnerable Victim); the Introductory
Commentary to Chapter Three, Part B (Role in the Offense); Sec. 3C1.1
(Obstructing or Impeding the Administration of Justice); the
Introductory Commentary to Chapter Three, Part D (Multiple Counts);
Sec. 3D1.1 (Procedure for Determining Offense Level on Multiple
Counts); Sec. 3D1.2 (Groups of Closely Related Counts); Sec. 3D1.3
(Offense Level Applicable to Each Group of Closely Related Counts);
Sec. 3D1.4 (Determining the Combined Offense Level); Sec. 4A1.3
(Departures Based on Inadequacy of Criminal History Category (Policy
Statement)); Sec. 4B1.1 (Career Offender); Sec. 5C1.1 (Imposition of
a Term of Imprisonment); Sec. 5E1.1 (Restitution); Sec. 5E1.3
(Special Assessments); Sec. 5E1.4 (Forfeiture); the Introductory
Commentary to Chapter Five, Part H (Specific Offender Characteristics);
the Introductory Commentary to Chapter Six, Part A (Sentencing
Procedures); Chapter Seven, Part A (Introduction to Chapter Seven);
Sec. 8B1.1 (Restitution--Organizations); Sec. 8B2.1 (Effective
Compliance and Ethics Program); Sec. 8C3.3 (Reduction of Fine Based on
Inability to Pay); and Sec. 8E1.1 (Special Assessments--
Organizations).
Second, the amendment makes clerical changes to the Commentary to
Sec. Sec. 1B1.11 (Use of Guidelines Manual in Effect on Date of
Sentencing (Policy Statement)) and 5G1.3 (Imposition of a Sentence on a
Defendant Subject to an Undischarged Term of Imprisonment or
Anticipated State Term of Imprisonment), to update citations of Supreme
Court cases. In addition, the amendment makes technical changes to (1)
the Commentary to Sec. 2K2.4 (Use of Firearm, Armor-Piercing
Ammunition, or Explosive During or in Relation to Certain Crimes), to
add a missing reference to 18 U.S.C. 844(o); (2) the Commentary to
Sec. 2M6.1 (Unlawful Activity Involving Nuclear Material, Weapons, or
Facilities, Biological Agents, Toxins, or Delivery Systems, Chemical
Weapons, or Other Weapons Of Mass Destruction; Attempt or Conspiracy),
to delete the definitions of two terms that are not currently used in
the guideline; (3) the Commentary to Sec. Sec. 2M5.3 (Providing
Material Support or Resources to Designated Foreign Terrorist
Organizations or Specially Designated Global Terrorists, or For a
Terrorist Purpose) and 2T1.1 (Tax Evasion; Willful Failure to File
Return, Supply Information, or Pay Tax; Fraudulent or False Returns,
Statements, or Other Documents), to correct references to the Code of
Federal Regulations; and (4) the Commentary to Sec. 3A1.2 (Official
Victim), to add missing content in Application Note 3.
Third, the amendment makes technical changes to the Commentary to
Sec. Sec. 2A4.2 (Demanding or Receiving Ransom Money), 2A6.1
(Threatening or
[[Page 28281]]
Harassing Communications; Hoaxes; False Liens), and 2B3.2 (Extortion by
Force or Threat of Injury or Serious Damage), and to Appendix A
(Statutory Index), to provide references to the specific applicable
provisions of 18 U.S.C. 876 (Mailing threatening communications).
Fourth, the amendment makes certain stylistic and technical changes
to the Commentary to Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking). It revises the Drug Conversion Tables at
Application Note 8(D) and the Typical Weight Per Unit Table at
Application Note 9 to reorganize the controlled substances contained
therein in alphabetical order to make the tables more user-friendly.
The amendment also makes minor changes to the controlled substance
references to promote consistency in the use of capitalization, commas,
parentheticals, and slash symbols throughout the Drug Conversion
Tables. In addition, the amendment makes clerical changes throughout
the Commentary to correct certain typographical errors. It also amends
the Background Commentary to add a specific reference to Amendment 808,
which replaced the term ``marihuana equivalency'' with the new term
``converted drug weight'' and changed the title of the ``Drug
Equivalency Tables'' to ``Drug Conversion Tables.''
Fifth, the amendment makes clerical changes to reflect the
editorial reclassification of certain sections of the United States
Code. Effective December 1, 2015, the Office of Law Revision Counsel
eliminated the Appendix to title 50 of the United States Code and
transferred the non-obsolete provisions to new chapters 49 to 57 of
title 50 and to other titles of the United States Code. To reflect the
new section numbers of the reclassified provisions, the amendment makes
changes to Sec. 2M4.1 (Failure to Register and Evasion of Military
Service), Sec. 2M5.1 (Evasion of Export Controls; Financial
Transactions with Countries Supporting International Terrorism), and
Appendix A. Similarly, effective September 1, 2016, the Office of Law
Revision Counsel also transferred certain provisions from chapter 14 of
title 25 of the United States Code to four new chapters in title 25 to
improve the organization of the title. To reflect these changes, the
amendment makes further changes to Appendix A.
Sixth, the amendment makes technical changes to the commentary of
several guidelines in Chapter Eight (Sentencing of Organizations). It
replaces the term ``prior criminal adjudication,'' as found and defined
in Application Note 3(G) of Sec. 8A1.2 (Application Instructions--
Organizations), with ``criminal adjudication'' to better reflect how
that term is used throughout Chapter Eight. The amendment also makes
conforming changes to the Commentary to Sec. 8C2.5 (Culpability Score)
to account for the new term. In addition, the amendment revises
Application Note 1 of Sec. 8C3.2 (Payment of the Fine--Organizations)
to reflect the current language of subsection (d) of 18 U.S.C. 3572
(Imposition of a sentence of fine and related matters), providing that
if the court permits other than immediate payment of a fine or other
monetary payment, the period provided for payment shall be the shortest
time in which full payment can reasonably be made.
Finally, the amendment makes clerical changes to provide updated
references to certain sections of the United States Code that were
redesignated by legislation. The Frank LoBiondo Coast Guard
Authorization Act of 2018, Pub. L. 115-282 (2018) (hereinafter ``the
Act''), among other things, established a new chapter 700 (Ports and
Waterway Safety) in subtitle VII (Security and Drug Enforcement) of
title 46 (Shipping) of the United States Code. Section 401 of the Act
repealed the Ports and Waterways Safety Act of 1972, previously
codified in 33 U.S.C. 1221-1232b, and restated its provisions with some
revisions in the new chapter 700 of title 46, specifically at 46 U.S.C.
70001-70036. Appendix A includes references to Chapter Two guidelines
for both former 33 U.S.C. 1227(b) and 1232(b). The amendment revises
Appendix A to delete the references to 33 U.S.C. 1227(b) and 1232(b)
and replace them with updated references to 46 U.S.C. 70035(b) and
70036(b). The Act did not make substantive revisions to either of these
provisions.
(2) Request for Comment on Parts A and B Of Amendment 8, Relating to
``STATUS POINTS'' and Certain ``Zero-Point''Offenders
On April 27, 2023, the Commission submitted to the Congress
amendments to the sentencing guidelines, policy statements, official
commentary, and Statutory Index, which become effective on November 1,
2023, unless Congress acts to the contrary. Such amendments and the
reason for each amendment are included in this notice.
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.'' Pursuant to 28
U.S.C. 994(u), ``[i]f 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 lists in subsection
(d) of Sec. 1B1.10 (Reduction in Term of Imprisonment as a Result of
Amended Guideline Range (Policy Statement)) the specific guideline
amendments that the court may apply retroactively under 18 U.S.C.
3582(c)(2).
Amendment 8, pertaining to criminal history, has the effect of
lowering guideline ranges. The Commission intends to consider whether,
pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), Parts A and B of
this amendment, relating to the impact of ``status points'' at Sec.
4A1.1 (Criminal History Category) and offenders with zero criminal
history points at new Sec. 4C1.1 (Adjustment for Certain Zero-Point
Offenders), should be included in Sec. 1B1.10(d) as an amendment that
may be applied retroactively to previously sentenced defendants. In
considering whether to do so, the Commission will consider, among other
things, a retroactivity impact analysis and public comment.
Accordingly, the Commission seeks public comment on whether it should
make Parts A and B of Amendment 8 available for retroactive
application. To help inform public comment, the retroactivity impact
analysis will be made available to the public as soon as practicable.
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(d). To the extent practicable,
public comment should address each of these factors.
The Commission seeks comment on whether it should list Parts A and
B of Amendment 8, addressing the impact of ``status points'' at Sec.
4A1.1 and offenders
[[Page 28282]]
with zero criminal history points at new Sec. 4C1.1, in Sec.
1B1.10(d) as changes that may be applied retroactively to previously
sentenced defendants. For each of these parts, the Commission requests
comment on whether that part should be listed in Sec. 1B1.10(d) as an
amendment that may be applied retroactively.
If the Commission does list one or both such parts of the amendment
in Sec. 1B1.10(d) 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?
[FR Doc. 2023-09332 Filed 5-2-23; 8:45 am]
BILLING CODE 2210-40-P