[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Notices]
[Pages 89142-89217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28317]



[[Page 89141]]

Vol. 88

Tuesday,

No. 246

December 26, 2023

Part III





 United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

  Federal Register / Vol. 88 , No. 246 / Tuesday, December 26, 2023 / 
Notices  

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice and request for public comment and hearing.

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SUMMARY: The United States Sentencing Commission is considering 
promulgating amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice also sets forth several issues 
for comment, some of which are set forth together with the proposed 
amendments, and one of which (regarding retroactive application of 
proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION 
section of this notice.

DATES: 
    Written Public Comment. Written public comment regarding the 
proposed amendments and issues for comment set forth in this notice, 
including public comment regarding retroactive application of any of 
the proposed amendments, should be received by the Commission not later 
than February 22, 2024. Any public comment received after the close of 
the comment period may not be considered.
    Public Hearing. The Commission may hold a public hearing regarding 
the proposed amendments and issues for comment set forth in this 
notice. Further information regarding any public hearing that may be 
scheduled, including requirements for testifying and providing written 
testimony, as well as the date, time, location, and scope of the 
hearing, will be provided by the Commission on its website at 
www.ussc.gov.

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--Proposed Amendments.

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).
    Publication of a proposed amendment requires the affirmative vote 
of at least three voting members of the Commission and is deemed to be 
a request for public comment on the proposed amendment. See USSC Rules 
of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote 
of at least four voting members is required to promulgate an amendment 
and submit it to Congress. See id. 2.2; 28 U.S.C. 994(p).
    The proposed amendments in this notice are presented in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline, policy statement, or commentary. Bracketed 
text within a proposed amendment indicates a heightened interest on the 
Commission's part in comment and suggestions regarding alternative 
policy choices; for example, a proposed enhancement of [2][4][6] levels 
indicates that the Commission is considering, and invites comment on, 
alternative policy choices regarding the appropriate level of 
enhancement. Similarly, bracketed text within a specific offense 
characteristic or application note means that the Commission 
specifically invites comment on whether the proposed provision is 
appropriate. Second, the Commission has highlighted certain issues for 
comment and invites suggestions on how the Commission should respond to 
those issues.
    In summary, the proposed amendments and issues for comment set 
forth in this notice are as follows:
    (1) A proposed amendment to Sec.  2B1.1 (Theft, Property 
Destruction, and Fraud) that would create Notes to the loss table in 
Sec.  2B1.1(b)(1) and move some of the general rules relating to loss 
from the commentary to the guideline itself as part of the Notes, as 
well as make corresponding changes to the Commentary of certain 
guidelines that refer to the loss rules in Sec.  2B1.1, and a related 
issue for comment.
    (2) A two-part proposed amendment relating to the provisions of 
Sec.  4A1.2 (Definitions and Instructions for Computing Criminal 
History) that cover criminal history calculations for offenses 
committed prior to age eighteen and on Sec.  5H1.1 (Age (Policy 
Statement)), including (A) three options for amending Sec.  4A1.2 to 
change how sentences for offenses committed prior to age eighteen are 
considered in the calculation of a defendant's criminal history score, 
and related issues for comment; and (B) an amendment to Sec.  5H1.1 to 
address unique sentencing considerations relating to youthful 
individuals, and related issues for comment.
    (3) A proposed amendment to the Guidelines Manual that includes 
three options to address the use of acquitted conduct for purposes of 
determining a sentence, and related issues for comment.
    (4) A two-part proposed amendment addressing certain circuit 
conflicts involving Sec.  2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition) and Sec.  2K2.4 (Use of Firearm, 
Armor-Piercing Ammunition, or Explosive During or in Relation to 
Certain Crimes), including (A) two options for amending Sec.  
2K2.1(b)(4)(B)(i) to address a circuit conflict concerning whether a 
serial number must be illegible in order to apply the 4-level increase 
for a firearm that ``had an altered or obliterated serial number,'' and 
a related issue for comment; and (B) amendments to the Commentary to 
Sec.  2K2.4 to address a circuit conflict concerning whether subsection 
(c) of Sec.  3D1.2 (Groups of Closely Related Counts) permits grouping 
of a firearms count under 18 U.S.C. 922(g) with a drug trafficking 
count, where the defendant also has a separate count under 18 U.S.C. 
924(c) based on the drug trafficking count, and a related issue for 
comment.
    (5) A multi-part proposed amendment in response to recently enacted 
legislation and miscellaneous guideline issues, including (A) 
amendments to Appendix A (Statutory Index) and the Commentary to Sec.  
2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage 
Resources or Paleontological Resources; Unlawful Sale, Purchase, 
Exchange, Transportation, or Receipt of Cultural Heritage Resources or 
Paleontological Resources) in response to the Safeguard Tribal Objects 
of Patrimony (``STOP'') Act of 2021, Public Law 117-258 (2022), and a 
related issue for comment; (B) amendments to Appendix A and Sec.  2M5.1 
(Evasion of

[[Page 89143]]

Export Controls; Financial Transactions with Countries Supporting 
International Terrorism) in response to the Export Control Reform Act 
of 2018, enacted as part of the John McCain National Defense 
Authorization Act for Fiscal Year 2019, Public Law 115-232 (2018), and 
to concerns raised by the Department of Justice and the Disruptive 
Technology Strike Force (an interagency collaboration between the 
Department of Justice's National Security Division and the Department 
of Commerce's Bureau of Industry and Security), and related issues for 
comment; (C) an amendment to subsection (b)(2)(B) of Sec.  2S1.3 
(Structuring Transactions to Evade Reporting Requirements; Failure to 
Report Cash or Monetary Transactions; Failure to File Currency and 
Monetary Instrument Report; Knowingly Filing False Reports; Bulk Cash 
Smuggling; Establishing or Maintaining Prohibited Accounts) to reflect 
the enhanced penalty applicable to offenses under 31 U.S.C. 5322 and 
5336; (D) amendments to Appendix A and the Commentary to Sec.  2R1.1 
(Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among 
Competitors) to replace references to 15 U.S.C. 3(b) with references to 
15 U.S.C. 3(a); (E) two options for amending Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to address a miscellaneous issue regarding the application 
of the base offense levels at subsections (a)(1)-(a)(4); and (F) two 
options for amending Sec.  4C1.1 (Adjustment for Certain Zero-Point 
Offenders) to address concerns raised by the Department of Justice 
relating to the scope of the definition of ``sex offense'' in 
subsection (b)(2).
    (6) A two-part proposed amendment to make technical and other non-
substantive changes to the Guidelines Manual, including (A) technical 
and conforming changes relating to Sec.  4C1.1 (Adjustment for Certain 
Zero-Point Offenders); and (B) technical and clerical changes to 
several guidelines and their corresponding commentaries to add missing 
headings to application notes; provide stylistic consistency in how 
subdivisions are designated; provide consistency in the use of 
capitalization; correct certain references and typographical errors; 
and update an example in a Commentary that references 18 U.S.C. 924(c), 
which was amended by the First Step Act of 2018, Public Law 115-391 
(Dec. 21, 2018).
    (7) A two-part proposed amendment to the Guidelines Manual, 
including (A) request for public comment on whether any changes should 
be made to the Guidelines Manual relating to the three-step process set 
forth in Sec.  1B1.1 (Application Instructions) and the use of 
departures and policy statements relating to specific personal 
characteristics; and (B) amendments that would restructure the 
Guidelines Manual to simplify both (1) the current three-step process 
utilized in determining a sentence that is ``sufficient, but not 
greater than necessary,'' and (2) existing guidance in the Guidelines 
Manual regarding a court's consideration of the individual 
circumstances of the defendant as well as certain offense 
characteristics.
    In addition, the Commission requests public comment regarding 
whether, pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any 
proposed amendment published in this notice 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 Commission lists in Sec.  1B1.10(d) the specific guideline 
amendments that the court may apply retroactively under 18 U.S.C. 
3582(c)(2). The Background Commentary to Sec.  1B1.10 lists the purpose 
of the amendment, the magnitude of the change in the guideline range 
made by the amendment, and the difficulty of applying the amendment 
retroactively to determine an amended guideline range under Sec.  
1B1.10(b) as among the factors the Commission considers in selecting 
the amendments included in Sec.  1B1.10(d). To the extent practicable, 
public comment should address each of these factors.
    The text of the proposed amendments and related issues for comment 
are set forth below. Additional information pertaining to the proposed 
amendments and issues for comment described in this notice may be 
accessed through the Commission's website at www.ussc.gov. In addition, 
as required by 5 U.S.C. 553(b)(4), plain-language summaries of the 
proposed amendments are available at https://www.ussc.gov/guidelines/amendments/proposed-2024-amendments-federal-sentencing-guidelines.
    Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice 
and Procedure 2.2, 4.3, 4.4.

Carlton W. Reeves,
Chair.

Proposed Amendments to the Sentencing Guidelines, Policy Statements, 
and Official Commentary

1. Rule for Calculating Loss

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's continued study of the Guidelines Manual to address 
case law concerning the validity and enforceability of guideline 
commentary. See U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 88 
FR 60536 (Sept. 1, 2023).
    In Stinson v. United States, 508 U.S. 36, 38 (1993), the Supreme 
Court held that commentary ``that interprets or explains a guideline is 
authoritative unless it violates the Constitution or a federal statute, 
or is inconsistent with, or a plainly erroneous reading of, that 
guideline.'' In recent years, however, the deference afforded to 
various guideline commentary provisions has been debated, particularly 
since Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019), which limited 
deference to agency interpretation of regulations to situations in 
which the regulation is ``genuinely ambiguous.'' Applying Kisor, the 
Third Circuit recently held that Application Note 3(A) of the 
Commentary to Sec.  2B1.1 (Theft, Property Destruction, and Fraud) is 
not entitled to deference. United States v. Banks, 55 F.4th 246 (3d 
Cir. 2022).
    Section 2B1.1 includes a loss table that increases the offense 
level based on the amount of loss resulting from an offense. USSG Sec.  
2B1.1(b)(1). Application Note 3(A) of the Commentary to Sec.  2B1.1 
provides a general rule for courts to use to calculate loss for 
purposes of the loss table. USSG Sec.  2B1.1, comment. (n.3(A)). Under 
the rule, ``loss is the greater of actual loss or intended loss.'' Id. 
The commentary then defines the terms ``actual loss,'' ``intended 
loss,'' ``pecuniary harm,'' and ``reasonably foreseeable pecuniary 
harm.'' USSG Sec.  2B1.1, comment. (n.3(A)(i)-(iv)). The commentary 
also provides that ``[t]he court shall use the gain that resulted from 
the offense as an alternative measure of loss only if there is a loss 
but it reasonably cannot be determined.'' USSG Sec.  2B1.1, comment. 
(n.3(B)).
    In Banks, the Third Circuit held that ``the term `loss' is 
unambiguous in the context of Sec.  2B1.1''--meaning ``actual loss''--
and that ``[b]ecause the commentary expands the definition of `loss' by 
explaining that generally `loss

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is the greater of actual loss or intended loss,' we accord the 
commentary no weight.'' Banks, 55 F.4th at 253, 258. To date, the Third 
Circuit is the only appellate court to reach this conclusion. However, 
the loss calculations for defendants in this circuit are now computed 
differently than in circuits that continue to apply Application Note 
3(A).
    The Commission estimates that approximately one-fifth of 
individuals sentenced under Sec.  2B1.1 in fiscal year 2022 were 
sentenced using intended loss. This estimate is based on the 
Commission's review of a 30 percent representative sample of the 3,811 
individuals sentenced under Sec.  2B1.1 in fiscal year 2022 with a 
known, non-zero loss amount. Intended loss was used for sentencing in 
19.8 percent of cases in the sample. Using these findings to 
extrapolate to all Sec.  2B1.1 cases with a loss amount, the Commission 
estimates that approximately 750 individuals were sentenced using 
intended loss in fiscal year 2022. Of those 750 individuals, 
approximately 50 were sentenced in the Third Circuit prior to the Banks 
decision.
    This proposed amendment would address the decision from the Third 
Circuit regarding the validity and enforceability of Application Note 
3(A) of the Commentary to Sec.  2B1.1 to ensure consistent loss 
calculation across circuits.
    The proposed amendment would create Notes to the loss table in 
Sec.  2B1.1(b)(1) and move the general rule establishing loss as the 
greater of actual loss or intended loss from the commentary to the 
guideline itself as part of the Notes. The proposed amendment would 
also move the rule providing for the use of gain as an alternative 
measure of loss, as well as the definitions of ``actual loss,'' 
``intended loss,'' ``pecuniary harm,'' and ``reasonably foreseeable 
pecuniary harm'' from the commentary to the Notes. In addition, the 
proposed amendment would make corresponding changes to the Commentary 
to Sec. Sec.  2B2.3 (Trespass), 2C1.1 (Offering, Giving, Soliciting, or 
Receiving a Bribe; Extortion Under Color of Official Right; Fraud 
Involving the Deprivation of the Intangible Right to Honest Services of 
Public Officials; Conspiracy to Defraud by Interference with 
Governmental Functions), and 8A1.2 (Application Instructions--
Organizations), which calculate loss by reference to the Commentary to 
Sec.  2B1.1.
    An issue for comment is also provided.
    Proposed Amendment: Section 2B1.1(b)(1) is amended by inserting the 
following at the end:
    ``*Notes to Table:
    (A) Loss.--Loss is the greater of actual loss or intended loss.
    (B) Gain.--The court shall use the gain that resulted from the 
offense as an alternative measure of loss only if there is a loss but 
it reasonably cannot be determined.
    (C) For purposes of this guideline--
    (i) `Actual loss' means the reasonably foreseeable pecuniary harm 
that resulted from the offense.
    (ii) `Intended loss' (I) means the pecuniary harm that the 
defendant purposely sought to inflict; and (II) includes intended 
pecuniary harm that would have been impossible or unlikely to occur 
(e.g., as in a government sting operation, or an insurance fraud in 
which the claim exceeded the insured value).
    (iii) `Pecuniary harm' means harm that is monetary or that 
otherwise is readily measurable in money. Accordingly, pecuniary harm 
does not include emotional distress, harm to reputation, or other non-
economic harm.
    (iv) `Reasonably foreseeable pecuniary harm' means pecuniary harm 
that the defendant knew or, under the circumstances, reasonably should 
have known, was a potential result of the offense.''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3--by striking subparagraphs (A) and (B) as follows:
    ``(A) General Rule.--Subject to the exclusions in subdivision (D), 
loss is the greater of actual loss or intended loss.
    (i) Actual Loss.--`Actual loss' means the reasonably foreseeable 
pecuniary harm that resulted from the offense.
    (ii) Intended Loss.--`Intended loss' (I) means the pecuniary harm 
that the defendant purposely sought to inflict; and (II) includes 
intended pecuniary harm that would have been impossible or unlikely to 
occur (e.g., as in a government sting operation, or an insurance fraud 
in which the claim exceeded the insured value).
    (iii) Pecuniary Harm.--`Pecuniary harm' means harm that is monetary 
or that otherwise is readily measurable in money. Accordingly, 
pecuniary harm does not include emotional distress, harm to reputation, 
or other non-economic harm.
    (iv) Reasonably Foreseeable Pecuniary Harm.--For purposes of this 
guideline, `reasonably foreseeable pecuniary harm' means pecuniary harm 
that the defendant knew or, under the circumstances, reasonably should 
have known, was a potential result of the offense.
    (v) Rules of Construction in Certain Cases.--In the cases described 
in subdivisions (I) through (III), reasonably foreseeable pecuniary 
harm shall be considered to include the pecuniary harm specified for 
those cases as follows:
    (I) Product Substitution Cases.--In the case of a product 
substitution offense, the reasonably foreseeable pecuniary harm 
includes the reasonably foreseeable costs of making substitute 
transactions and handling or disposing of the product delivered, or of 
retrofitting the product so that it can be used for its intended 
purpose, and the reasonably foreseeable costs of rectifying the actual 
or potential disruption to the victim's business operations caused by 
the product substitution.
    (II) Procurement Fraud Cases.--In the case of a procurement fraud, 
such as a fraud affecting a defense contract award, reasonably 
foreseeable pecuniary harm includes the reasonably foreseeable 
administrative costs to the government and other participants of 
repeating or correcting the procurement action affected, plus any 
increased costs to procure the product or service involved that was 
reasonably foreseeable.
    (III) Offenses Under 18 U.S.C. 1030.--In the case of an offense 
under 18 U.S.C. 1030, actual loss includes the following pecuniary 
harm, regardless of whether such pecuniary harm was reasonably 
foreseeable: any reasonable cost to any victim, including the cost of 
responding to an offense, conducting a damage assessment, and restoring 
the data, program, system, or information to its condition prior to the 
offense, and any revenue lost, cost incurred, or other damages incurred 
because of interruption of service.
    (B) Gain.--The court shall use the gain that resulted from the 
offense as an alternative measure of loss only if there is a loss but 
it reasonably cannot be determined.'';
    inserting the following new subparagraph (A):
    ``(A) Rules of Construction in Certain Cases.--In the cases 
described in clauses (i) through (iii), reasonably foreseeable 
pecuniary harm shall be considered to include the pecuniary harm 
specified for those cases as follows:
    (i) Product Substitution Cases.--In the case of a product 
substitution offense, the reasonably foreseeable pecuniary harm 
includes the reasonably foreseeable costs of making substitute 
transactions and handling or disposing of the product delivered, or of

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retrofitting the product so that it can be used for its intended 
purpose, and the reasonably foreseeable costs of rectifying the actual 
or potential disruption to the victim's business operations caused by 
the product substitution.
    (ii) Procurement Fraud Cases.--In the case of a procurement fraud, 
such as a fraud affecting a defense contract award, reasonably 
foreseeable pecuniary harm includes the reasonably foreseeable 
administrative costs to the government and other participants of 
repeating or correcting the procurement action affected, plus any 
increased costs to procure the product or service involved that was 
reasonably foreseeable.
    (iii) Offenses Under 18 U.S.C. 1030.--In the case of an offense 
under 18 U.S.C. 1030, actual loss includes the following pecuniary 
harm, regardless of whether such pecuniary harm was reasonably 
foreseeable: any reasonable cost to any victim, including the cost of 
responding to an offense, conducting a damage assessment, and restoring 
the data, program, system, or information to its condition prior to the 
offense, and any revenue lost, cost incurred, or other damages incurred 
because of interruption of service.'';

and by redesignating subparagraphs (C), (D), (E), and (F) as 
subparagraphs (B), (C), (D), and (E), respectively.

    The Commentary to Sec.  2B2.3 captioned ``Application Notes'' is 
amended in Note 2 by striking ``the Commentary to Sec.  2B1.1 (Theft, 
Property Destruction, and Fraud)'' and inserting ``Sec.  2B1.1 (Theft, 
Property Destruction, and Fraud) and the Commentary to Sec.  2B1.1''.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended in Note 3 by striking ``Application Note 3 of the Commentary to 
Sec.  2B1.1 (Theft, Property Destruction, and Fraud)'' and inserting 
``Sec.  2B1.1 (Theft, Property Destruction, and Fraud) and Application 
Note 3 of the Commentary to Sec.  2B1.1''.
    The Commentary to Sec.  8A1.2 captioned ``Application Notes'' is 
amended in Note 3 by striking ``the Commentary to Sec.  2B1.1 (Theft, 
Property Destruction, and Fraud)'' and inserting ``Sec.  2B1.1 (Theft, 
Property Destruction, and Fraud) and the Commentary to Sec.  2B1.1''.
    Issue for Comment:
    1. As part of the Commission's priority to address case law 
concerning the validity and enforceability of guideline commentary, the 
proposed amendment would address the Third Circuit's decision regarding 
the deference to be given to Application Note 3(A) of the Commentary to 
Sec.  2B1.1 (Theft, Property Destruction, and Fraud). See United States 
v. Banks, 55 F.4th 246 (3d Cir. 2022). The Commission's current 
priorities also include the ``[e]xamination of the Guidelines Manual, 
including exploration of ways to simplify the guidelines and possible 
consideration of amendments that might be appropriate.'' See U.S. 
Sent'g Comm'n, ``Notice of Final Priorities,'' 88 FR 60536 (Sept. 1, 
2023). As part of that simplification priority, the Commission is 
considering conducting a comprehensive examination of Sec.  2B1.1 
during an upcoming amendment cycle.
    The Commission seeks comment on whether it should adopt this 
proposed amendment addressing Application Note 3(A) of the Commentary 
to Sec.  2B1.1 during this amendment cycle, or whether it should defer 
making changes to Sec.  2B1.1 and its commentary until a future 
amendment cycle that may include a comprehensive examination of Sec.  
2B1.1.

2. Youthful Individuals

    Synopsis of Proposed Amendment: In September 2023, the Commission 
identified as one of its policy priorities for the amendment cycle 
ending May 1, 2024, an examination of the treatment of youthful 
offenders and offenses involving youths under the Guidelines Manual, 
including possible consideration of amendments that might be 
appropriate. U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 88 FR 
60536 (Sept. 1, 2023). As part of this priority, the Commission is 
examining two provisions related to youthful individuals: (1) 
subsection (d) of Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History), which covers criminal history calculations 
for offenses committed prior to age eighteen; and (2) Sec.  5H1.1 (Age 
(Policy Statement)), a departure provision related to age, including 
youth. Section 4A1.2(d) is unchanged from the original guideline 
enacted in 1987. Section 5H1.1 was last amended in 2010.
    This proposed amendment contains two parts (Part A and Part B). The 
Commission is considering whether to promulgate either or both parts, 
as they are not mutually exclusive. Part A addresses the computation of 
criminal history points for offenses committed prior to age eighteen. 
Part B addresses the sentencing of youthful individuals.

Computing Criminal History for Offenses Committed Prior to Age Eighteen

    Under Chapter Four, Part A (Criminal History), certain sentences 
for offenses committed prior to age eighteen are considered in the 
calculation of a defendant's criminal history score. The guidelines 
distinguish between an ``adult sentence'' in which the defendant 
committed the offense before age eighteen and was convicted as an 
adult, and a ``juvenile sentence'' resulting from a juvenile 
adjudication. See USSG Sec.  4A1.2(d).
    The Commentary to Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History) provides that, to avoid disparities from 
jurisdiction to jurisdiction in the age at which a defendant is 
considered a ``juvenile,'' the rules set forth in Sec.  4A1.2(d) apply 
to all offenses committed prior to age eighteen. See USSG Sec.  4A1.2, 
comment. (n.7). The Commentary also states that ``[a]ttempting to count 
every juvenile adjudication would have the potential for creating large 
disparities due to the differential availability of records,'' and thus 
only certain offenses committed prior to age eighteen are counted. Id.
    Courts assign three criminal history points if a defendant was 
convicted as an adult for an offense committed before age eighteen and 
received a sentence of imprisonment exceeding one year and one month, 
if the sentence was imposed, or the defendant was incarcerated, within 
fifteen years of the commencement of the instant offense. See USSG 
Sec.  4A1.2(d)(1), (e). Courts assign two criminal history points for 
``each adult or juvenile sentence to confinement of at least sixty days 
if the defendant was released from such confinement within five years 
of his commencement of the instant offense.'' USSG Sec.  
4A1.2(d)(2)(A). One criminal history point is added for ``each adult or 
juvenile sentence imposed within five years of the defendant's 
commencement of the instant offense not covered in (A).'' USSG Sec.  
4A1.2(d)(2)(B).
    Juvenile offenses are also addressed in two other places in Sec.  
4A1.2. First, Sec.  4A1.2(c)(2) provides a list of certain offenses 
that are ``never counted'' for purposes of the criminal history score, 
including ``juvenile status offenses and truancy.'' Second, Sec.  
4A1.2(f) provides that diversionary dispositions resulting from a 
finding or admission of guilt, or a plea of nolo contendere, are 
counted even if a conviction is not formally entered, but ``diversion 
from juvenile court is not counted.''
    With this proposed amendment, the Commission seeks to strike the 
right balance between various considerations related to the sentencing 
of youthful individuals, including difficulties in obtaining supporting 
documentation for juvenile adjudications and in assessing 
``confinement,'' recent brain development research, demographic

[[Page 89146]]

disparities, higher rearrest rates for younger individuals, and 
protection of the public.

Juvenile Proceedings in General

    Juvenile adjudications involve some procedural safeguards akin to 
adult criminal proceedings (e.g., right to counsel, privilege against 
self-incrimination), but not all criminal constitutional protections 
apply. For example, in most states, juveniles are not entitled to a 
jury trial, although some states provide juveniles with a jury trial 
upon request. Additionally, ``[i]n 2019, there were 24 states with 
statutes allowing delinquency adjudication hearings to be generally 
open to the public,'' while ``[i]n the remaining states and the 
District of Columbia the public is restricted from attending 
delinquency adjudication hearings,'' with possible limited exceptions. 
Charles Puzzanchera et al., Nat'l Ctr. for Juv. Just., Youth and the 
Juvenile Justice System: 2022 National Report 93 (2022). Dispositions 
of confinement and residential placement may also differ in manner and 
purpose from adult sentences of incarceration. Residential placement 
facilities vary in their degree of security and security features, with 
some having a ``secure prison-like environment'' and others ``a more 
open (even home-like) setting.'' Id. at 91. Almost all states and the 
District of Columbia have statutes or case law providing that a 
juvenile adjudication shall not be deemed a criminal conviction or 
impose any civil disabilities that ordinarily result from an adult 
conviction, though many states permit the use of juvenile adjudications 
to enhance a subsequent sentence.
    With respect to records of juvenile proceedings, practices vary by 
state. Many states allow for sealing or expungement, though few states 
seal or expunge such records automatically, instead requiring a motion. 
See, e.g., Riya Saha Shah, et al., Juv. L. Ctr., A National Review of 
State Laws on Confidentiality, Sealing and Expungement 36-39 (2014). 
States often include various eligibility requirements for sealing or 
expungement, such as that (1) a certain period of time has elapsed 
since the case concluded or the juvenile completed any sentence of 
supervision, (2) the person has not been convicted of certain types of 
offenses, such as drug or sex offenses or offenses against persons, 
and/or (3) the individual has reached a certain age. Id. at 32-35.
    The determination of whether a person under the age of eighteen may 
be tried as an adult varies by jurisdiction and often may be based on 
certain offense types or a finding that the individual would not 
benefit from the juvenile court. In 2019, 47 states allowed juvenile 
court judges to make the transfer decision, 27 states had statutory 
provisions that mandated transfer to criminal court for certain cases, 
and 14 states gave prosecutors discretion on where to file charges. 
Puzzanchera et al., supra, at 95-97. States vary with respect to the 
minimum age at which an individual can be transferred to criminal court 
to be tried as an adult; where specified, the minimum age ranges from 
ten to sixteen. Id. at 97-99. For juveniles who had been tried as 
adults, 35 states had ``once an adult, always an adult'' provisions 
requiring that they be prosecuted in criminal court for any subsequent 
offense. Id. at 95-96.

Sentencing of Youthful Individuals

    Chapter Five, Part H (Specific Offender Characteristics) sets forth 
policy statements addressing the relevance of certain specific offender 
characteristics in sentencing. Specifically, Sec.  5H1.1 (Age (Policy 
Statement)) provides, in relevant part, that ``[a]ge (including youth) 
may be relevant in determining whether a departure is warranted, if 
considerations based on age, individually or in combination with other 
offender characteristics, are present to an unusual degree and 
distinguish the case from the typical cases covered by the 
guidelines.''

Studies on Age and Brain Development

    Research has shown that brain development continues until the mid-
20s on average, potentially contributing to impulsive actions and 
reward-seeking behavior, although a more precise age would have to be 
determined on an individualized basis. See, e.g., U.S. Sent'g Comm'n, 
Youthful Offenders in the Federal System 6-7 (2017); Daniel Romer et 
al., Beyond Stereotypes of Adolescent Risk Taking: Placing the 
Adolescent Brain in Developmental Context, 27 Developmental Cognitive 
Neuroscience 19 (2017); Laurence Steinberg & Grace Icenogle, Using 
Developmental Science to Distinguish Adolescents and Adults Under the 
Law, 1 Ann. Rev. Developmental Psych. 21 (2019).

Studies on Age and Rearrest Rates

    Research has shown a correlation between age and rearrest rates, 
with younger individuals being rearrested at higher rates, and sooner 
after release, than older individuals. See Ryan Cotter, Courtney 
Semisch & David Rutter, U.S. Sent'g Comm'n, Recidivism of Federal 
Offenders Released in 2010 (2021); see also Kim Steven Hunt & Billy 
Easley II, U.S. Sent'g Comm'n, The Effects of Aging on Recidivism Among 
Federal Offenders (2017).

Part A of the Proposed Amendment

    Part A of the proposed amendment sets forth three options to change 
how sentences for offenses committed prior to age eighteen are 
considered in the calculation of a defendant's criminal history score.
    Option 1 would amend Sec.  4A1.2(d)(2)(A) to exclude juvenile 
sentences from receiving two criminal history points, limiting this 
provision to adult sentences of imprisonment of at least 60 days. As a 
result, juvenile sentences, including those that involved confinement, 
would receive at most one criminal history point under Sec.  
4A1.2(d)(2)(B). In addition, Option 1 would amend Sec.  4A1.2(k)(2)(B) 
to explain how the applicable time period for revocations would work in 
light of the proposed changes. Finally, Option 1 would make conforming 
changes to the Commentary to Sec. Sec.  4A1.2 and 4A1.1.
    Option 2 would amend Sec.  4A1.2(d) to exclude all juvenile 
sentences from being considered in the calculation of the criminal 
history score. It also includes bracketed language providing that such 
sentences may be considered for purposes of an upward departure under 
Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)). In addition, Option 2 would amend Sec.  
4A1.2(k)(2)(B) to explain how the applicable time period for 
revocations would work in light of the proposed changes. It also would 
amend Sec.  4A1.2(c)(2) to delete the reference to ``juvenile status 
offenses and truancy'' and amend Sec.  4A1.2(f) to delete the reference 
to ``diversion from juvenile court.'' Finally, Option 2 would make 
conforming changes to the Commentary to Sec. Sec.  4A1.2 and 4A1.1.
    Option 3 would amend Sec.  4A1.2(d) to exclude all sentences 
resulting from offenses committed prior to age eighteen from being 
considered in the calculation of the criminal history score. It also 
includes bracketed language providing that such sentences may be 
considered for purposes of an upward departure under Sec.  4A1.3. In 
addition, Option 3 would amend Sec.  4A1.2(e) and (k) to delete all 
references to sentences resulting from offenses committed prior to age 
eighteen. It also would amend Sec.  4A1.2(c)(2) to delete the reference 
to ``juvenile status offenses and truancy'' and amend Sec.  4A1.2(f) to 
delete the reference to ``diversion from juvenile court.'' 
Additionally, Option 3 would

[[Page 89147]]

make conforming changes to the Commentary to Sec. Sec.  4A1.2 and 
4A1.1.
    Finally, Option 3 would make changes to the Commentary to 
Sec. Sec.  2K1.3 (Unlawful Receipt, Possession, or Transportation of 
Explosive Materials; Prohibited Transactions Involving Explosive 
Materials), 2K2.1 (Unlawful Receipt, Possession, or Transportation of 
Firearms or Ammunition; Prohibited Transactions Involving Firearms or 
Ammunition), and 2L1.2 (Unlawfully Entering or Remaining in the United 
States), and to subsection (e)(4) of Sec.  4B1.2 (Definitions of Terms 
Used in Section 4B1.1), to delete references to convictions for 
offenses committed prior to age eighteen being used to increase offense 
levels.
    Issues for comment are provided.

Part B of the Proposed Amendment

    Part B of the proposed amendment would amend the first sentence in 
Sec.  5H1.1 to delete ``(including youth)'' and ``if considerations 
based on age, individually or in combination with other offender 
characteristics, are present to an unusual degree and distinguish the 
case from the typical cases covered by the guidelines.'' Thus, the 
first sentence in Sec.  5H1.1 would provide solely that ``[a]ge may be 
relevant in determining whether a departure is warranted.'' It would 
also add language specifically providing for a downward departure for 
cases in which the defendant was youthful at the time of the offense 
and set forth considerations for the court in determining whether a 
departure based on youth is warranted.
    Issues for comment are provided.

(A) Computing Criminal History for Offenses Committed Prior to Age 
Eighteen

    Proposed Amendment:
    [Option 1 (Deleting the references to juvenile sentences that 
require a determination of ``confinement''):
    Section 4A1.2(d)(2)(A) is amended by striking: ``add 2 points under 
Sec.  4A1.1(b) for each adult or juvenile sentence to confinement of at 
least sixty days if the defendant was released from such confinement 
within five years of his commencement of the instant offense'' and 
inserting ``add 2 points under Sec.  4A1.1(b) for each adult sentence 
of imprisonment of at least sixty days that resulted in the defendant 
being incarcerated within five years of his commencement of the instant 
offense''.
    Section 4A1.2(k)(2)(B) is amended by striking ``in the case of any 
other confinement sentence for an offense committed prior to the 
defendant's eighteenth birthday, the date of the defendant's last 
release from confinement on such sentence (see Sec.  4A1.2(d)(2)(A))'' 
and inserting ``in the case of an adult term of imprisonment of at 
least sixty days for an offense committed prior to the defendant's 
eighteenth birthday, the date of the defendant's last release from 
incarceration on such sentence (see Sec.  4A1.2(d)(2)(A))''.
    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended in Note 7 by striking ``Therefore, for offenses committed prior 
to age eighteen, only those that resulted in adult sentences of 
imprisonment exceeding one year and one month, or resulted in 
imposition of an adult or juvenile sentence or release from confinement 
on that sentence within five years of the defendant's commencement of 
the instant offense are counted'' and inserting ``Therefore, for 
offenses committed prior to age eighteen, only certain adult or 
juvenile sentences are counted''.
    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``An adult or juvenile sentence imposed 
for an offense committed prior to the defendant's eighteenth birthday 
is counted only if confinement resulting from such sentence extended 
into the five-year period preceding the defendant's commencement of the 
instant offense'' and inserting ``An adult sentence imposed for an 
offense committed prior to the defendant's eighteenth birthday is 
counted only if the defendant's incarceration resulting from such 
sentence extended into the five-year period preceding the defendant's 
commencement of the instant offense''.]
    [Option 2 (Deleting all references to juvenile sentences as part of 
the criminal history calculation rules):
    Section 4A1.2(c)(2) is amended by striking ``Juvenile status 
offenses and truancy''.
    Section 4A1.2(d) is amended--
    in paragraph (2)(A) by striking: ``add 2 points under Sec.  
4A1.1(b) for each adult or juvenile sentence to confinement of at least 
sixty days if the defendant was released from such confinement within 
five years of his commencement of the instant offense'' and inserting 
``add 2 points under Sec.  4A1.1(b) for each adult sentence of 
imprisonment of at least sixty days that resulted in the defendant 
being incarcerated within five years of his commencement of the instant 
offense'';
    in paragraph (2)(B) by striking ``adult or juvenile sentence'' and 
inserting ``adult sentence'';
    and by inserting at the end the following new paragraph (3):
    ``(3) Sentences resulting from juvenile adjudications are not 
counted[, but may be considered under Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category (Policy Statement))].''.
    Section 4A1.2(f) is amended by striking ``, except that diversion 
from juvenile court is not counted''.
    Section 4A1.2(k)(2)(B) is amended by striking ``in the case of any 
other confinement sentence for an offense committed prior to the 
defendant's eighteenth birthday, the date of the defendant's last 
release from confinement on such sentence (see Sec.  4A1.2(d)(2)(A))'' 
and inserting ``in the case of an adult term of imprisonment of at 
least sixty days for an offense committed prior to the defendant's 
eighteenth birthday, the date of the defendant's last release from 
incarceration on such sentence (see Sec.  4A1.2(d)(2)(A))''.
    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended in Note 7 by striking the following:
    ``Offenses Committed Prior to Age Eighteen.--Section 4A1.2(d) 
covers offenses committed prior to age eighteen. Attempting to count 
every juvenile adjudication would have the potential for creating large 
disparities due to the differential availability of records. Therefore, 
for offenses committed prior to age eighteen, only those that resulted 
in adult sentences of imprisonment exceeding one year and one month, or 
resulted in imposition of an adult or juvenile sentence or release from 
confinement on that sentence within five years of the defendant's 
commencement of the instant offense are counted. To avoid disparities 
from jurisdiction to jurisdiction in the age at which a defendant is 
considered a `juvenile,' this provision applies to all offenses 
committed prior to age eighteen.'';
    and inserting the following:
    ``Offenses Committed Prior to Age Eighteen.--Section 4A1.2(d) 
covers offenses committed prior to age eighteen. Offenses prior to age 
eighteen are counted only if the defendant was convicted and sentenced 
as an adult. If the defendant was convicted as an adult for an offense 
committed before age eighteen and received a sentence exceeding one 
year and one month, Sec.  4A1.2(e) provides the applicable time period 
for counting the sentence. All other adult sentences for offenses 
committed prior to age eighteen are counted in accordance with Sec.  
4A1.2(d)(2).''.
    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended--

[[Page 89148]]

    in Note 2 by striking ``An adult or juvenile sentence imposed for 
an offense committed prior to the defendant's eighteenth birthday is 
counted only if confinement resulting from such sentence extended into 
the five-year period preceding the defendant's commencement of the 
instant offense'' and inserting ``An adult sentence imposed for an 
offense committed prior to the defendant's eighteenth birthday is 
counted only if the defendant's incarceration resulting from such 
sentence extended into the five-year period preceding the defendant's 
commencement of the instant offense'';
    and in Note 3 by striking ``An adult or juvenile sentence'' and 
inserting ``An adult sentence''.]
    [Option 3 (Deleting all criminal history rules requiring counting 
of offenses committed prior to age eighteen):
    Section 4A1.2(c)(2) is amended by striking ``Juvenile status 
offenses and truancy''.
    Section 4A1.2(d) is amended by striking the following:
    ``(1) If the defendant was convicted as an adult and received a 
sentence of imprisonment exceeding one year and one month, add 3 points 
under Sec.  4A1.1(a) for each such sentence.
    (2) In any other case,
    (A) add 2 points under Sec.  4A1.1(b) for each adult or juvenile 
sentence to confinement of at least sixty days if the defendant was 
released from such confinement within five years of his commencement of 
the instant offense;
    (B) add 1 point under Sec.  4A1.1(c) for each adult or juvenile 
sentence imposed within five years of the defendant's commencement of 
the instant offense not covered in (A).'';
    and inserting the following:
    ``Sentences resulting from offenses committed prior to age eighteen 
are not counted[, but may be considered under Sec.  4A1.3 (Departures 
Based on Inadequacy of Criminal History Category (Policy 
Statement))].''.
    Section 4A1.2(e) is amended by striking paragraph (4) as follows:
    ``(4) The applicable time period for certain sentences resulting 
from offenses committed prior to age eighteen is governed by Sec.  
4A1.2(d)(2).''.
    Section 4A1.2(f) is amended by striking ``, except that diversion 
from juvenile court is not counted''.
    Section 4A1.2(k)(2) is amended by striking the following:
    ``Revocation of probation, parole, supervised release, special 
parole, or mandatory release may affect the time period under which 
certain sentences are counted as provided in Sec.  4A1.2(d)(2) and (e). 
For the purposes of determining the applicable time period, use the 
following: (A) in the case of an adult term of imprisonment totaling 
more than one year and one month, the date of last release from 
incarceration on such sentence (see Sec.  4A1.2(e)(1)); (B) in the case 
of any other confinement sentence for an offense committed prior to the 
defendant's eighteenth birthday, the date of the defendant's last 
release from confinement on such sentence (see Sec.  4A1.2(d)(2)(A)); 
and (C) in any other case, the date of the original sentence (see Sec.  
4A1.2(d)(2)(B) and (e)(2)).'';
    and inserting the following:
    ``Revocation of probation, parole, supervised release, special 
parole, or mandatory release may affect the time period under which 
certain sentences are counted as provided in Sec.  4A1.2(e). For the 
purposes of determining the applicable time period, use the following: 
(A) in the case of an adult term of imprisonment totaling more than one 
year and one month, the date of last release from incarceration on such 
sentence (see Sec.  4A1.2(e)(1)); and (B) in any other case, the date 
of the original sentence (see Sec.  4A1.2(e)).''.
    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended--
    in Note 7 by striking the following:
    ``Offenses Committed Prior to Age Eighteen.--Section 4A1.2(d) 
covers offenses committed prior to age eighteen. Attempting to count 
every juvenile adjudication would have the potential for creating large 
disparities due to the differential availability of records. Therefore, 
for offenses committed prior to age eighteen, only those that resulted 
in adult sentences of imprisonment exceeding one year and one month, or 
resulted in imposition of an adult or juvenile sentence or release from 
confinement on that sentence within five years of the defendant's 
commencement of the instant offense are counted. To avoid disparities 
from jurisdiction to jurisdiction in the age at which a defendant is 
considered a `juvenile,' this provision applies to all offenses 
committed prior to age eighteen.'';
    and inserting the following:
    ``Offenses Committed Prior to Age Eighteen.--Sentences resulting 
from offenses committed prior to age eighteen are not counted. 
[Nonetheless, the criminal conduct underlying any conviction resulting 
from offenses committed prior to age eighteen may be considered 
pursuant to Sec.  4A1.3 (Departures Based on Inadequacy of Criminal 
History Category (Policy Statement)).]'';
    and in Note 8 by striking ``Section 4A1.2(d)(2) and (e) establishes 
the time period within which prior sentences are counted. As used in 
Sec.  4A1.2(d)(2) and (e), the term `commencement of the instant 
offense' includes any relevant conduct'' and inserting ``Section 
4A1.2(e) establishes the time period within which prior sentences are 
counted. As used in Sec.  4A1.2(e), the term `commencement of the 
instant offense' includes any relevant conduct''.
    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended--
    in note 1 by striking ``A sentence imposed for an offense committed 
prior to the defendant's eighteenth birthday is counted under this 
subsection only if it resulted from an adult conviction'' and inserting 
``A sentence imposed for an offense committed prior to the defendant's 
eighteenth birthday is not counted'';
    in Note 2 by striking ``An adult or juvenile sentence imposed for 
an offense committed prior to the defendant's eighteenth birthday is 
counted only if confinement resulting from such sentence extended into 
the five-year period preceding the defendant's commencement of the 
instant offense'' and inserting ``A sentence imposed for an offense 
committed prior to the defendant's eighteenth birthday is not 
counted'';
    and in Note 3 by striking ``An adult or juvenile sentence imposed 
for an offense committed prior to the defendant's eighteenth birthday 
is counted only if imposed within five years of the defendant's 
commencement of the current offense'' and inserting ``A sentence 
imposed for an offense committed prior to the defendant's eighteenth 
birthday is not counted''.
    The Commentary to Sec.  2K1.3 captioned ``Application Notes'' is 
amended in Note 2, in the paragraph that begins '' `Felony conviction' 
means'', by striking ``A conviction for an offense committed prior to 
age eighteen years 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.  2K2.1 captioned ``Application Notes'' is 
amended in Note 1, in the paragraph that begins '' `Felony conviction' 
means'', by striking ``A conviction for an offense committed prior to 
age eighteen years 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

[[Page 89149]]

defendant's eighteenth birthday is an adult conviction if the defendant 
was expressly proceeded against as an adult).''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking the following:
    ``In General.--
    (A) `Ordered Deported or Ordered Removed from the United States for 
the First Time'.--For purposes of this guideline, a defendant shall be 
considered `ordered deported or ordered removed from the United States' 
if the defendant was ordered deported or ordered removed from the 
United States based on a final order of exclusion, deportation, or 
removal, regardless of whether the order was in response to a 
conviction. `For the first time' refers to the first time the defendant 
was ever the subject of such an order.
    (B) Offenses Committed Prior to Age Eighteen.--Subsections (b)(1), 
(b)(2), and (b)(3) do not apply to a conviction for an offense 
committed before the defendant was eighteen years of age unless such 
conviction is classified as an adult conviction under the laws of the 
jurisdiction in which the defendant was convicted.'';
    and inserting the following:
    `` `Ordered Deported or Ordered Removed from the United States for 
the First Time'.--For purposes of this guideline, a defendant shall be 
considered `ordered deported or ordered removed from the United States' 
if the defendant was ordered deported or ordered removed from the 
United States based on a final order of exclusion, deportation, or 
removal, regardless of whether the order was in response to a 
conviction. `For the first time' refers to the first time the defendant 
was ever the subject of such an order.''.
    Section 4B1.2(e)(4) is amended by striking ``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).''.]
    Issues for Comment:
    1. The Commission seeks general comment on juvenile court systems 
and sentencing of youthful individuals. In particular, the Commission 
requests input on: (a) how different jurisdictions sentence younger 
individuals (e.g., youthful rehabilitation statutes); (b) how judges 
make decisions regarding residential placement or confinement upon an 
adjudication of guilt; (c) the factors that influence transfer to adult 
court for offenses committed prior to age eighteen; (d) racial 
disparities; and (e) practices related to expungement and sealing of 
records in different jurisdictions. For example, are there particular 
research studies, experts, or practitioners that the Commission should 
consult?
    2. The Commission seeks comment on whether it should make any of 
the changes set forth in Part A of the proposed amendment with respect 
to juvenile sentences and sentences for offenses committed prior to age 
eighteen for purposes of Chapter Four, Part A (Criminal History). 
Should the Commission limit any of the options based on: (a) the type 
of crime involved in the offense committed prior to age eighteen; (b) 
the age of the individual at the time of the offense committed prior to 
age eighteen; or (c) any other factor? Should the Commission consider 
an alternative approach in accounting for offenses committed prior to 
age eighteen, such as a downward departure?
    3. If the Commission were to promulgate Option 2 (exclude juvenile 
sentences) or Option 3 (exclude all sentences for offenses committed 
prior to age eighteen) in Part A of the proposed amendment, should the 
Commission provide that any such sentence may be considered for 
purposes of an upward departure under Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category (Policy Statement)) as provided 
in the bracketed language? If so, should the Commission limit the 
consideration of such departures to certain offenses?
    4. Option 3 would amend subsection (d) of Sec.  4A1.2 (Definitions 
and Instructions for Computing Criminal History) to exclude all 
sentences resulting from offenses committed prior to age eighteen from 
being considered in the calculation of the criminal history score. This 
change would impact the use of predicate offenses in multiple 
guidelines, including Sec. Sec.  2K1.3 (Unlawful Receipt, Possession, 
or Transportation of Explosive Materials; Prohibited Transactions 
Involving Explosive Materials), 2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition), 2L1.2 (Unlawfully Entering or 
Remaining in the United States), and 4B1.2 (Definitions of Terms Used 
in Section 4B1.1). Some of these guideline provisions were promulgated 
in response to directives, such as 28 U.S.C. 994(h). The Commission 
invites comment on whether Option 3 exceeds the Commission's authority 
under 28 U.S.C. 994(h) or any other congressional directives.
    5. If the Commission were to promulgate any of the options in Part 
A of the proposed amendment and amend subsection (d) of Sec.  4A1.2 
(Definitions and Instructions for Computing Criminal History), should 
the Commission make any changes to Sec.  3B1.4 (Using a Minor to Commit 
a Crime)? If so, what changes should the Commission make? For example, 
should the Commission expand the scope of application or increase the 
magnitude of the adjustment? If so, how?

(B) Sentencing of Youthful Individuals

    Proposed Amendment:
    Section 5H1.1 is amended by striking the following:
    ``Age (including youth) may be relevant in determining whether a 
departure is warranted, if considerations based on age, individually or 
in combination with other offender characteristics, are present to an 
unusual degree and distinguish the case from the typical cases covered 
by the guidelines. Age may be a reason to depart downward in a case in 
which the defendant is elderly and infirm and where a form of 
punishment such as home confinement might be equally efficient as and 
less costly than incarceration. Physical condition, which may be 
related to age, is addressed at Sec.  5H1.4 (Physical Condition, 
Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).'';
    and inserting the following:
    ``Age may be relevant in determining whether a departure is 
warranted. Age may be a reason to depart downward in a case in which 
the defendant is elderly and infirm and where a form of punishment such 
as home confinement might be equally efficient as and less costly than 
incarceration. A downward departure also may be warranted due to the 
defendant's youthfulness at the time of the offense. In an appropriate 
case, the court may consider whether a form of punishment other than 
imprisonment might be sufficient to meet the purposes of sentencing. In 
determining whether a departure based on youth is warranted, and the 
extent of such departure, the court should consider the following:
    (1) Scientific studies on brain development showing that 
psychosocial maturity, which involves impulse control, risk assessment, 
decision-making, and resistance to peer pressure, is generally not 
developed until the mid-20s.
    (2) Research showing a correlation between age and rearrest rates, 
with younger individuals rearrested at higher

[[Page 89150]]

rates and sooner after release than older individuals.
    Physical condition, which may be related to age, is addressed at 
Sec.  5H1.4 (Physical Condition, Including Drug or Alcohol Dependence 
or Abuse; Gambling Addiction).''.
    Issues for Comment:
    1. The Commission seeks general comment on sentencing of younger 
individuals, including how to balance brain development research 
suggesting potentially lower culpability with research on higher 
rearrest rates and potential dangerousness. The Commission further 
seeks comment on any relevant developments in legal or scientific 
literature relating to the impact of brain development and age on 
youthful criminal behavior. For example, are there particular research 
studies, experts, or practitioners that the Commission should consult?
    2. The Commission seeks comment on whether it should amend Sec.  
5H1.1 (Age (Policy Statement)) as set forth in Part B of the proposed 
amendment or otherwise change the provision in any other way with 
respect to youthful individuals. Should the Commission include 
additional or different factors for courts to consider in determining 
whether a downward departure based on youth may be warranted?

3. Acquitted Conduct

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's consideration of possible amendments to the 
Guidelines Manual to prohibit the use of acquitted conduct in applying 
the guidelines. See U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 
88 FR 60536 (Sept. 1, 2023).
    Acquitted conduct is not expressly addressed in the Guidelines 
Manual, except for a reference in the parenthetical summary of the 
holding in United States v. Watts, 519 U.S. 148 (1997). See USSG Sec.  
6A1.3, comment. However, consistent with the Supreme Court's holding in 
Watts, consideration of acquitted conduct is permitted under the 
guidelines through the operation of Sec.  1B1.3 (Relevant Conduct 
(Factors that Determine the Guideline Range)), in conjunction with 
Sec.  1B1.4 (Information to be Used in Imposing Sentence) and Sec.  
6A1.3 (Resolution of Disputed Factors (Policy Statement)).
    Section 1B1.3 sets forth the principles and limits of sentencing 
accountability for purposes of determining a defendant's guideline 
range, a concept referred to as ``relevant conduct.'' Relevant conduct 
impacts nearly every aspect of guidelines application, including the 
determination of: base offense levels where more than one level is 
provided, specific offense characteristics, and any cross references in 
Chapter Two (Offense Conduct); any adjustments in Chapter Three 
(Adjustment); and certain departures and adjustments in Chapter Five 
(Determining the Sentence).
    Specifically, Sec.  1B1.3(a)(1) provides that relevant conduct 
comprises ``all acts and omissions committed, aided, abetted, 
counseled, commanded, induced, procured, or willfully caused by the 
defendant,'' and all acts and omissions of others ``in the case of a 
jointly undertaken criminal activity,'' that ``occurred during the 
commission of the offense of conviction, in preparation for that 
offense, or in the course of attempting to avoid detection or 
responsibility for that offense.''
    Relevant conduct also includes, for some offense types, ``all acts 
and omissions described in subdivisions (1)(A) and (1)(B) above that 
were part of the same course of conduct or common scheme or plan as the 
offense of conviction,'' ``all harm that resulted from the acts and 
omissions specified in subsections (a)(1) and (a)(2) above, and all 
harm that was the object of such acts and omissions,'' and ``any other 
information specified in the applicable guideline.'' See USSG Sec.  
1B1.3(a)(2)-(a)(4). The background commentary to Sec.  1B1.3 explains 
that ``[c]onduct that is not formally charged or is not an element of 
the offense of conviction may enter into the determination of the 
applicable guideline sentencing range.''
    The Guidelines Manual also includes Chapter Six, Part A (Sentencing 
Procedures) addressing sentencing procedures that are applicable in all 
cases. Specifically, Sec.  6A1.3 provides for resolution of any 
reasonably disputed factors important to the sentencing determination. 
Section 6A1.3(a) provides, in pertinent part, that ``[i]n resolving any 
dispute concerning a factor important to sentencing determination, the 
court may consider relevant information without regard to its 
admissibility under the rules of evidence applicable at trial, provided 
that the information has sufficient indicia of reliability to support 
its probable accuracy.'' The Commentary to Sec.  6A1.3 instructs that 
``[i]n determining the relevant facts, sentencing judges are not 
restricted to information that would be admissible at trial'' and that 
``[a]ny information may be considered'' so long as it has sufficient 
indicia of reliability to support its probable accuracy. The Commentary 
cites to 18 U.S.C. 3661 and Supreme Court case law upholding the 
sentencing court's discretion in considering any information at 
sentencing, so long as it is proved by a preponderance of the evidence. 
Consistent with the Supreme Court case law, the Commentary also 
provides that ``[t]he Commission believes that use of a preponderance 
of the evidence standard is appropriate to meet due process 
requirements and policy concerns in resolving disputes regarding 
application of the guidelines to the facts of a case.''
    In fiscal year 2022, nearly all sentenced individuals (62,529; 
97.5%) were convicted through a guilty plea. The remaining 1,613 
sentenced individuals (2.5% of all sentenced individuals) were 
convicted and sentenced after a trial, and 286 of those sentenced 
individuals (0.4% of all sentenced individuals) were acquitted of at 
least one offense or found guilty of only a lesser included offense.
    The proposed amendment would amend the Guidelines Manual to address 
the use of acquitted conduct for purposes of determining a sentence. 
Three options are presented.
    Option 1 would amend Sec.  1B1.3 to add a new subsection (c) 
providing that acquitted conduct is not relevant conduct for purposes 
of determining the guideline range. It would define ``acquitted 
conduct'' as conduct [underlying] [constituting an element of] a charge 
of which the defendant has been acquitted by the trier of fact in 
federal court or upon a motion of acquittal pursuant to Rule 29 of the 
Federal Rules of Criminal Procedure. It brackets possible language that 
would exclude from the definition of ``acquitted conduct'' conduct 
establishing, in whole or in part, the instant offense of conviction 
that was admitted by the defendant during a guilty plea colloquy or 
found by the trier of fact beyond a reasonable doubt. The proposed 
amendment further brackets the possibility of clarifying that such 
conduct is excluded from the definition regardless of whether the 
conduct also underlies a charge of which the defendant has been 
acquitted.
    Option 1 would also amend the Commentary to Sec.  6A1.3 (Resolution 
of Disputed Factors (Policy Statement)) to make conforming revisions 
addressing the use of acquitted conduct for purposes of determining the 
guideline range.
    Option 2 would amend the Commentary to Sec.  1B1.3 to add a new 
application note providing that a downward departure may be warranted 
if the use of acquitted conduct has a disproportionate impact in 
determining the guideline range relative to the offense of conviction. 
It brackets the possibility of limiting the departure's application to 
cases in which the impact

[[Page 89151]]

is ``extremely'' disproportionate. It clarifies in a parenthetical that 
acquitted conduct is conduct [underlying] [constituting an element of] 
a charge of which the defendant has been acquitted by the trier of fact 
in federal court or upon a motion of acquittal pursuant to Rule 29 of 
the Federal Rules of Criminal Procedure.
    Option 3 would amend Sec.  6A1.3 to add a new subsection (c) 
addressing the standard of proof required to resolve disputes involving 
sentencing factors. It provides that a preponderance of the evidence 
standard generally is appropriate to meet due process requirements and 
policy concerns in resolving such disputes. However, it further 
provides that acquitted conduct should not be considered unless it is 
established by clear and convincing evidence.
    It would define ``acquitted conduct'' as conduct [underlying] 
[constituting an element of] a charge of which the defendant has been 
acquitted by the trier of fact in federal court or upon a motion of 
acquittal pursuant to Rule 29 of the Federal Rules of Criminal 
Procedure.
    Option 3 would also make conforming changes to the Commentary of 
Sec. Sec.  6A1.3 and 1B1.3.
    Issues for comment are also provided.
    Proposed Amendment:
    [Option 1 (Acquitted conduct excluded from guideline range):
    Section 1B1.3 is amended--
    in subsection (a), in the heading, by striking ``Chapters Two 
(Offense Conduct) and Three (Adjustments).'' and inserting ``Chapters 
Two (Offense Conduct) and Three (Adjustments).--'';
    in subsection (b), in the heading, by striking ``Chapters Four 
(Criminal History and Criminal Livelihood) and Five (Determining the 
Sentence).'' and inserting ``Chapters Four (Criminal History and 
Criminal Livelihood) and Five (Determining the Sentence).--'';
    and by inserting at the end the following new subsection (c):
    ``(c) Acquitted Conduct.--
    (1) Exclusion.--Acquitted conduct is not relevant conduct for 
purposes of determining the guideline range.
    (2) Definition of Acquitted Conduct.--`Acquitted conduct' means 
conduct (i.e., any acts or omission) [underlying] [constituting an 
element of] a charge of which the defendant has been acquitted by the 
trier of fact in federal court or upon a motion of acquittal pursuant 
to Rule 29 of the Federal Rules of Criminal Procedure.
    [`Acquitted conduct' does not include conduct that--
    (A) was admitted by the defendant during a guilty plea colloquy; or
    (B) was found by the trier of fact beyond a reasonable doubt;
    to establish, in whole or in part, the instant offense of 
conviction[, regardless of whether such conduct also underlies a charge 
of which the defendant has been acquitted].]''.
    The Commentary to Sec.  6A1.3 is amended--
    by striking ``see also United States v. Watts, 519 U.S. 148, 154 
(1997) (holding that lower evidentiary standard at sentencing permits 
sentencing court's consideration of acquitted conduct); Witte v. United 
States, 515 U.S. 389, 399-401 (1995) (noting that sentencing courts 
have traditionally considered wide range of information without the 
procedural protections of a criminal trial, including information 
concerning criminal conduct that may be the subject of a subsequent 
prosecution);'' and inserting ``Witte v. United States, 515 U.S. 389, 
397-401 (1995) (noting that sentencing courts have traditionally 
considered a wide range of information without the procedural 
protections of a criminal trial, including information concerning 
uncharged criminal conduct, in sentencing a defendant within the range 
authorized by statute);'';
    by striking ``Watts, 519 U.S. at 157'' and inserting ``Witte, 515 
U.S. at 399-401'';
    and by inserting at the end of the paragraph that begins ``The 
Commission believes that use of a preponderance of the evidence 
standard'' the following: ``Acquitted conduct, however, is not relevant 
conduct for purposes of determining the guideline range. See subsection 
(c) of Sec.  1B1.3 (Relevant Conduct). The court is not precluded from 
considering acquitted conduct in determining the sentence to impose 
within the guideline range, or whether a departure from the guidelines 
is warranted. See Sec.  1B1.4 (Information to be Used in Imposing a 
Sentence (Selecting a Point Within the Guideline Range or Departing 
from the Guidelines)).''.]
    [Option 2 (Downward departure):
    The Commentary to Sec.  1B1.3 captioned ``Application Notes'' is 
amended by inserting at the end the following new Note 10:
    ``10. Downward Departure Consideration for Acquitted Conduct.--If 
the use of acquitted conduct (i.e., conduct [underlying] [constituting 
an element of] a charge of which the defendant has been acquitted by 
the trier of fact in federal court or upon a motion of acquittal 
pursuant to Rule 29 of the Federal Rules of Criminal Procedure) has [an 
extremely] [a] disproportionate impact in determining the guideline 
range relative to the offense of conviction, a downward departure may 
be warranted.''.]
    [Option 3 (Clear and convincing evidence standard):
    Section 6A1.3 is amended--
    in subsection (a) by inserting at the beginning the following new 
heading: ``Presentation of Information.--'';
    in subsection (b) by inserting at the beginning the following new 
heading: ``Sentencing Hearing.--'';
    and by inserting at the end the following new subsection (c):
    ``(c) Standard of Proof.--The use of a preponderance of the 
evidence standard generally is appropriate to meet due process 
requirements and policy concerns in resolving disputes regarding 
application of the guidelines to the facts of a case. However, the 
court shall not consider acquitted conduct unless such conduct is 
established by clear and convincing evidence.
    For purposes of this guideline, `acquitted conduct' means conduct 
(i.e., any acts or omission) [underlying] [constituting an element of] 
a charge of which the defendant has been acquitted by the trier of fact 
in federal court or upon a motion of acquittal pursuant to Rule 29 of 
the Federal Rules of Criminal Procedure.''.
    The Commentary to Sec.  6A1.3 is amended by striking the last 
paragraph as follows:
    ``The Commission believes that use of a preponderance of the 
evidence standard is appropriate to meet due process requirements and 
policy concerns in resolving disputes regarding application of the 
guidelines to the facts of a case.''.
    The Commentary to Sec.  1B1.3 captioned ``Application Notes'' is 
amended by inserting at the end the following new Note 10:
    ``10. Acquitted Conduct.--In accordance with Sec.  6A1.3 
(Resolution of Disputed Factors (Policy Statement), a court may not 
consider acquitted conduct for purposes of determining the guideline 
range unless such conduct is established by clear and convincing 
evidence.''.]
    Issues for Comment:
    1. Option 1 of the proposed amendment would provide that acquitted 
conduct is not relevant conduct for purposes of determining the 
guideline range. It clarifies that a court is not precluded from 
considering acquitted conduct in determining the sentence to impose 
within the guideline range, or whether a departure from the guidelines 
is warranted. The Commission seeks comment on whether it should 
prohibit the consideration of acquitted conduct for purposes other than 
determining the guideline range.

[[Page 89152]]

For example, should the Commission prohibit a court from considering 
acquitted conduct in determining the sentence to impose within the 
guideline range, or whether a departure from the guidelines is 
warranted? Should the Commission go further by prohibiting the 
consideration of acquitted conduct for all purposes when imposing a 
sentence? The Commission seeks comment on the interaction between these 
more expansive potential prohibitions and 18 U.S.C. 3661, which 
provides that ``[n]o limitation shall be placed on the information 
concerning the background, character, and conduct of a person convicted 
of an offense which a court of the United States may receive and 
consider for the purpose of imposing an appropriate sentence.'' The 
Commission further seeks comment on whether any of these more expansive 
potential prohibitions exceeds the Commission's authority under 28 
U.S.C. 994 or any other congressional directives.
    The Commission further seeks comment on whether alternatively it 
should adopt a policy statement recommending against, rather than 
prohibiting, the consideration of acquitted conduct for certain 
sentencing steps. If so, what steps in the sentencing process should be 
included in such a policy statement? For example, should the policy 
statement recommend against the consideration of acquitted conduct for 
purposes of determining the guideline range, the sentence to impose 
within the guideline range, whether a departure from the guidelines is 
warranted, or any factor when imposing a sentence?
    2. The proposed amendment would define ``acquitted conduct'' as 
``conduct (i.e., any acts or omission) [underlying] [constituting an 
element of] a charge of which the defendant has been acquitted by the 
trier of fact in federal court or upon a motion of acquittal pursuant 
to Rule 29 of the Federal Rules of Criminal Procedure.'' The Commission 
seeks comment on whether it should expand the proposed definition of 
``acquitted conduct'' to also include acquittals from state, local, or 
tribal jurisdictions. Alternatively, should the Commission adopt the 
definition used in the ``Prohibiting Punishment of Acquitted Conduct 
Act of 2023,'' S. 2788, 118th Cong. (1st Sess. 2023)? That bill would 
define ``acquitted conduct'' as ``(1) an act (A) for which a person was 
criminally charged and adjudicated not guilty after trial in a Federal, 
State, or Tribal court; or (B) in the case of a juvenile, that was 
charged and for which the juvenile was found not responsible after a 
juvenile adjudication hearing; or (2) any act underlying a criminal 
charge or juvenile information dismissed (A) in a Federal court upon a 
motion for acquittal under rule 29 of the Federal Rules of Criminal 
Procedure; or (B) in a State or Tribal court upon a motion for 
acquittal or an analogous motion under the applicable State or Tribal 
rule of criminal procedure.''
    3. Option 1 of the proposed amendment brackets language that would 
exclude from the definition of ``acquitted conduct'' conduct 
establishing, in whole or in part, the instant offense of conviction 
that was admitted by the defendant during a guilty plea colloquy or 
found by the trier of fact beyond a reasonable doubt. This exclusion is 
meant to address cases in which conduct underlying an acquitted charge 
overlaps with conduct that establishes the instant offense of 
conviction. The Commission seeks comment on whether such an exclusion 
is necessary to address ``overlapping'' conduct. If so, does the 
proposed exclusion adequately address overlapping conduct, or should 
the Commission provide additional or different guidance to address 
overlapping conduct? Alternatively, should the Commission add 
commentary to Sec.  1B1.3 providing that courts should use their 
discretion under 18 U.S.C. 3553(a) when considering acquitted conduct 
in anomalous cases involving overlapping conduct, such as cases 
involving interrelated charges (e.g., charges for inchoate offenses and 
the underlying offense)?
    4. The Commission seeks comment on whether any or all of the 
options presented should be revised to specifically address acquittals 
based on reasons unrelated to the substantive evidence, such as 
jurisdiction, venue, or statute of limitations. If so, how? For 
example, should conduct underlying such acquittals be excluded from the 
definition of ``acquitted conduct''?

4. Circuit Conflicts

    Synopsis of Proposed Amendment: This proposed amendment addresses 
certain circuit conflicts involving Sec.  2K2.1 (Unlawful Receipt, 
Possession, or Transportation of Firearms or Ammunition; Prohibited 
Transactions Involving Firearms or Ammunition) and Sec.  2K2.4 (Use of 
Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation 
to Certain Crimes). See U.S. Sent'g Comm'n, ``Notice of Final 
Priorities,'' 88 FR 60536 (Sept. 1, 2023) (identifying resolution of 
circuit conflicts as a priority). The proposed amendment contains two 
parts (Part A and Part B). The Commission is considering whether to 
promulgate either or both parts, as they are not mutually exclusive.
    Part A would amend Sec.  2K2.1 to address a circuit conflict 
concerning whether a serial number must be illegible in order to apply 
the 4-level increase in Sec.  2K2.1(b)(4)(B)(i) for a firearm that 
``had an altered or obliterated serial number.'' Two options are 
presented. An issue for comment is also provided.
    Part B would amend the Commentary to Sec.  2K2.4 to address a 
circuit conflict concerning whether subsection (c) of Sec.  3D1.2 
(Groups of Closely Related Counts) permits grouping of a firearms count 
under 18 U.S.C. 922(g) with a drug trafficking count, where the 
defendant also has a separate count under 18 U.S.C. 924(c) based on the 
drug trafficking count. An issue for comment is also provided.

(A) Circuit Conflict Concerning Sec.  2K2.1(b)(4)(B)(ii)

    Synopsis of Proposed Amendment: Subsection (b)(4) of Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) 
provides an alternative enhancement for a firearm that was stolen, that 
had an altered or obliterated serial number, or that 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). Specifically, 
subsection (b)(4)(A) provides for a 2-level increase where a firearm is 
stolen, while subsection (b)(4)(B) provides for a 4-level increase 
where (i) a firearm has 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. The Commentary to Sec.  2K2.1 provides that subsection 
(b)(4)(A) and (B)(i) apply regardless of whether the defendant knew or 
had reason to believe that the firearm was stolen or had an altered or 
obliterated serial number. USSG Sec.  2K2.1, comment. (n.8(B)).
    The circuits are split regarding whether a serial number must be 
illegible in order to apply the 4-level increase in Sec.  
2K2.1(b)(4)(B)(i) for a firearm that ``had an altered or obliterated 
serial number.'' The Ninth Circuit first analyzed the meaning of 
``altered or obliterated'' and determined that ``a firearm's serial 
number is `altered or obliterated' when it is materially changed in a 
way that makes

[[Page 89153]]

accurate information less accessible.'' See United States v. Carter, 
421 F.3d 909, 916 (9th Cir. 2005). Various circuits have cited this 
decision, with different conclusions on the extent of legibility.
    The Sixth Circuit has determined that a serial number must be 
illegible, adopting a ``naked eye test'', that is, ``a serial number 
that is defaced but remains visible to the naked eye is not `altered or 
obliterated' under the guideline.'' United States v. Sands, 948 F.3d 
709, 719 (6th Cir. 2020). This holding is based on the Sixth Circuit's 
determination that ``[a]ny person with basic vision and reading ability 
would be able to tell immediately whether a serial number is legible,'' 
and may be less inclined to purchase a firearm without a legible serial 
number. Id. at 717. The Second Circuit has followed the Sixth Circuit 
in holding that ``altered'' means illegible for the same reasons. See 
United States v. St. Hilaire, 960 F.3d 61, 66 (2d Cir. 2020) (``We 
follow the Sixth Circuit, which defines `altered' to mean illegible.'' 
(citing Sands, 948 F.3d at 715, 719)).
    By contrast, the Fourth, Fifth, and Eleventh Circuits have upheld 
the enhancement where a serial number is legible or ``less legible.'' 
See, e.g., United States v. Millender, 791 F. App'x 782 (11th Cir. 
2019); United States v. Harris, 720 F.3d 499 (4th Cir. 2013); United 
States v. Perez, 585 F.3d 880 (5th Cir. 2009). The Fourth Circuit held 
that ``a serial number that is made less legible is made different and 
therefore is altered for purposes of the enhancement.'' Harris, 720 
F.3d at 501. Similarly, the Fifth Circuit affirmed the enhancement 
where the damage did not render the serial number unreadable but ``the 
serial number of the firearm [ ] had been materially changed in a way 
that made its accurate information less accessible.'' Perez, 585 F.3d 
at 884. While the Eleventh Circuit reasoned that an interpretation 
where altered means illegible ``would render `obliterated' 
superfluous.'' Millender, 791 App'x at 783.
    Part A of the proposed amendment would amend Sec.  2K2.1(b)(4) to 
include a definition for ``altered or obliterated serial number'' to 
address the circuit conflict. Two options are provided.
    Option 1 would set forth a definition of ``altered or obliterated 
serial number'' that adopts an approach similar to the approach of the 
Second and Sixth Circuits. It would provide that such term 
``[ordinarily] means a serial number of a firearm that has been 
changed, modified, affected, defaced, scratched, erased, or replaced 
such that the original information is rendered illegible or 
unrecognizable to the unaided eye.''
    Option 2 would set forth a definition of ``altered or obliterated 
serial number'' that adopts an approach similar to the approach of the 
Fourth, Fifth, Ninth, and Eleventh Circuits. It would provide that such 
term ``[ordinarily] means a serial number of a firearm that has been 
changed, modified, affected, defaced, scratched, erased, or replaced to 
make the [original] information less accessible, even if such 
information remains legible.''
    An issue for comment is also provided.
    Proposed Amendment:
    [Option 1:
    Section 2K2.1(b)(4) is amended by inserting after ``4 levels.'' the 
following: ``For purposes of subsection (b)(4)(B)(i), an `altered or 
obliterated serial number' [ordinarily] means a serial number of a 
firearm that has been changed, modified, affected, defaced, scratched, 
erased, or replaced such that the original information is rendered 
illegible or unrecognizable to the unaided eye.''.]
    [Option 2:
    Section 2K2.1(b)(4) is amended by inserting after ``4 levels.'' the 
following: ``For purposes of subsection (b)(4)(B)(i), an `altered or 
obliterated serial number' [ordinarily] means a serial number of a 
firearm that has been changed, modified, affected, defaced, scratched, 
erased, or replaced to make the [original] information less accessible, 
even if such information remains legible.''.]
    Issue for Comment:
    1. Part A of the proposed amendment sets forth two options to 
address the circuit conflict described in the synopsis above. The 
Commission seeks comment on whether it should address the circuit 
conflict in a manner other than the options provided in Part A of the 
proposed amendment. If so, how?

(B) Circuit Conflict Concerning the Interaction Between Sec.  2K2.4 and 
Sec.  3D1.2(c)

    Synopsis of Proposed Amendment: Section 3D1.2 (Grouping of Closely 
Related Counts) addresses the grouping of closely related counts for 
purposes of determining the offense level when a defendant has been 
convicted on multiple counts. Subsection (c) states that counts are 
grouped together ``[w]hen one of the counts embodies conduct that is 
treated as a specific offense characteristic in, or other adjustment 
to, the guideline applicable to another of the counts.'' The Commentary 
to Sec.  3D1.2 further explains that ``[s]ubsection (c) provides that 
when conduct that represents a separate count, e.g., bodily injury or 
obstruction of justice, is also a specific offense characteristic in or 
other adjustment to another count, the count represented by that 
conduct is to be grouped with the count to which it constitutes an 
aggravating factor.'' USSG Sec.  3D1.2, comment. (n.5).
    Section 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or 
Explosive During or in Relation to Certain Crimes) is the guideline 
applicable to certain statutes with mandatory minimum terms of 
imprisonment (e.g., 18 U.S.C. 924(c)). The guideline provides that if a 
defendant, whether or not convicted of another crime, was convicted of 
a violation of any of these statutes, the guideline sentence is the 
minimum term of imprisonment required by statute. See USSG Sec.  
2K2.4(a)-(b). Chapters Three (Adjustments) and Four (Criminal History 
and Criminal Livelihood) do not apply to that count of conviction. Id. 
In addition, the Commentary to Sec.  2K2.4 provides that ``[i]f a 
sentence under this guideline is imposed in conjunction with a sentence 
for an underlying offense, do not apply any specific offense 
characteristic for possession, brandishing, use, or discharge of an 
explosive or firearm when determining the sentence for the underlying 
offense.'' Id. comment. (n.4). The examples included in the application 
note specifically referenced 18 U.S.C. 924(c) (which penalizes the 
possession or use of a firearm during, and in relation to, an 
underlying ``crime of violence'' or ``drug trafficking crime'' by 
imposing a mandatory minimum penalty consecutive to the sentence for 
the underlying offense).
    The circuits are split regarding whether Sec.  3D1.2(c) permits 
grouping of a firearms count under 18 U.S.C. 922(g) with a drug 
trafficking count, where the defendant also has a separate count under 
18 U.S.C. 924(c) based on the drug trafficking count. Ordinarily, the 
firearms and drug trafficking counts would group under Sec.  3D1.2(c). 
The circuit conflict focuses on the presence of the count under 18 
U.S.C. 924(c) and its interaction with the Commentary to Sec.  2K2.4 
cited above precluding application of the relevant specific offense 
characteristics where the conduct covered by any such enhancement forms 
the basis of the conviction under 18 U.S.C.Sec.  924(c).
    The Sixth, Eighth, and Eleventh Circuits have held that such counts 
can be grouped in this situation. See, e.g., United States v. Gibbs, 
395 F. App'x 248, 250 (6th Cir. 2010) (``The district court properly 
grouped together Gibbs's drug and felon-in-possession

[[Page 89154]]

offenses.''); United States v. Bell, 477 F.3d 607, 615-16 (8th Cir. 
2007) (``the felon in possession count and the crack cocaine count 
should have been grouped together for sentencing purposes''); United 
States v. King, 201 F. App'x 715, 718 (11th Cir. 2006) (grouping 
permitted; felon-in-possession count ``embodies conduct that is treated 
as a specific offense characteristic'' to drug trafficking counts). 
These circuits held that grouping was permissible as the Chapter Two 
guidelines for the felon-in-possession conviction and drug conviction 
each include ``conduct that is treated as specific offense 
characteristics in the other offense,'' regardless of whether the 
enhancements are used due to the rules in Sec.  2K2.4 related to 18 
U.S.C. 924(c)). Bell, 477 F.3d at 615-16.
    By contrast, the Seventh Circuit has held that there is no basis 
for grouping felon-in-possession and drug trafficking counts since 
grouping rules are to be applied only after the offense level for each 
count has been determined and ``by virtue of Sec.  2K2.4, [the counts] 
did not operate as specific offense characteristics of each other, and 
the enhancements in Sec. Sec.  2D1.1(b)(1) and 2K2.1(b)(6)(B) did not 
apply.'' United States v. Sinclair, 770 F.3d 1148, 1157-58 (7th Cir. 
2014); see also United States v. Lamon, 893 F.3d 369, 371 (7th Cir. 
2018) (declining to overturn Sinclair to rectify the circuit split; 
``the mere existence of a circuit split does not justify overturning 
precedent . . . especially true here, because in Sinclair we knew that 
we were creating the split, and in doing so weighed the impact that our 
contrary decision would have on uniformity among the circuits''). The 
Seventh Circuit further explained, ``[w]ith this particular combination 
of offenses, the otherwise applicable basis for grouping the drug-
trafficking and felon-in-possession counts dropped out of the case.'' 
Sinclair, 770 F.3d at 1157-58.
    Part B of the proposed amendment generally follows the Sixth, 
Eighth, and Eleventh Circuits' approach. It would amend the Commentary 
to Sec.  2K2.4 to restate the grouping rule in Sec.  3D1.2(c) and 
provide an example stating that, in accordance with Sec.  3D1.2(c), in 
case in which the defendant is convicted of a felon-in-possession count 
under 18 U.S.C. 922(g) and a drug trafficking count underlying a 
conviction under 18 U.S.C. 924(c), such counts shall be grouped.
    An issue for comment is also provided.
    Proposed Amendment: The Commentary to Sec.  2K2.4 captioned 
``Application Notes'' is amended in Note 4 by striking the following:
    ``Weapon Enhancement.--If a sentence under this guideline is 
imposed in conjunction with a sentence for an underlying offense, do 
not apply any specific offense characteristic for possession, 
brandishing, use, or discharge of an explosive or firearm when 
determining the sentence for the underlying offense. A sentence under 
this guideline accounts for any explosive or weapon enhancement for the 
underlying offense of conviction, including any such enhancement that 
would apply based on conduct for which the defendant is accountable 
under Sec.  1B1.3 (Relevant Conduct). Do not apply any weapon 
enhancement in the guideline for the underlying offense, for example, 
if (A) a co-defendant, as part of the jointly undertaken criminal 
activity, possessed a firearm different from the one for which the 
defendant was convicted under 18 U.S.C. 924(c); or (B) in an ongoing 
drug trafficking offense, the defendant possessed a firearm other than 
the one for which the defendant was convicted under 18 U.S.C. 924(c). 
However, if a defendant is convicted of two armed bank robberies, but 
is convicted under 18 U.S.C. 924(c) in connection with only one of the 
robberies, a weapon enhancement would apply to the bank robbery which 
was not the basis for the 18 U.S.C. 924(c) conviction.
    A sentence under this guideline also accounts for conduct that 
would subject the defendant to an enhancement under Sec.  2D1.1(b)(2) 
(pertaining to use of violence, credible threat to use violence, or 
directing the use of violence). Do not apply that enhancement when 
determining the sentence for the underlying offense.
    If the explosive or weapon that was possessed, brandished, used, or 
discharged in the course of the underlying offense also results in a 
conviction that would subject the defendant to an enhancement under 
Sec.  2K1.3(b)(3) (pertaining to possession of explosive material in 
connection with another felony offense) or Sec.  2K2.1(b)(6)(B) 
(pertaining to possession of any firearm or ammunition in connection 
with another felony offense), do not apply that enhancement. A sentence 
under this guideline accounts for the conduct covered by these 
enhancements because of the relatedness of that conduct to the conduct 
that forms the basis for the conviction under 18 U.S.C. 844(h), Sec.  
924(c) or Sec.  929(a). For example, if in addition to a conviction for 
an underlying offense of armed bank robbery, the defendant was 
convicted of being a felon in possession under 18 U.S.C. 922(g), the 
enhancement under Sec.  2K2.1(b)(6)(B) would not apply.
    In a few cases in which the defendant is determined not to be a 
career offender, the offense level for the underlying offense 
determined under the preceding paragraphs may result in a guideline 
range that, when combined with the mandatory consecutive sentence under 
18 U.S.C. 844(h), Sec.  924(c), or Sec.  929(a), produces a total 
maximum penalty that is less than the maximum of the guideline range 
that would have resulted had there not been a count of conviction under 
18 U.S.C. 844(h), Sec.  924(c), or Sec.  929(a) (i.e., the guideline 
range that would have resulted if the enhancements for possession, use, 
or discharge of a firearm had been applied). In such a case, an upward 
departure may be warranted so that the conviction under 18 U.S.C. 
844(h), Sec.  924(c), or Sec.  929(a) does not result in a decrease in 
the total punishment. An upward departure under this paragraph shall 
not exceed the maximum of the guideline range that would have resulted 
had there not been a count of conviction under 18 U.S.C. 844(h), Sec.  
924(c), or Sec.  929(a).'';
    and inserting the following:
    ``Non-Applicability of Certain Enhancements.--
    (A) In General.--If a sentence under this guideline is imposed in 
conjunction with a sentence for an underlying offense, do not apply any 
specific offense characteristic for possession, brandishing, use, or 
discharge of an explosive or firearm when determining the sentence for 
the underlying offense. A sentence under this guideline accounts for 
any explosive or weapon enhancement for the underlying offense of 
conviction, including any such enhancement that would apply based on 
conduct for which the defendant is accountable under Sec.  1B1.3 
(Relevant Conduct). Do not apply any weapon enhancement in the 
guideline for the underlying offense, for example, if (A) a co-
defendant, as part of the jointly undertaken criminal activity, 
possessed a firearm different from the one for which the defendant was 
convicted under 18 U.S.C. 924(c); or (B) in an ongoing drug trafficking 
offense, the defendant possessed a firearm other than the one for which 
the defendant was convicted under 18 U.S.C. 924(c). However, if a 
defendant is convicted of two armed bank robberies, but is convicted 
under 18 U.S.C. 924(c) in connection with only one of the robberies, a 
weapon enhancement would apply to the bank robbery which was not the 
basis for the 18 U.S.C. 924(c) conviction.

[[Page 89155]]

    A sentence under this guideline also accounts for conduct that 
would subject the defendant to an enhancement under Sec.  2D1.1(b)(2) 
(pertaining to use of violence, credible threat to use violence, or 
directing the use of violence). Do not apply that enhancement when 
determining the sentence for the underlying offense.
    If the explosive or weapon that was possessed, brandished, used, or 
discharged in the course of the underlying offense also results in a 
conviction that would subject the defendant to an enhancement under 
Sec.  2K1.3(b)(3) (pertaining to possession of explosive material in 
connection with another felony offense) or Sec.  2K2.1(b)(6)(B) 
(pertaining to possession of any firearm or ammunition in connection 
with another felony offense), do not apply that enhancement. A sentence 
under this guideline accounts for the conduct covered by these 
enhancements because of the relatedness of that conduct to the conduct 
that forms the basis for the conviction under 18 U.S.C. 844(h), Sec.  
924(c) or Sec.  929(a). For example, if in addition to a conviction for 
an underlying offense of armed bank robbery, the defendant was 
convicted of being a felon in possession under 18 U.S.C. 922(g), the 
enhancement under Sec.  2K2.1(b)(6)(B) would not apply.
    (B) Impact on Grouping.--If two or more counts would otherwise 
group under subsection (c) of Sec.  3D1.2 (Groups of Closely Related 
Counts), the counts are to be grouped together under Sec.  3D1.2(c) 
despite the non-applicability of certain enhancements under Application 
Note 4(A). Thus, for example, in a case in which the defendant is 
convicted of a felon-in-possession count under 18 U.S.C. 922(g) and a 
drug trafficking count underlying a conviction under 18 U.S.C. 924(c), 
the counts shall be grouped pursuant to Sec.  3D1.2(c). The applicable 
Chapter Two guidelines for the felon-in-possession count and the drug 
trafficking count each include `conduct that is treated as a specific 
offense characteristic' in the other count, but the otherwise 
applicable enhancements did not apply due to the rules in Sec.  2K2.4 
related to 18 U.S.C. 924(c) convictions.
    (C) Upward Departure Provision.--In a few cases in which the 
defendant is determined not to be a career offender, the offense level 
for the underlying offense determined under the preceding paragraphs 
may result in a guideline range that, when combined with the mandatory 
consecutive sentence under 18 U.S.C. 844(h), Sec.  924(c), or Sec.  
929(a), produces a total maximum penalty that is less than the maximum 
of the guideline range that would have resulted had there not been a 
count of conviction under 18 U.S.C. 844(h), Sec.  924(c), or Sec.  
929(a) (i.e., the guideline range that would have resulted if the 
enhancements for possession, use, or discharge of a firearm had been 
applied). In such a case, an upward departure may be warranted so that 
the conviction under 18 U.S.C. 844(h), Sec.  924(c), or Sec.  929(a) 
does not result in a decrease in the total punishment. An upward 
departure under this paragraph shall not exceed the maximum of the 
guideline range that would have resulted had there not been a count of 
conviction under 18 U.S.C. 844(h), Sec.  924(c), or Sec.  929(a).''.
    Issue for Comment:
    1. Part B of the proposed amendment would amend the Commentary to 
Sec.  2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive 
During or in Relation to Certain Crimes) to address the circuit 
conflict described in the synopsis above. It would amend Application 
Note 4 in the Commentary to Sec.  2K2.4 to restate the grouping rule in 
subsection (c) of Sec.  3D1.2 (Grouping of Closely Related Counts) and 
provide an example stating that, in accordance with Sec.  3D1.2(c), in 
a case in which the defendant is convicted of a felon-in-possession 
count under 18 U.S.C. 922(g) and a drug trafficking count underlying a 
conviction under 18 U.S.C. 924(c), such counts shall be grouped. The 
Commission seeks comment on whether it should provide additional or 
different guidance to address this circuit conflict.
    In the alternative, should the Commission address the circuit 
conflict in a manner other than the one provided in Part B of the 
proposed amendment? For example, should the Commission amend Sec.  
3D1.2 to provide additional or different guidance about how to apply 
Sec.  3D1.2(c)?

5. Miscellaneous

    Synopsis of Proposed Amendment: This proposed amendment responds to 
recently enacted legislation and miscellaneous guideline issues. See 
U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 88 FR 60536 (Sept. 
1, 2023) (identifying as priorities ``[i]mplementation of any 
legislation warranting Commission action'' and ``[c]onsideration of 
other miscellaneous issues coming to the Commission's attention''). The 
proposed amendment contains six parts (Parts A through F). The 
Commission is considering whether to promulgate any or all these parts, 
as they are not mutually exclusive.
    Part A responds to the Safeguard Tribal Objects of Patrimony 
(``STOP'') Act of 2021, Public Law 117-258 (2022), by amending Appendix 
A (Statutory Index) and the Commentary to Sec.  2B1.5 (Theft of, Damage 
to, or Destruction of, Cultural Heritage Resources or Paleontological 
Resources; Unlawful Sale, Purchase, Exchange, Transportation, or 
Receipt of Cultural Heritage Resources or Paleontological Resources). 
An issue for comment is also provided.
    Part B responds to the Export Control Reform Act of 2018, enacted 
as part of the John McCain National Defense Authorization Act for 
Fiscal Year 2019, Public Law 115-232 (Aug. 13, 2018), and to concerns 
raised by the Department of Justice and the Disruptive Technology 
Strike Force (an interagency collaboration between the Department of 
Justice's National Security Division and the Department of Commerce's 
Bureau of Industry and Security), by amending Appendix A and Sec.  
2M5.1 (Evasion of Export Controls; Financial Transactions with 
Countries Supporting International Terrorism). Two issues for comment 
are also provided.
    Part C responds to concerns raised by the Department of Justice 
relating to offenses under 31 U.S.C. 5322 and 5336 and Sec.  2S1.3 
(Structuring Transactions to Evade Reporting Requirements; Failure to 
Report Cash or Monetary Transactions; Failure to File Currency and 
Monetary Instrument Report; Knowingly Filing False Reports; Bulk Cash 
Smuggling; Establishing or Maintaining Prohibited Accounts), by 
amending the specific offense characteristic at Sec.  2S1.3(b)(2)(B) to 
reflect the enhanced penalty applicable to offenses under those 
statutes.
    Part D responds to concerns raised by the Department of Justice 
relating to the statutes referenced in Appendix A to Sec.  2R1.1 (Bid-
Rigging, Price-Fixing or Market-Allocation Agreements Among 
Competitors), by amending Appendix A and the Commentary to Sec.  2R1.1 
to replace the reference to 15 U.S.C. 3(b) with a reference to 15 
U.S.C. 3(a).
    Part E addresses a miscellaneous issue regarding the application of 
the base offense levels at subsections (a)(1)-(a)(4) of Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy). Two options are presented.
    Part F responds to concerns raised by the Department of Justice 
relating to the scope of the definition of ``sex offense'' in 
subsection (b)(2) of Sec.  4C1.1 (Adjustment for Certain Zero-Point 
Offenders). Two options are presented.

[[Page 89156]]

(A) Safeguard Tribal Objects of Patrimony (``STOP'') Act of 2021

    Synopsis of Proposed Amendment: Part A of the proposed amendment 
responds to the Safeguard Tribal Objects of Patrimony (``STOP'') Act of 
2021, Public Law 117-258 (Dec. 21, 2022). The Act added two new 
criminal offenses at 25 U.S.C. 3073 (Export prohibitions; export 
certification system; international agreements). In addition, the Act 
increased the penalties for offenses under 18 U.S.C. 1170 (Illegal 
trafficking in Native American human remains and cultural items).
    The first new offense, created by the Act and codified at 25 U.S.C. 
3073(a)(1), prohibits exporting, attempting to export, or otherwise 
transporting from the United States any ``Item Prohibited from 
Exportation,'' and conspiring to engage in and concealing such 
activity. An ``Item Prohibited from Exportation'' means (A) a cultural 
item prohibited from being trafficked (including through sale, 
purchase, use for profit, or transport for sale or profit) by 18 U.S.C. 
1170(b) or any other federal law or treaty; and (B) an archaeological 
resource prohibited from being trafficked (including through sale, 
purchase, exchange, transport, receipt, or offer to sell, purchase, or 
exchange, including in interstate or foreign commerce) by subsections 
(b) and (c) of 16 U.S.C. 470ee (Archaeological Resources Protection; 
Prohibited acts and criminal penalties) or any other federal law or 
treaty. 25 U.S.C. 3072(5). A violation of this offense, if the person 
knew, or should have known, that the item was taken, possessed, 
transported, or sold in violation of, or in a manner that is unlawful 
under, any federal law or treaty, is punishable by a maximum term of 
imprisonment of one year and one day for a first violation (and not 
more than ten years for a second or subsequent violation), a fine, or 
both. 25 U.S.C. 3073(a)(2).
    The second new offense, codified at 25 U.S.C. 3073(b)(5)(A)(i), 
prohibits exporting, attempting to export, or otherwise transporting 
from the United States any ``Item Requiring Export Certification'' 
without first obtaining an export certification. An ``Item Requiring 
Export Certification'' means a cultural item and an archaeological 
resource but does not include any such item or resource for which an 
Indian Tribe or Native Hawaiian organization with a cultural 
affiliation with the item has provided a certificate authorizing 
exportation of the item. 25 U.S.C. 3072(6). A violation of this 
provision is subject to a civil penalty and any other applicable 
penalties under chapter 32B (Safeguard Tribal Objects of Patrimony) of 
title 25, United States Code. 25 U.S.C. 3073(b)(5)(A)(ii).
    In addition, the Act increased the maximum terms of imprisonment 
for offenses under 18 U.S.C. 1170. Section 1170(a) prohibits knowingly 
selling, purchasing, using for profit, or transporting for sale or 
profit, the human remains of a Native American without the right of 
possession to those remains. The Act increased the penalty for this 
offense from a maximum term of imprisonment of 12 months to one year 
and one day, changing its classification from a misdemeanor to a 
felony. It further increased the maximum term of imprisonment for a 
second or subsequent offense under section 1170(a) from five to ten 
years. The Act also increased the maximum term of imprisonment for a 
second or subsequent offense under 18 U.S.C. 1170(b) from five to ten 
years. Section 1170(b) prohibits knowingly selling, purchasing, using 
for profit, or transporting for sale or profit, any Native American 
cultural items obtained in violation of the Native American Grave 
Protection and Repatriation Act. Section 1170 offenses are currently 
referenced in Appendix A (Statutory Index) to Sec.  2B1.5 (Theft of, 
Damage to, or Destruction of, Cultural Heritage Resources or 
Paleontological Resources; Unlawful Sale, Purchase, Exchange, 
Transportation, or Receipt of Cultural Heritage Resources or 
Paleontological Resources). The maximum terms of imprisonment for 
offenses under 18 U.S.C. 1170, as revised by the Act, are still within 
the maximum penalty range of one year to 20 years for other offenses 
referenced to Sec.  2B1.5.
    Part A of the proposed amendment would amend Appendix A to 
reference the new offenses under 25 U.S.C. 3073 to Sec.  2B1.5. The 
conduct prohibited by 25 U.S.C. 3073 is similar to the conduct 
prohibited by 18 U.S.C. 1170. Part A of the proposed amendment would 
also amend the Commentary to Sec.  2B1.5 to reflect that 25 U.S.C. 3073 
is referenced to the guideline. In addition, it would make additional 
technical changes to the Commentary to Sec.  2B1.5, including 
specifying that 18 U.S.C. 666(a)(1)(A) is referenced to the guideline.
    An issue for comment is also provided.
    Proposed Amendment: Appendix A (Statutory Index) is amended by 
inserting before the line referenced to 25 U.S.C. 5306 the following 
new line reference:
    ``25 U.S.C. 3073 2B1.5''.
    The Commentary to Sec.  2B1.5 captioned ``Statutory Provisions'' is 
amended by striking ``16 U.S.C. 470aaa-5, 470ee, 668(a), 707(b); 18 
U.S.C. 541-546, 554, 641, 661-662, 666, 668, 1163, 1168, 1170, 1361, 
1369, 2232, 2314-2315'' and inserting: ``16 U.S.C. 470aaa-5, 470ee, 
668(a), 707(b); 18 U.S.C. 541-546, 554, 641, 661-662, 666(a)(1)(A), 
668, 1163, 1168, 1170, 1361, 1369, 2232, 2314-2315; 25 U.S.C. 3073. For 
additional statutory provision(s), see Appendix A (Statutory Index)''.
    Issue for Comment:
    1. In response to the Safeguard Tribal Objects of Patrimony 
(``STOP'') Act of 2021, Public Law 117-258 (2022), Part A of the 
proposed amendment would reference 25 U.S.C. 3073 to Sec.  2B1.5 (Theft 
of, Damage to, or Destruction of, Cultural Heritage Resources or 
Paleontological Resources; Unlawful Sale, Purchase, Exchange, 
Transportation, or Receipt of Cultural Heritage Resources or 
Paleontological Resources). The Commission seeks comment on whether any 
additional changes to the guidelines are required in response to the 
Act. Specifically, should the Commission amend Sec.  2B1.5 to provide a 
higher or lower base offense level in response to the changes brought 
by the Act? If so, what should that base offense level be and why? 
Should the Commission add a specific offense characteristic to Sec.  
2B1.5 in response to the Act? If so, what should that specific offense 
characteristic provide and why?

(B) Evasion of Export Controls

    Synopsis of Proposed Amendment: Part B of the proposed amendment 
responds to the Export Control Reform Act of 2018, enacted as part of 
the John McCain National Defense Authorization Act for Fiscal Year 
2019, Public Law 115-232 (Aug. 13, 2018), and to concerns raised by the 
Department of Justice and the Disruptive Technology Strike Force (an 
interagency collaboration between the Department of Justice's National 
Security Division and the Department of Commerce's Bureau of Industry 
and Security).
    The Export Control Reform Act of 2018 repealed the Export 
Administration Act of 1979 (previously codified at 50 U.S.C. 4601-4623) 
regarding export controls of dual-use items. Dual-use items have both 
civilian and military applications and are subject to export licensing 
requirements. The Export Control Reform Act of 2018 also included new 
provisions, codified at 50 U.S.C. 4801-4826, relating to export 
controls for national security and foreign policy purposes, to further 
the policy of the United States ``to restrict the export of items which 
would make a significant contribution to the military potential of any 
other country or

[[Page 89157]]

combination of countries which would prove detrimental to the national 
security of the United States'' and ``to restrict the export of items 
if necessary to further significantly the foreign policy of the United 
States or to fulfill its declared international obligations.'' See 50 
U.S.C. 4811. These new provisions authorize the Department of Commerce 
to develop the Export Administration Regulations, which establish the 
export controls governing dual-use and other items. In addition, the 
Export Control Reform Act of 2018 is the first export control statute 
to explicitly consider the economic security of the United States as a 
component or element of national security.
    The Export Control Reform Act of 2018 maintained much of the dual-
use export controls previously established under the Export 
Administration Act of 1979, but in a process that is still ongoing, the 
agencies charged with administering and enforcing the Act are still 
making significant changes to what items are controlled and have 
increased the overall restrictions on export licensing. In addition to 
the items and services already controlled by the Export Administration 
Regulations, the Export Control Reform Act of 2018 requires the 
President to establish an interagency process to identify ``emerging 
and foundational technologies that are `essential to the national 
security of the United States' '' but are not already included in the 
definition of ``critical technologies'' in the Foreign Investment Risk 
Review Modernization Act. See 50 U.S.C. 4817(a). Examples of ``emerging 
technologies'' include artificial intelligence and machine learning; 
quantum information and sensing technology; robotics; and 
biotechnology. ``Foundational technologies'' are described as 
technologies that may warrant stricter controls if an application or 
capability of that technology poses a national security threat. The 
Export Control Reform Act of 2018 also requires the Department of 
Commerce to ``establish and maintain a list'' of controlled items, 
foreign persons, and end uses determined to be a threat to national 
security and foreign policy. Id. Sec.  4813.
    The Export Control Reform Act of 2018 includes a criminal offense 
at new section 4819 (replacing repealed 50 U.S.C. 4610 (Violations)), 
which prohibits willfully committing, willfully attempting or 
conspiring to commit, or aiding and abetting a violation of the Act or 
of any regulation, order, license, or other authorization issued under 
the Act. Any such violation is punishable by a fine of not more than 
$1,000,000, a maximum term of imprisonment of 20 years, or both. See 50 
U.S.C. 4819(b). Offenses under repealed section 4610 are currently 
referenced in Appendix A (Statutory Index) to Sec.  2M5.1 (Evasion of 
Export Controls; Financial Transactions with Countries Supporting 
International Terrorism), which also appears to be the most analogous 
guideline for the offenses under new section 4819. The maximum term of 
imprisonment at new section 4819(b) is greater than the maximum 
penalties of five and ten years provided in the repealed section 4610 
but is within the maximum penalty range of ten to 20 years for other 
offenses referenced to Sec.  2M5.1.
    In addition, the Department of Justice and the Disruptive 
Technology Strike Force recommended that the Commission consider 
amending Sec.  2M5.1 to ensure that all controls related to national 
security are covered by the guideline provisions. See Annual Letter 
from the U.S. Department of Justice to the Commission (Aug. 1, 2023), 
at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202308/88FR39907_public-comment_R.pdf#page=38; Letter 
from U.S. Department of Justice National Security Division & U.S. 
Department of Commerce Bureau of Industry and Security (Aug. 1, 2023), 
at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202308/88FR39907_public-comment_R.pdf#page=55. Both the 
Department of Justice and the Disruptive Technology Strike Force are 
concerned that, given the wide-range of national security-related 
controls in force, some courts have applied Sec.  2M5.1 too narrowly.
    The Department of Justice explained that under the Export 
Administration Regulations and the Commerce Control List (contained 
within the Export Administration Regulations) export controls related 
to national security can carry different designations correlating to 
the specific reason certain items (i.e., commodities, software, 
technology) are subject to the nation's export licensing authority and 
are thus controlled. One such designation is ``NS'' (National 
Security), while other designations include ``MT'' (Missile 
Technology), ``RS,'' (Regional Stability), ``CB'' (Proliferation of 
Chemical and Biological Weapons), ``AT'' (Anti-Terrorism), and ``NP'' 
(Nuclear Nonproliferation). The Department of Justice further clarified 
that other export controls comprise ``the full spectrum of national 
security related controls,'' including export controls to certain 
military end-users and foreign entities when they present an 
unacceptable security risk to national security policy interests and 
export controls placed on certain goods and destinations based on 
sanctions and embargoes imposed by the President pursuant to the 
International Emergency Economic Powers Act (50 U.S.C. 1701-1705) or 
other specific acts of Congress.
    According to the Department of Justice, because Sec.  
2M5.1(a)(1)(A) specifically refers to ``national security controls,'' 
some sentencing courts may erroneously conclude that only the goods 
controlled under the Commerce Control List's ``NS'' designation, and 
not the goods controlled under separate sections of the Export 
Administration Regulations or the International Emergency Economic 
Powers Act, qualify for the higher alternative base offense level 26 at 
Sec.  2M5.1(a)(1)(A). Both the Department of Justice and the Disruptive 
Technology Strike Force recommend replacing the term ``national 
security controls'' currently used at Sec.  2M5.1(a)(1)(A) with the 
term ``controls related to national security,'' to ensure that the 
provision includes ``the full spectrum'' of national security-controls, 
including anti-terrorism, missile technology, regional stability, 
proliferation of chemical and biological weapons, nuclear 
nonproliferation, and military and weapons of mass destruction end-uses 
and end-users and entity-specific controls, and sanctions and 
embargoes.
    Part B of the proposed amendment would amend Appendix A and the 
Commentary to Sec.  2M5.1 to reflect the new United States Code section 
numbers relating to export controls for national security and foreign 
policy.
    Additionally, Part B of the proposed amendment would amend Sec.  
2M5.1(a)(1)(A) in response to the concerns raised by the Department of 
Justice and the Disruptive Technology Strike Force. It would replace 
the term ``national security controls'' with ``controls relating to 
national security [(including controls on emerging and foundational 
technologies)].''
    Finally, Part B of the proposed amendment would make technical 
changes to the Commentary to Sec.  2M5.1 by reorganizing the 
application notes and adding headings.
    Two issues for comment are also provided.
    Proposed Amendment: Appendix A (Statutory Index) is amended in the 
line referenced to 50 U.S.C. 4610 by striking ``Sec.  4610'' and 
inserting ``Sec.  4819''.
    Section 2M5.1(a)(1) is amended by striking ``national security 
controls'' and inserting ``controls relating to national security 
[(including controls on

[[Page 89158]]

emerging and foundational technologies)]''.
    The Commentary to Sec.  2M5.1 captioned ``Statutory Provisions'' is 
amended by striking ``50 U.S.C. 1705; 50 U.S.C. 4601-4623'' and 
inserting ``50 U.S.C. 1705, 4819''.
    The Commentary to Sec.  2M5.1 captioned ``Application Notes'' is 
amended--
    by striking Notes 1 through 4 as follows:
    ``1. In the case of a violation during time of war or armed 
conflict, an upward departure may be warranted.
    2. In determining the sentence within the applicable guideline 
range, the court may consider the degree to which the violation 
threatened a security interest of the United States, the volume of 
commerce involved, the extent of planning or sophistication, and 
whether there were multiple occurrences. Where such factors are present 
in an extreme form, a departure from the guidelines may be warranted. 
See Chapter Five, Part K (Departures).
    3. In addition to the provisions for imprisonment, 50 U.S.C. 4610 
contains provisions for criminal fines and forfeiture as well as civil 
penalties. The maximum fine for individual defendants is $250,000. In 
the case of corporations, the maximum fine is five times the value of 
the exports involved or $1 million, whichever is greater. When national 
security controls are violated, in addition to any other sanction, the 
defendant is subject to forfeiture of any interest in, security of, or 
claim against: any goods or tangible items that were the subject of the 
violation; property used to export or attempt to export that was the 
subject of the violation; and any proceeds obtained directly or 
indirectly as a result of the violation.
    4. For purposes of subsection (a)(1)(B), `a country supporting 
international terrorism' means a country designated under section 6(j) 
of the Export Administration Act (50 U.S.C. 4605).'';
    and by inserting the following new Notes 1, 2, and 3:
    ``1. Definition.--For purposes of subsection (a)(1)(B), `a country 
supporting international terrorism' means a country designated under 
section 1754 of the Export Controls Act of 2018 (50 U.S.C. 4813).
    2. Additional Penalties.--In addition to the provisions for 
imprisonment, 50 U.S.C. 4819 contains provisions for criminal fines and 
forfeiture as well as civil penalties.
    3. Departure Provisions.--
    (A) In General.--In determining the sentence within the applicable 
guideline range, the court may consider the degree to which the 
violation threatened a security interest of the United States, the 
volume of commerce involved, the extent of planning or sophistication, 
and whether there were multiple occurrences. Where such factors are 
present in an extreme form, a departure from the guidelines may be 
warranted. See Chapter Five, Part K (Departures).
    (B) War or Armed Conflict.--In the case of a violation during time 
of war or armed conflict, an upward departure may be warranted.''.
    Issues for Comment:
    1. In response to the Export Control Reform Act of 2018, enacted as 
part of the John McCain National Defense Authorization Act for Fiscal 
Year 2019, Public Law 115-232 (Aug. 13, 2018), Part B of the proposed 
amendment would amend Appendix A (Statutory Index) and the Commentary 
to Sec.  2M5.1 (Evasion of Export Controls; Financial Transactions with 
Countries Supporting International Terrorism). The current provisions 
of Sec.  2M5.1, including the term ``national security controls'' used 
in subsection (a)(1), are mostly based on the statutory provisions of 
the Export Administration Act of 1979. As explained in the synopsis 
above, the Export Control Reform Act of 2018 repealed and replaced the 
1979 Act and expanded the meaning of national security (to explicitly 
include the economic security of the United States as a component or 
element of national security), the types of items controlled (e.g., 
emerging and foundational technologies), and the reasons for control 
(e.g., persons and firms involved in activities contrary to national 
security or foreign policy interests). In addition, the agencies 
charged with administering and enforcing the Export Control Reform Act 
of 2018 are still making significant changes to what items are 
controlled and have increased the overall restrictions on export 
licensing. Accordingly, the Commission seeks general comment on whether 
any different or additional changes to the guidelines are required in 
response to the changes brought by the Export Control Reform Act of 
2018. Specifically, should the Commission revise the base offense 
levels at Sec.  2M5.1(a)? If so, what revision should the Commission 
make and why? Should the Commission add additional specific offense 
characteristics to Sec.  2M5.1? If so, what should any such specific 
offense characteristic provide and why? For example, should the 
Commission provide a definition of the term ``controls relating to 
national security''? Should the Commission include in the provisions of 
Sec.  2M5.1 specific references to controls relating to foreign policy 
or economic interest of the United States or to certain end-users and 
entities?
    2. Part B of the proposed amendment would also amend Sec.  2M5.1 in 
response to the concerns raised by the Department of Justice and the 
Disruptive Technology Strike Force (an interagency collaboration 
between the Department of Justice's National Security Division and the 
Department of Commerce's Bureau of Industry and Security). The 
Commission invites general comment on the Department of Justice's and 
Disruptive Technology Strike Force's concerns discussed in the synopsis 
above. Are the changes to Sec.  2M5.1 appropriate to address those 
concerns? Should the Commission provide additional or different 
guidance for applying Sec.  2M5.1? Is there an alternative approach 
that the Commission should consider in response to the concerns raised 
by the Department of Justice and the Disruptive Technology Strike 
Force?

(C) Offenses Involving Records and Reports on Monetary Instruments 
Transactions

    Synopsis of Proposed Amendment: Part C of the proposed amendment 
responds to concerns raised by the Department of Justice relating to 
enhanced penalties under 31 U.S.C. 5322 (Criminal penalties) and 
covered by Sec.  2S1.3 (Structuring Transactions to Evade Reporting 
Requirements; Failure to Report Cash or Monetary Transactions; Failure 
to File Currency and Monetary Instrument Report; Knowingly Filing False 
Reports; Bulk Cash Smuggling; Establishing or Maintaining Prohibited 
Accounts).
    Section 5322 is a penalty provision for the substantive criminal 
offenses in subchapter II (Records and Reports on Monetary Instruments 
Transactions) of chapter 53 of title 31, United States Code. The 
provisions of this subchapter are the reporting requirements of the 
Bank Secrecy Act (BSA) and impose substantial compliance requirements 
on financial institutions. A simple violation of an offense in this 
subchapter is punishable by a five-year maximum term of imprisonment, a 
fine, or both under 31 U.S.C. 5322(a). However, if the offense also 
involved ``violating another law of the United States or as part of a 
pattern of any illegal activity involving more than $100,000 in a 12-
month period,'' the maximum term of imprisonment increases to ten years 
as provided for at 31 U.S.C. 5322(b). Notably, other penalty provisions 
in subchapter II of chapter 53 of title 31, United States

[[Page 89159]]

Code, increase the maximum term of imprisonment if the offense involved 
``violating another law of the United States or as part of a pattern of 
any illegal activity involving more than $100,000 in a 12-month 
period.'' See 31 U.S.C. 5324(d) and 5336(h).
    The majority of the substantive criminal offenses in subchapter II 
of chapter 53 of title 31, United States Code, including 31 U.S.C. 
5322, 5324 and 5336, are referenced in Appendix A (Statutory Index) to 
Sec.  2S1.3. Relevant to this issue, Sec.  2S1.3(b)(2) provides for a 
2-level enhancement if ``the defendant (A) was convicted of an offense 
under subchapter II of chapter 53 of title 31, United States Code; and 
(B) committed the offense as part of a pattern of unlawful activity 
involving more than $100,000 in a 12-month period.'' USSG Sec.  
2S1.3(b)(2).
    During the 2022-2023 amendment cycle, the Department of Justice, in 
its letter addressing a proposed crime legislation amendment, noted 
that when the Commission promulgated Sec.  2S1.3(b)(2) it did not 
include the additional factor set forth in 31 U.S.C. 5322(b) that 
qualifies a defendant for the enhanced penalty, which is when an 
individual commits an offense under subchapter II of chapter 53 of 
title 31, United States Code, ``while violating another law of the 
United States.'' At the time, the Commission expressed interest in 
addressing this miscellaneous issue during the 2023-2024 amendment 
cycle.
    Part C of the proposed amendment would amend the specific offense 
characteristic at Sec.  2S1.3(b)(2)(B) to reflect the additional 
enhanced penalty factor under 31 U.S.C. 5322(b), 5324(d), and 5336. 
Specifically, it would revise the 2-level enhancement at Sec.  
2S1.3(b)(2)(B) to also apply if the defendant committed the offense 
``while violating another law of the United States.''
    Proposed Amendment: Section 2S1.3(b)(2)(B) is amended by striking 
``committed the offense as part of a pattern of unlawful activity'' and 
inserting ``committed the offense while violating another law of the 
United States or as part of a pattern of unlawful activity''.

(D) Antitrust Offenses

    Synopsis of Proposed Amendment: Part D of the proposed amendment 
responds to concerns raised by the Department of Justice relating to 
the statutes referenced in Appendix A (Statutory Index) to Sec.  2R1.1 
(Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among 
Competitors).
    Section 2R1.1 is intended to apply to antitrust offenses, 
particularly offenses relating to agreements among competitors, such as 
horizontal price-fixing (including bid-rigging) and horizontal market-
allocation, ``that are intended to, and serve no purpose other than to, 
restrict output and raise prices, and that are so plainly 
anticompetitive that they have been recognized as illegal per se, i.e., 
without any inquiry in individual cases as to their actual competitive 
effect.'' USSG Sec.  2R1.1, comment. (backg'd.).
    In the original 1987 Guidelines Manual, the only statute referenced 
in Appendix A to Sec.  2R1.1 was 15 U.S.C. 1 (Trusts, etc., in 
restraint of trade illegal; penalty), a provision of the Sherman 
Antitrust Act of 1890 that prohibits any contract or combination in the 
form of a trust or otherwise (or any such conspiracy) in restraint of 
trade or commerce among the several states or with foreign nations. In 
1990, the Commission amended Appendix A to reference 18 U.S.C. 1860 
(Bids at land sales) to Sec.  2R1.1. See Appendix C, amendment 359 
(effective Nov. 1, 1990). Section 1860 prohibits bargaining, 
contracting, or agreeing, or attempting to bargain, contract, or agree 
with another person that such person shall not bid upon or purchase any 
parcel of lands of the United States offered at public sale. It also 
prohibits using intimidation, combination, or unfair management, to 
hinder, prevent, or attempt to hinder or prevent, any person from 
bidding upon or purchasing any tract of land so offered for sale.
    In 2002, Congress amended 15 U.S.C. 3 to create a new criminal 
offense. See Section 14102 of the Antitrust Technical Corrections Act 
of 2002, Public Law 107-273 (Nov. 2, 2002). Prior to the Antitrust 
Technical Corrections Act of 2002, 15 U.S.C. 3 contained only one 
provision prohibiting any contract or combination in the form of trust 
or otherwise (or any such conspiracy) in restraint of trade or commerce 
in any territory of the United States or the District of Columbia. The 
Act redesignated the existing provision as subsection (a) and added a 
new criminal offense at a new subsection (b). Section 3(b) prohibits 
monopolization, attempts to monopolize, and combining or conspiring 
with another person to monopolize any part of the trade or commerce in 
or involving any territory of the United States or the District of 
Columbia. 15 U.S.C. 3(b).
    In 2003, the Commission amended Appendix A to reference 15 U.S.C. 
3(b) to Sec.  2R1.1 and the Commentary to Sec.  2R1.1 to reflect such 
reference. See Appendix C, amendment 661 (effective Nov. 1, 2003). The 
Commission did not include a reference in Appendix A to the then newly 
redesignated 15 U.S.C. 3(a). Section 3(a) is not currently referenced 
in Appendix A to any guideline.
    The Department of Justice has raised a concern that Appendix A and 
Sec.  2R1.1 contain inaccurate references to 15 U.S.C. 3(b). According 
to the Department of Justice, both Appendix A and the Commentary to 
Sec.  2R1.1 lists 15 U.S.C. 3(b) as a statutory provision covered by 
Sec.  2R1.1 when, in fact, the guideline should instead cover 15 U.S.C. 
3(a). The Department of Justice indicates that, other than 15 U.S.C. 
3(b), the statutes currently referenced in Appendix A to Sec.  2R1.1 
cover offenses relating to agreements or combinations in restraint of 
trade or commerce. Section 3(b) offenses address conduct relating to 
the acquisition or maintenance of monopoly power in a relevant market, 
which may be committed by a single entity and does not depend on 
agreement among competitors. According to the Department of Justice, 
these types of monopolization offenses are beyond the scope of Sec.  
2R1.1, as described in the Background Commentary, thus maintaining the 
Appendix A reference to the guideline has the potential to sow 
confusion in antitrust prosecutions. The Department of Justice suggests 
that the Commission replace the reference to 15 U.S.C. 3(b) in Appendix 
A and Sec.  2R1.1 with a reference to 15 U.S.C. 3(a), which is the 
provision in section 3 that addresses offenses relating to agreements 
in restraint of trade or commerce and is more similar to the other 
offenses already covered by Sec.  2R1.1.
    Part D of the proposed amendment would amendment Appendix A and the 
Commentary to Sec.  2R1.1 to replace the reference to 15 U.S.C. 3(b) 
with a reference to 15 U.S.C. 3(a). In addition, it would make 
technical changes to the Commentary to Sec.  2R1.1, including the 
addition of headings to some application notes.
    Proposed Amendment: Appendix A (Statutory Index) is amended in the 
line referenced to 15 U.S.C. 3(b) by striking ``Sec.  3(b)'' and 
inserting ``Sec.  3(a)''.
    The Commentary to Sec.  2R1.1 captioned ``Statutory Provisions'' is 
amended by striking ``Sec. Sec.  1, 3(b)'' and inserting ``Sec. Sec.  
1, 3(a)''.
    The Commentary to Sec.  2R1.1 captioned ``Application Notes'' is 
amended--
    in Note 3 by inserting at the beginning the following new heading: 
``Fines for Organizations.--'';

[[Page 89160]]

    in Note 4 by inserting at the beginning the following new heading: 
``Another Consideration in Setting Fine.--'';
    in Note 5 by inserting at the beginning the following new heading: 
``Use of Alternatives Other Than Imprisonment.--'';
    in Note 6 by inserting at the beginning the following new heading: 
``Understatement of Seriousness.--'';
    and in Note 7 by inserting at the beginning the following new 
heading: ``Defendant with Previous Antitrust Convictions.--''.
    The Commentary to Sec.  2R1.1 captioned ``Background'' is amended 
by striking ``These guidelines apply'' and inserting ``This guideline 
applies''.

(E) Enhanced Penalties for Drug Offenders

    Synopsis of Proposed Amendment: Part E of the proposed amendment 
addresses a miscellaneous issue regarding the application of the 
enhanced base offense levels at subsections (a)(1)-(a)(4) of Sec.  
2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy).
    The most common drug offenses that carry mandatory minimum 
penalties are set forth in 21 U.S.C. 841 and 960. Under both 
provisions, the mandatory minimum penalties are tied to the quantity 
and type of controlled substance involved in an offense. Enhanced 
mandatory minimum penalties are set forth in 21 U.S.C. 841(b) and 
960(b) for defendants whose instant offense resulted in death or 
serious bodily injury, or who have prior convictions for certain 
specified offenses. Greater enhanced mandatory minimum penalties are 
provided for those defendants whose instant offense resulted in death 
or serious bodily injury and who have a qualifying prior conviction.
    Section 2D1.1 provides specific base offense levels to reflect this 
enhanced penalty structure at Sec.  2D1.1(a)(1)-(a)(4). Section 
2D1.1(a)(1)(A) provides for a base offense level of 43 if ``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.'' Similarly, Sec.  2D1.1(a)(1)(B) provides for a base offense 
level of 43 if ``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.'' Each of the six 
statutory provisions enumerated within Sec.  2D1.1(a)(1)(A) and (B) 
require a mandatory term of life imprisonment for any defendant who has 
a qualifying prior offense and whose instant offense involved a 
substance that resulted in death or serious bodily injury.
    Section 2D1.1(a)(2) provides for a base offense level of 38 ``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.'' Each of the six statutory provisions 
enumerated within Sec.  2D1.1(a)(2) provides for a mandatory minimum 
term of imprisonment of not less than 20 years for a defendant whose 
instant offense involved a substance that resulted in death or serious 
bodily injury.
    Section 2D1.1(a)(3) provides for a base offense level of 30 if 
``the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 
960(b)(5), 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.'' Both statutory provisions enumerated 
within Sec.  2D1.1(a)(3) provide for an increased statutory maximum 
term of imprisonment of 30 years for any defendant who has a qualifying 
prior offense and whose instant offense involved a substance that 
resulted in death or serious bodily injury.
    Section 2D1.1(a)(4) provides for a base offense level of 26 if ``if 
the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 
960(b)(5), and the offense of conviction establishes that death or 
serious bodily injury resulted from the use of the substance.'' Both 
statutory provisions enumerated within Sec.  2D1.1(a)(4) provide for an 
increased statutory maximum term of imprisonment of 15 years for any 
defendant whose instant offense involved a substance that resulted in 
death or serious bodily injury.
    The Commission has heard concerns that it is not clear whether the 
enhanced base offense levels at Sec.  2D1.1(a)(1)-(a)(4) apply only 
when the defendant was convicted under the enhanced penalty provision 
of 21 U.S.C. 841 or 21 U.S.C. 960 because each statutory element was 
established, or whether they also apply whenever a defendant meets the 
applicable requirements, regardless of whether the defendant was in 
fact convicted under the enhanced penalty provision.
    Part E of the proposed amendment would amend Sec.  2D1.1(a)(1)-(4) 
to address these concerns. Two options are provided.
    Option 1 would amend Sec.  2D1.1(a)(1)-(4) to provide that the base 
offense levels in those provisions apply only if the defendant was 
convicted under 21 U.S.C. 841 or 21 U.S.C. 960, and was subject to a 
statutorily enhanced sentence under title 21, United States Code, for 
the offense of conviction because the specific statutory elements were 
established in accordance with the relevant provision in title 21, 
United States Code.
    Option 2 would amend Sec.  2D1.1(a)(1)-(4) so that the base offense 
levels in those provisions apply if the defendant was convicted under 
21 U.S.C. 841 or 21 U.S.C. 960 and the offense involved the applicable 
requirements. However, Sec.  2D1.1(a)(1) and (a)(3) would require that 
the fact that the offense was committed after one or more prior 
convictions for a serious drug felony, serious violent felony, or 
felony drug offense be established by the information filed by the 
government pursuant to 21 U.S.C. 851.
    Proposed Amendment:
    [Option 1:
    Section 2D1.1(a) is amended by striking paragraphs (1) through (4) 
as follows:
    ``(1) 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
    (2) 38, 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; or
    (3) 30, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E) 
or 21 U.S.C. 960(b)(5), and the offense of

[[Page 89161]]

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
    (4) 26, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E) 
or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that 
death or serious bodily injury resulted from the use of the substance; 
or'';
    and by inserting the following new paragraphs (1) through (4):
    ``(1) 43, if--
    (A) the defendant (i) 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 (ii) is subject to a 
statutorily enhanced sentence under title 21, United States Code, for 
the offense of conviction because (I) death or serious bodily injury 
resulted from the use of the substance; and (II) the defendant 
committed the offense after one or more prior convictions for a serious 
drug felony or serious violent felony, as established by the 
information filed by the government pursuant to 21 U.S.C. 851; or
    (B) the defendant (i) is convicted under 21 U.S.C. 841(b)(1)(C) or 
21 U.S.C. 960(b)(3); and (ii) is subject to a statutorily enhanced 
sentence under title 21, United States Code, for the offense of 
conviction because (I) death or serious bodily injury resulted from the 
use of the substance; and (II) the defendant committed the offense 
after one or more prior convictions for a felony drug offense, as 
established by the information filed by the government pursuant to 21 
U.S.C. 851; or
    (2) 38, if the defendant (A) 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 (B) is subject to a statutorily enhanced sentence under 
title 21, United States Code, for the offense of conviction because 
death or serious bodily injury resulted from the use of the substance; 
or
    (3) 30, if the defendant (A) is convicted under 21 U.S.C. 
841(b)(1)(E) or 21 U.S.C. 960(b)(5); and (B) is subject to a 
statutorily enhanced sentence under title 21, United States Code, for 
the offense of conviction because (i) death or serious bodily injury 
resulted from the use of the substance; and (ii) the defendant 
committed the offense after one or more prior convictions for a felony 
drug offense, as established by the information filed by the government 
pursuant to 21 U.S.C. 851; or
    (4) 26, if the defendant (A) is convicted under 21 U.S.C. 
841(b)(1)(E) or 21 U.S.C. 960(b)(5); and (B) is subject to a 
statutorily enhanced sentence under title 21, United States Code, for 
the offense of conviction because death or serious bodily injury 
resulted from the use of the substance; or''.]
    [Option 2:
    Section 2D1.1(a) is amended by striking paragraphs (1) through (4) 
as follows:
    ``(1) 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
    (2) 38, 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; or
    (3) 30, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E) 
or 21 U.S.C. 960(b)(5), 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
    (4) 26, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E) 
or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that 
death or serious bodily injury resulted from the use of the substance; 
or'';
    and by inserting the following new paragraphs (1) through (4):
    ``(1) 43, if--
    (A) (i) 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); (ii) the offense involved 
death or serious bodily injury resulting from the use of the substance; 
and (iii) the defendant committed the offense after one or more prior 
convictions for a serious drug felony or serious violent felony, as 
established by the information filed by the government pursuant to 21 
U.S.C. 851; or
    (B) (i) the defendant is convicted under 21 U.S.C. 841(b)(1)(C) or 
21 U.S.C. 960(b)(3); (ii) the offense involved death or serious bodily 
injury resulting from the use of the substance; and (iii) the defendant 
committed the offense after one or more prior convictions for a felony 
drug offense, as established by the information filed by the government 
pursuant to 21 U.S.C. 851; or
    (2) 38, if (A) 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 (B) the offense involved death or serious bodily injury 
resulting from the use of the substance; or
    (3) 30, if (A) the defendant is convicted under 21 U.S.C. 
841(b)(1)(E) or 21 U.S.C. 960(b)(5); (B) the offense involved death or 
serious bodily injury resulting from the use of the substance; and (C) 
the defendant committed the offense after one or more prior convictions 
for a felony drug offense, as established by the information filed by 
the government pursuant to 21 U.S.C. 851; or
    (4) 26, if (A) the defendant is convicted under 21 U.S.C. 
841(b)(1)(E) or 21 U.S.C. 960(b)(5); and (B) the offense involved death 
or serious bodily injury resulting from the use of the substance; 
or''.]

(F) ``Sex Offense'' Definition in Sec.  4C1.1

    Synopsis of Proposed Amendment: Part F of the proposed amendment 
responds to concerns raised by the Department of Justice relating to 
the scope of the definition of ``sex offense'' in subsection (b)(2) of 
Sec.  4C1.1 (Adjustment for Certain Zero-Point Offenders).
    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. 
See USSG App. C, amendment 821 (effective Nov. 1, 2023). The 2-level 
adjustment for defendants with zero criminal history points at Sec.  
4C1.1 applies only if none of the exclusionary criteria set forth in 
subsections (a)(1) through (a)(10) apply. Among the exclusionary 
criteria is subsection (a)(5), requiring that ``the [defendant's] 
instant offense of conviction is not a sex offense.'' Section 
4C1.1(b)(2) defines ``sex offense'' as ``(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;

[[Page 89162]]

or (B) an attempt or a conspiracy to commit any offense described in 
subparagraphs (A)(i) through (iv) of this definition.''
    The Department of Justice has raised a concern that the current 
definition of ``sex offense'' is too restrictive because it applies 
only to offenses perpetrated against minors. The Department of Justice 
first raised this issue during the 2022-2023 amendment cycle. In its 
letter addressing the proposed amendment on sexual abuse offenses, the 
Department of Justice noted that the restrictive definition of ``sex 
offense'' in the then-proposed Sec.  4C1.1 would run counter to the 
Commission's then-proposed amendment to increase the base offense level 
from level 14 to level 18 at Sec.  2A3.3 (Criminal Sexual Abuse of a 
Ward or Attempt to Commit Such Acts; Criminal Sexual Abuse of an 
Individual in Federal Custody).
    Part F of the proposed amendment would amend Sec.  4C1.2(b)(2) to 
broaden the definition of ``sex offense.'' Two options are provided.
    Option 1 would revise the current definition of ``sex offense'' at 
Sec.  4C1.1(b)(2) to also cover sexual abuse offenses against wards and 
individuals in federal custody under 18 U.S.C. 2243(b) and (c).
    Option 2 would expand the definition of ``sex offense'' at Sec.  
4C1.1(b)(2) to cover all offenses described in the listed provisions 
instead of only to offenses perpetrated against minors.
    Proposed Amendment:
    [Option 1:
    Section 4C1.1(b)(2) is amended by striking `` `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''; and inserting: 
`` `Sex offense' means (A) an offense under 18 U.S.C. 2243(b) or (c); 
(B) 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 (C) an 
attempt or a conspiracy to commit any offense described in 
subparagraphs (A) and (B) of this definition''.]
    [Option 2:
    Section 4C1.1(b)(2) is amended by striking `` `Sex offense' means 
(A) an offense, perpetrated against a minor, under''; and inserting `` 
`Sex offense' means (A) an offense under''.]

6. Technical

    Synopsis of Proposed Amendment: This proposed amendment would make 
technical and other non-substantive changes to the Guidelines Manual. 
The proposed amendment contains two parts (Part A and Part B). The 
Commission is considering whether to promulgate either or both parts, 
as they are not mutually exclusive.

Technical and Conforming Changes Relating to Sec.  4C1.1

    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. 
See USSG App. C, amendment 821 (effective Nov. 1, 2023). Part A of the 
proposed amendment would make technical and conforming changes relating 
to Sec.  4C1.1.
    First, Part A of the proposed amendment would amend Sec.  4C1.1. 
The 2-level adjustment for defendants with zero criminal history points 
at Sec.  4C1.1 applies only if none of exclusionary criteria set forth 
in subsections (a)(1) through (a)(10) applies. Among the exclusionary 
criteria is subsection (a)(10), requiring that ``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.'' Several provisions in Sec.  4C1.1 track similar language found 
in the safety valve criteria at 18 U.S.C. 3553(f). In particular, Sec.  
4C1.1(a)(10) mirrors 18 U.S.C. 3553(f)(4), which provides as a 
requirement that ``the defendant was not an organizer, leader, manager, 
or supervisor of others in the offense, as determined under the 
sentencing guidelines and was not engaged in a continuing criminal 
enterprise, as defined in section 408 of the Controlled Substances 
Act.''
    Historically, courts have generally interpreted 18 U.S.C. 
3553(f)(4) as excluding a defendant from safety valve eligibility if 
such defendant had either an aggravating role or were engaged in a 
continuing criminal enterprise, given the otherwise exclusionary 
language beginning each phrase of subsection (f)(4) (i.e., ``the 
defendant was not . . .'' and ``. . . was not engaged in''). The Sixth 
and the Seventh Circuits have squarely addressed this issue and held 
that defendants are ineligible for safety valve relief if they either 
have an aggravating role or engaged in a continuing criminal 
enterprise, but that it is not required to demonstrate both. See, e.g., 
United States v. Bazel, 80 F.3d 1140, 1143 (6th Cir. 1996); United 
States v. Draheim, 958 F.3d 651, 660 (7th Cir. 2020).
    The Commission intended Sec.  4C1.1(b)(10) to track the safety 
valve criteria at 18 U.S.C. 3553(f)(4) and be applied by courts in the 
same way--namely, that a defendant is ineligible for the adjustment if 
the defendant meets either of the disqualifying conditions in the 
provision. Nevertheless, since promulgation of new Sec.  4C1.1, several 
stakeholders have raised the question of whether the ``and'' in the 
subsection (a)(10) is conjunctive or disjunctive.
    To address the confusion caused by the use of the word ``and'' in 
that provision, Part A of the proposed amendment would make technical 
changes to Sec.  4C1.1 to divide subsection (a)(10) into two separate 
provisions, clarifying the Commission's intention that a defendant is 
ineligible for the adjustment if the defendant meets either of the 
disqualifying conditions listed in the provision.
    Finally, Part A of the proposed amendment would make conforming 
changes relating to Sec.  4C1.1 by adding necessary references to new 
Chapter Four, Part C (Adjustment for Certain Zero-Point Offenders) in 
subsection (a)(6) of Sec.  1B1.1 (Application Instructions), the 
Introductory Commentary to Chapter Two (Offense Conduct), and the 
Commentary to Sec. Sec.  3D1.1 (Procedure for Determining Offense Level 
on Multiple Counts) and 3D1.5 (Determining the Total Punishment). These 
guidelines and commentaries refer to the order in which the chapters of 
the Guidelines Manual should be applied.

Additional Technical and Clerical Changes

    Part B of the proposed amendment would make technical and clerical 
changes to--
    (1) the Commentary to Sec.  1B1.1 (Application Instructions), to 
add headings to some application notes, provide stylistic consistency 
in how subdivisions are designated, and correct a typographical error;
    (2) Sec.  2B1.1 (Theft, Property Destruction, and Fraud), to 
provide consistency in the use of capitalization and how subdivisions 
are designated, and to correct a reference to the term ``equity 
security'';
    (3) the Commentary to Sec.  2B1.6 (Aggravated Identity Theft), to 
correct

[[Page 89163]]

some typographical errors and provide stylistic consistency in how 
subdivisions are designated;
    (4) Sec.  2B3.1 (Robbery), to provide stylistic consistency in how 
subdivisions are designated and add headings to the application notes 
in the Commentary;
    (5) Sec.  2B3.2 (Extortion by Force or Threat of Injury or Serious 
Damage), to provide stylistic consistency in how subdivisions are 
designated and add headings to some application notes in the 
Commentary;
    (6) Sec.  2C1.8 (Making, Receiving, or Failing to Report a 
Contribution, Donation, or Expenditure in Violation of the Federal 
Election Campaign Act; Fraudulently Misrepresenting Campaign Authority; 
Soliciting or Receiving a Donation in Connection with an Election While 
on Certain Federal Property), to provide consistency in the use of 
capitalization;
    (7) Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses)), to provide stylistic consistency in how subdivisions are 
designated, make clerical changes to some controlled substances 
references in the Drug Conversion Tables at Application Note 8(D) and 
the Typical Weight Per Unit Table at Application Note 9, and correct a 
reference to a statute in the Background commentary;
    (8) the Background Commentary to Sec.  2D1.2 (Drug Offenses 
Occurring Near Protected Locations or Involving Underage or Pregnant 
Individuals; Attempt or Conspiracy), to correct a reference to a 
statute;
    (9) the Commentary to Sec.  2D1.5 (Continuing Criminal Enterprise; 
Attempt or Conspiracy), to add headings to application notes and 
correct a reference to a statutory provision;
    (10) Sec.  2E2.1 (Making or Financing an Extortionate Extension of 
Credit; Collecting an Extension of Credit by Extortionate Means), to 
provide stylistic consistency in how subdivisions are designated and 
add headings to the application notes in the Commentary;
    (11) Sec.  2E3.1 (Gambling Offenses; Animal Fighting Offenses), to 
provide stylistic consistency in how subdivisions are designated and 
correct a reference to a statutory provision in the Commentary;
    (12) Sec.  2H2.1 (Obstructing an Election or Registration), to 
provide stylistic consistency in how subdivisions are designated and 
add a heading to the application note in the Commentary;
    (13) Sec.  2K1.4 (Arson; Property Damage by Use of Explosives), to 
provide stylistic consistency in how subdivisions are designated;
    (14) the Commentary to Sec.  2K2.4 (Use of Firearm, Armor-Piercing 
Ammunition, or Explosive During or in Relation to Certain Crimes), to 
correct some typographical errors;
    (15) the Commentary to Sec.  2S1.1 (Laundering of Monetary 
Instruments; Engaging in Monetary Transactions in Property Derived from 
Unlawful Activity), to provide consistency in the use of capitalization 
and how subdivisions are designated;
    (16) Sec.  3B1.1 (Aggravating Role), to provide stylistic 
consistency in how subdivisions are designated, add headings to the 
application notes in the Commentary, and correct a typographical error;
    (17) the Commentary to Sec.  3D1.1 (Procedure for Determining 
Offense Level on Multiple Counts), to add a heading to an application 
note;
    (18) Sec.  4A1.1 (Criminal History Category), to provide stylistic 
consistency in how subdivisions are designated and correct the headings 
of the application notes in the Commentary;
    (19) Sec.  4A1.2 (Definitions and Instructions for Computing 
Criminal History), to provide stylistic consistency in how subdivisions 
are designated;
    (20) the Commentary to Sec.  5G1.2 (Sentencing on Multiple Counts 
of Conviction), to provide stylistic consistency in how subdivisions 
are designated, fix typographical errors in the Commentary, and update 
an example that references 18 U.S.C. 924(c) (which was amended by the 
First Step Act of 2018, Pub. L. 115-391 (2018));
    (21) the Commentary to Sec.  5K1.1 (Substantial Assistance to 
Authorities (Policy Statement)), to add headings to application notes 
and correct a typographical error;
    (22) Sec.  5K2.0 (Grounds for Departure (Policy Statement)), to 
correct a typographical error and provide stylistic consistency in how 
subdivisions are designated;
    (23) Sec.  5E1.2 (Fines for Individual Defendants), to provide 
stylistic consistency in how subdivisions are designated;
    (24) Sec.  5F1.6 (Denial of Federal Benefits to Drug Traffickers 
and Possessors), to provide consistency in the use of capitalization 
and add a heading to an application note in the Commentary;
    (25) Sec.  6A1.5 (Crime Victims' Rights (Policy Statement)), to 
provide consistency in the use of capitalization; and
    (26) the Commentary to Sec.  8B2.1 (Effective Compliance and Ethics 
Program), to provide consistency in the use of capitalization.

(A) Technical and Conforming Changes Relating to Sec.  4C1.1

    Proposed Amendment: Section 4C1.1(a) is amended--
    in paragraph (9) by striking ``and'';
    by striking paragraph (10) as follows:
    ``(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;'';
    and by inserting at the end the following new paragraphs (10) and 
(11):
    ``(10) the defendant did not receive an adjustment under Sec.  
3B1.1 (Aggravating Role); and
    (11) the defendant was not engaged in a continuing criminal 
enterprise, as defined in 21 U.S.C. 848;''.
    Section 1B1.1(a)(6) is amended by striking ``Part B of Chapter 
Four'' and inserting ``Parts B and C of Chapter Four''.
    Chapter Two is amended in the Introductory Commentary by striking 
``Chapter Four, Part B (Career Offenders and Criminal Livelihood)'' and 
inserting ``Chapter Four, Parts B (Career Offenders and Criminal 
Livelihood) and C (Adjustment for Certain Zero-Point Offenders)''.
    The Commentary to Sec.  3D1.1 captioned ``Background'' is amended 
by striking ``Chapter Four, Part B (Career Offenders and Criminal 
Livelihood)'' and inserting ``Chapter Four, Parts B (Career Offenders 
and Criminal Livelihood) and C (Adjustment for Certain Zero-Point 
Offenders)''.
    The Commentary to Sec.  3D1.5 is amended by striking ``Chapter 
Four, Part B (Career Offenders and Criminal Livelihood)'' and inserting 
``Chapter Four, Parts B (Career Offenders and Criminal Livelihood) and 
C (Adjustment for Certain Zero-Point Offenders)''.

(B) Additional Technical and Clerical Changes

    Proposed Amendment: The Commentary to Sec.  1B1.1 captioned 
``Application Notes'' is amended--
    in Note 1 by inserting at the beginning the following new heading: 
``Frequently Used Terms Defined.--'';
    in Note 1(F) by striking ``subdivision'' and inserting ``clause'';
    in Note 2 by inserting at the beginning the following new heading: 
``Definition of Additional Terms.--''; and by striking ``case by case 
basis'' and inserting ``case-by-case basis'';
    in Note 3 by inserting at the beginning the following new heading: 
``List of Statutory Provisions.--'';
    in Note 4 by inserting at the beginning the following new heading:

[[Page 89164]]

``Cumulative Application of Multiple Adjustments.--'';
    in Note 4(A) by striking ``subdivisions'' and inserting 
``subparagraphs'';
    and in Note 5 by inserting at the beginning the following new 
heading: ``Two or More Guideline Provisions Equally Applicable.--''.
    Section 2B1.1(b)(7) is amended by striking ``Federal'' and 
inserting ``federal''; and by striking ``Government'' both places such 
term appears and inserting ``government''.
    Section 2B1.1(b)(17) is amended by striking ``subdivision'' both 
places such term appears and inserting ``subparagraph''.
    Section 2B1.1(b)(19)(B) is amended by striking ``subdivision'' and 
inserting ``subparagraph''.
    Section 2B1.1(c) is amended by striking ``subdivision'' and 
inserting ``paragraph''.
    The Commentary to 2B1.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking '' `Equity securities' '' and inserting `` 
`Equity security' '';
    in Note 3(A) by striking ``subdivision'' and inserting 
``subparagraph'';
    in Note 3(A)(v) by striking ``subdivisions'' and inserting 
``subclauses'';
    in Note 3(F) by striking ``subdivision (A)'' and inserting 
``subparagraph (A)'';
    in Note 3(F)(i) by striking ``this subdivision'' and inserting 
``this clause'';
    in Note 3(F)(viii) by striking ``a Federal health care offense'' 
and inserting ``a federal health care offense''; and by striking 
``Government health care program'' both places such term appears and 
inserting ``government health care program'';
    and in Note 4(C)(ii) by striking ``subdivision'' and inserting 
``subparagraph''.
    The Commentary to Sec.  2B6.1 captioned ``Application Notes'' is 
amended in Note 1 by striking ``United State Code'' both places such 
term appears and inserting ``United States Code''; and by striking 
``subdivision'' and inserting ``subparagraph''.
    Section 2B3.1(b)(3) is amended by striking ``subdivisions'' both 
places such term appears and inserting ``subparagraphs''; and by 
striking ``cumulative adjustments from (2) and (3)'' and inserting 
``cumulative adjustments from application of paragraphs (2) and (3)''.
    The Commentary to Sec.  2B3.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by inserting at the beginning the following new heading: 
``Definitions.--'';
    in Note 2 by inserting at the beginning the following new heading: 
``Dangerous Weapon.--'';
    in Note 3 by inserting at the beginning the following new heading: 
``Definition of `Loss'.--'';
    in Note 4 by inserting at the beginning the following new heading: 
``Cumulative Application of Subsections (b)(2) and (b)(3).--'';
    in Note 5 by inserting at the beginning the following new heading: 
``Upward Departure Provision.--'';
    and in Note 6 by inserting at the beginning the following new 
heading: `` `A Threat of Death'.--''.
    Section 2B3.2(b)(3)(B) is amended by striking ``subdivisions'' and 
inserting ``clauses''.
    Section 2B3.2(b)(4) is amended by striking ``subdivisions'' both 
places such term appears and inserting ``subparagraphs''; and by 
striking ``cumulative adjustments from (3) and (4)'' and inserting 
``cumulative adjustments from application of paragraphs (3) and (4)''.
    The Commentary to Sec.  2B3.2 captioned ``Application Notes'' is 
amended--
    in Note 2 by inserting at the beginning the following new heading: 
``Threat of Injury or Serious Damage.--'';
    in Note 3 by inserting at the beginning the following new heading: 
``Offenses Involving Public Officials and Other Extortion Offenses.--
'';
    in Note 4 by inserting at the beginning the following new heading: 
``Cumulative Application of Subsections (b)(3) and (b)(4).--'';
    in Note 5 by inserting at the beginning the following new heading: 
``Definition of `Loss to the Victim'.--'';
    in Note 6 by inserting at the beginning the following new heading: 
``Defendant's Preparation or Ability to Carry Out a Threat.--'';
    in Note 7 by inserting at the beginning the following new heading: 
``Upward Departure Based on Threat of Death or Serious Bodily Injury to 
Numerous Victims.--'';
    and in Note 8 by inserting at the beginning the following new 
heading: ``Upward Departure Based on Organized Criminal Activity or 
Threat to Family Member of Victim.--''.
    Section 2C1.8(b)(3) is amended by striking ``Federal'' and 
inserting ``federal''.
    The Commentary to Sec.  2C1.8 captioned ``Application Notes'' is 
amended in Note 2 by striking ``Federal'' both places such term appears 
and inserting ``federal''; and by striking ``Presidential'' and 
inserting ``presidential''.
    Section 2D1.1(b)(14)(C)(ii) is amended by striking ``subdivision'' 
and inserting ``subparagraph''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended--
    in Note 8(D)--
    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 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'';
    and inserting the following:
    ``1 gm of 1-Piperidinocyclohexanecarbonitrile (PCC) = 680 gm
    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 4-Bromo-2,5-Dimethoxyamphetamine (DOB) = 2.5 kg'';
    and under the heading relating to Schedule III Substances (except 
ketamine), by striking ``1 unit of a Schedule III Substance'' and 
inserting ``1 unit of a Schedule III Substance (except Ketamine)'';
    and in Note 9, under the heading relating to Hallucinogens, by 
striking the following:
    ``2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg
    MDA 250 mg
    MDMA 250 mg
    Mescaline 500 mg
    PCP* 5 mg'';
    and inserting the following:
    ``2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg
    3,4-Methylenedioxyamphetamine (MDA) 250 mg
    3,4-Methylenedioxymethamphetamine (MDMA) 250 mg
    Mescaline 500 mg
    Phencyclidine (PCP)* 5 mg''.
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
by striking ``Section 6453 of the Anti-Drug Abuse Act of 1988'' and 
inserting ``section 6453 of Public Law 100-690''.

[[Page 89165]]

    The Commentary to Sec.  2D1.2 captioned ``Background'' is amended 
by striking ``Section 6454 of the Anti-Drug Abuse Act of 1988'' and 
inserting ``section 6454 of Public Law 100-690''.
    The Commentary to Sec.  2D1.5 captioned ``Application Notes'' is 
amended--
    in Note 1 by inserting at the beginning the following new heading: 
``Inapplicability of Chapter Three Adjustment.--'';
    in Note 2 by inserting at the beginning the following new heading: 
``Upward Departure Provision.--'';
    in Note 3 by inserting at the beginning the following new heading: 
`` `Continuing Series of Violations'.--'';
    and in Note 4 by inserting at the beginning the following new 
heading: ``Multiple Counts.--''.
    The Commentary to Sec.  2D1.5 captioned ``Background'' is amended 
by striking ``Title 21 U.S.C. 848'' and inserting ``Section 848 of 
title 21, United States Code,''.
    Section 2E2.1(b)(2) is amended by striking ``subdivisions'' both 
places such term appears and inserting ``subparagraphs''; and by 
striking ``the combined increase from (1) and (2)'' and inserting ``the 
combined increase from application of paragraphs (1) and (2)''.
    The Commentary to Sec.  2E2.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by inserting at the beginning the following new heading: 
``Definitions.--'';
    and in Note 2 by inserting at the beginning the following new 
heading: ``Interpretation of Specific Offense Characteristics.--''.
    Section 2E3.1(a)(1) is amended by striking ``subdivision'' and 
inserting ``paragraph''.
    The Commentary to Sec.  2E3.1 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Sec.  2156(g)'' and inserting ``Sec.  
2156(f)''.
    Section 2H2.1(a)(2) is amended by striking ``in (3)'' and inserting 
``in paragraph (3)''.
    The Commentary to Sec.  2H2.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting at the beginning the following new 
heading: ``Upward Departure Provision.--''.
    Section 2K1.4(b)(2) is amended by striking ``under (a)(4)'' and 
inserting ``under subsection (a)(4)''.
    The Commentary to Sec.  2K2.4 captioned ``Application Notes'' is 
amended in Note 1 by striking ``United State Code'' both place such 
term appears and inserting ``United States Code''.
    The Commentary to Sec.  2S1.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking ``Federal'' and inserting ``federal'';
    and in Note 4(B)(vi) by striking ``subdivisions'' and inserting 
``clauses''.
    Section 3B1.1(c) is amended by striking ``in (a) or (b)'' and 
inserting ``in subsection (a) or (b)''.
    The Commentary to Sec.  3B1.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by inserting at the beginning the following new heading: 
``Definition of `Participant'.--'';
    in Note 2 by inserting at the beginning the following new heading: 
``Organizer, Leader, Manager, or Supervisor of One or More 
Participants.--'';
    in Note 3 by inserting at the beginning the following new heading: 
`` `Otherwise Extensive'.--'';
    and in Note 4 by inserting at the beginning the following new 
heading: ``Factors to Consider.--''; and by striking ``decision 
making'' and inserting ``decision-making''.
    The Commentary to Sec.  3D1.1 captioned ``Application Notes'' is 
amended in Note 2 by inserting at the beginning the following new 
heading: ``Application of Subsection (b).--''.
    Section 4A1.1(b) is amended by striking ``in (a)'' and inserting 
``in subsection (a)''.
    Section 4A1.1(c) is amended by striking ``in (a) or (b)'' and 
inserting ``in subsection (a) or (b)''.
    Section 4A1.1(d) is amended by striking ``under (a), (b), or (c)'' 
and inserting ``under subsection (a), (b), or (c)''.
    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended--
    in Note 1, in the heading, by striking ``Sec.  4A1.1(a).'' and 
inserting ``Sec.  4A1.1(a).--'';
    in Note 2, in the heading, by striking ``Sec.  4A1.1(b).'' and 
inserting ``Sec.  4A1.1(b).--'';
    in Note 3, in the heading, by striking ``Sec.  4A1.1(c).'' and 
inserting ``Sec.  4A1.1(c).--'';
    in Note 4, in the heading, by striking ``Sec.  4A1.1(d).'' and 
inserting ``Sec.  4A1.1(d).--'';
    and in Note 5, in the heading, by striking ``Sec.  4A1.1(e).'' and 
inserting ``Sec.  4A1.1(e).--''.
    Section 4A1.2(a)(2) is amended by striking ``by (A) or (B)'' and 
inserting ``by subparagraph (A) or (B)''.
    Section 4A1.2(d)(2)(B) is amended by striking ``in (A)'' and 
inserting ``in subparagraph (A)''.
    Section 5E1.2(c)(2) is amended by striking ``in (4)'' and inserting 
``in paragraph (4)''.
    Section 5F1.6 is amended by striking ``Federal'' and inserting 
``federal''.
    The Commentary to 5F1.6 captioned ``Application Notes'' is amended 
in Note 1 by inserting at the beginning the following new heading: 
``Definition of `Federal Benefit'.--''.
    The Commentary to Sec.  5G1.2 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking ``See Note 3'' and inserting ``See 
Application Note 3''.
    in Note 2(A) by striking ``subdivision'' and inserting 
``subparagraph'';
    in Note 4(B)(i) by striking ``a drug trafficking offense (5 year 
mandatory minimum), and one count of violating 21 U.S.C. 841(b)(1)(C) 
(20 year statutory maximum)'' and inserting ``a drug trafficking 
offense (5-year mandatory minimum), and one count of violating 21 
U.S.C. 841(b)(1)(C) (20-year statutory maximum)'';
    in Note 4(B)(ii) by striking ``one count of 18 U.S.C. 924(c) (5 
year mandatory minimum), and one count of violating 21 U.S.C. 
841(b)(1)(C) (20 year statutory maximum)'' and inserting ``one count of 
18 U.S.C. 924(c) (5-year mandatory minimum), and one count of violating 
21 U.S.C. 841(b)(1)(C) (20-year statutory maximum)'';
    and in Note 4(B)(iii) by striking the following:
    ``The defendant is convicted of two counts of 18 U.S.C. 924(c) (5 
year mandatory minimum on first count, 25 year mandatory minimum on 
second count) and one count of violating 18 U.S.C. 113(a)(3) (10 year 
statutory maximum). Applying Sec.  4B1.1(c), the court determines that 
a sentence of 460 months is appropriate (applicable guideline range of 
460-485 months). The court then imposes (I) a sentence of 60 months on 
the first 18 U.S.C. 924(c) count; (II) a sentence of 300 months on the 
second 18 U.S.C. 924(c) count; and (III) a sentence of 100 months on 
the 18 U.S.C. 113(a)(3) count. The sentence on each count is imposed to 
run consecutively to the other counts.'';
    and inserting the following:
    ``The defendant is convicted of two counts of 18 U.S.C. 924(c) (5-
year mandatory minimum on each count) and one count of violating 18 
U.S.C. 113(a)(3) (10-year statutory maximum). Applying Sec.  4B1.1(c), 
the court determines that a sentence of 262 months is appropriate 
(applicable guideline range of 262-327 months). The court then imposes 
(I) a sentence of 82 months on the first 18 U.S.C. 924(c) count; (II) a 
sentence of 60 months on the second 18 U.S.C. 924(c) count; and (III) a 
sentence of 120 months on the 18 U.S.C. 113(a)(3) count. The sentence 
on each count is imposed to run consecutively to the other counts.''.
    The Commentary to Sec.  5K1.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by inserting at the beginning the following new heading: 
``Sentence Below Statutorily Required Minimum Sentence.--'';
    in Note 2 by inserting at the beginning the following new heading: 
``Interaction

[[Page 89166]]

with Acceptance of Responsibility Reduction.--'';
    and in Note 3 by inserting at the beginning the following new 
heading: ``Government's Evaluation of Extent of Defendant's 
Assistance.--''.
    The Commentary to Sec.  5K1.1 captioned ``Background'' is amended 
by striking ``in camera'' and inserting ``in camera''.
    Section 5K2.0(e) is amended by striking ``in camera'' and inserting 
``in camera''.
    The Commentary to Sec.  5K2.0 captioned ``Application Notes'' is 
amended in Note 3(C) by striking ``subdivision'' and inserting 
``subparagraph''.
    Section 6A1.5 is amended by striking ``Federal'' and inserting 
``federal''.
    The Commentary to Sec.  8B2.1 captioned ``Application Notes'' is 
amended in Note 4(A) by striking ``any Federal, State,'' and inserting 
``any federal, state,''.

7. Simplification of Three-Step Process

    Synopsis of Proposed Amendment: In September 2023, the Commission 
identified as one of its policy priorities for the amendment cycle 
ending May 1, 2024, the ``exploration of ways to simplify the 
guidelines and possible consideration of amendments that might be 
appropriate.'' U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 88 
FR 60536 (Sept. 1, 2023). Consistent with this priority, the Commission 
is publishing these issues for comment and proposed amendment to inform 
the Commission's consideration of these issues.

The Three-Step Process in the Guidelines Manual

    The Sentencing Reform Act of 1984 (Title II of the Comprehensive 
Crime Control Act of 1984) (the ``Act'') provides for the development 
of guidelines that will further the basic purposes of criminal 
sentencing: deterrence, incapacitation, retribution, and 
rehabilitation. The Act delegates broad authority to the Commission to 
review and rationalize the federal sentencing process. The Act contains 
detailed instructions as to how this determination should be made, the 
most important of which directs the Commission to establish categories 
of offenses and categories of defendants for use in prescribing 
guideline ranges that specify an appropriate sentence and to consider 
whether, and to what extent, specific offense-based and offender-based 
factors are relevant to sentencing. See 28 U.S.C. 994(c) and (d). In 
relation to the establishment of categories of defendants, the Act 
placed several limitations upon the Commission's ability to consider 
certain personal and individual characteristics in establishing the 
guidelines and policy statements. See 28 U.S.C. 994(d), (e).
    In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court 
held that the portion of 18 U.S.C. 3553 making the guidelines mandatory 
was unconstitutional. The Court has further explained that the 
guideline range, which reflects the defendant's criminal conduct and 
the defendant's criminal history, should continue to be ``the starting 
point and the initial benchmark'' in sentencing proceedings. See Gall 
v. United States, 552 U.S. 38, 49 (2007); see also Peugh v. United 
States, 569 U.S. 530 (2013) (noting that ``the post-Booker federal 
sentencing system adopted procedural measures that make the guidelines 
the `lodestone' of sentencing''). After determining the kinds of 
sentence and guideline range, however, the court must also fully 
consider the factors in 18 U.S.C. 3553(a), including, among other 
factors, ``the nature and circumstances of the offense and the history 
and characteristics of the defendant,'' to determine a sentence that is 
sufficient but not greater than necessary.
    In the wake of Booker and other cases, Sec.  1B1.1 (Application 
Instructions) sets forth the instructions for determining the 
applicable guideline range and type of sentence to impose, in 
accordance with the Guidelines Manual. It sets forth a three-step 
process for determining the sentence to be imposed, which is reflected 
in the three main subdivisions of Sec.  1B1.1 (subsections (a) through 
(c)). The three-step process can be summarized as follows: (1) the 
court calculates the applicable guideline range and determines the 
sentencing requirements and options related to probation, imprisonment, 
supervision conditions, fines, and restitution; (2) the court considers 
policy statements and guideline commentary relating to departures and 
specific personal characteristics that might warrant consideration in 
imposing the sentence; and (3) the court considers the applicable 
factors in 18 U.S.C. 3553(a) in deciding what sentence to impose 
(whether within the applicable guideline range, or whether as a 
departure or as a variance (or as both)).
    The first step in the three-step process, as set forth in Sec.  
1B1.1(a), requires the court to calculate the applicable guideline 
range and determine the kind of sentence by applying Chapters Two 
(Offense Conduct), Three (Adjustments), and Four (Criminal History and 
Criminal Livelihood), and Parts B through G of Chapter Five 
(Determining the Sentence).
    The second step in the three-step process, as set forth in Sec.  
1B1.1(b), requires the court to consider ``Parts H and K of Chapter 
Five, Specific Offender Characteristics and Departures, and any other 
policy statements or commentary in the guidelines that might warrant 
consideration in imposing sentence.'' Authorized grounds for departures 
based on various circumstances of the offense, specific personal 
characteristics of the offender, and certain procedural history of the 
case are described throughout the Guidelines Manual: several Chapter 
Two offense guidelines and Chapter Eight organizational guidelines 
contain departure provisions within their corresponding Commentary; 
grounds for departure based on criminal history are provided in Chapter 
Four; and Chapter Five sets forth various policy statements with 
additional grounds for departure. Chapter Five, Part H, addresses the 
relevance of certain specific personal characteristics in sentencing by 
allocating them into three general categories. The first category 
includes specific personal characteristics that Congress has prohibited 
from consideration or that the Commission has determined should be 
prohibited. See, e.g., USSG Sec.  5H1.10 (Race, Sex, National Origin, 
Creed, Religion, and Socio-Economic Status (Policy Statement)). The 
second category includes specific personal characteristics that 
Congress directed the Commission to ensure are reflected in the 
guidelines and policy statements as generally inappropriate in 
recommending a term of imprisonment or length of a term of 
imprisonment. See, e.g., Sec. Sec.  5H1.2 (Employment Record); 5H1.6 
(Family Ties and Responsibilities (Policy Statement)). The third 
category includes specific personal characteristics that Congress 
directed the Commission to consider in the guidelines only to the 
extent that they have relevance to sentencing. See, e.g., USSG 
Sec. Sec.  5H1.1 (Age (Policy Statement)); 5H1.3 (Mental and Emotional 
Conditions (Policy Statement)).
    The third step in the three-step process, as set forth in Sec.  
1B1.1(c), requires the court to ``consider the applicable factors in 18 
U.S.C. 3553(a) taken as a whole.'' Specifically, section 3553(a) 
provides:
    The court shall impose a sentence sufficient, but not greater than 
necessary, to comply with the purposes set forth in paragraph (2) of 
this subsection. The court, in determining the particular sentence to 
be imposed, shall consider--

[[Page 89167]]

    (1) the nature and circumstances of the offense and the history and 
characteristics of the defendant;
    (2) the need for the sentence imposed--
    (A) to reflect the seriousness of the offense, to promote respect 
for the law, and to provide just punishment for the offense;
    (B) to afford adequate deterrence to criminal conduct;
    (C) to protect the public from further crimes of the defendant; and
    (D) to provide the defendant with needed educational or vocational 
training, medical care, or other correctional treatment in the most 
effective manner;
    (3) the kinds of sentences available;
    (4) the kinds of sentence and the sentencing range established 
for--
    (A) the applicable category of offense committed by the applicable 
category of defendant as set forth in the guidelines--
    (i) issued by the Sentencing Commission pursuant to section 
994(a)(1) of title 28, United States Code, subject to any amendments 
made to such guidelines by act of Congress (regardless of whether such 
amendments have yet to be incorporated by the Sentencing Commission 
into amendments issued under section 994(p) of title 28); and
    (ii) that, except as provided in section 3742(g), are in effect on 
the date the defendant is sentenced; or
    (B) in the case of a violation of probation or supervised release, 
the applicable guidelines or policy statements issued by the Sentencing 
Commission pursuant to section 994(a)(3) of title 28, United States 
Code, taking into account any amendments made to such guidelines or 
policy statements by act of Congress (regardless of whether such 
amendments have yet to be incorporated by the Sentencing Commission 
into amendments issued under section 994(p) of title 28);
    (5) any pertinent policy statement--
    (A) issued by the Sentencing Commission pursuant to section 
994(a)(2) of title 28, United States Code, subject to any amendments 
made to such policy statement by act of Congress (regardless of whether 
such amendments have yet to be incorporated by the Sentencing 
Commission into amendments issued under section 994(p) of title 28); 
and
    (B) that, except as provided in section 3742(g), is in effect on 
the date the defendant is sentenced.
    (6) the need to avoid unwarranted sentence disparities among 
defendants with similar records who have been found guilty of similar 
conduct; and
    (7) the need to provide restitution to any victims of the offense.
    18 U.S.C. 3553(a).
    Post-Booker, courts have been using departures provided under step 
two of the three-step process with less frequency in favor of 
variances. Given this trend, the Commission has identified the 
reconceptualization of the three-step process as one potential method 
of simplifying the guidelines.

Proposed Amendment

    The proposed amendment contains two parts. Part A contains issues 
for comment on whether any changes should be made to the Guidelines 
Manual relating to the three-step process set forth in Sec.  1B1.1 and 
the use of departures and policy statements relating to specific 
personal characteristics. Part B contains a proposed amendment that 
would restructure the Guidelines Manual to simplify both (1) the 
current three-step process utilized in determining a sentence that is 
``sufficient, but not greater than necessary,'' and (2) existing 
guidance in the Guidelines Manual regarding a court's consideration of 
the individual circumstances of the defendant as well as certain 
offense characteristics. The proposed amendment set forth in Part B 
also seeks to better address the distinction between the statutory 
limitations on the Commission's ability to consider certain offense 
characteristics and individual circumstances in recommending a term of 
imprisonment or length of imprisonment, and the requirement that the 
court consider a broad range of individual and offense characteristics 
in determining an appropriate sentence pursuant to 18 U.S.C. 3553(a).
    The proposed amendment would make changes to better align the 
requirements placed on the court and acknowledge the growing shift away 
from the use of departures provided for within the Guidelines Manual in 
the wake of Booker and subsequent decisions. See United States v. 
Booker, 543 U.S. 220 (2005); Irizarry v. United States, 553 U.S. 708 
(2008) (holding that Rule 32(h) of the Federal Rules of Criminal 
Procedure, which requires a court to give ``reasonable notice'' that 
the court is contemplating a ``departure'' from the recommended 
guideline range on a ground not identified for departure in the 
presentence report or in a party's prehearing submission, does not 
apply to a ``variance'' from a recommended guideline range).
    The proposed amendment would revise Chapter One in multiple ways. 
First, it would delete the ``Original Introduction to the Guidelines 
Manual'' currently contained in Chapter One, Part A. This introduction 
would be published as a historical background in Appendix B (Selected 
Sentencing Statutes) of the Guidelines Manual. Second, the proposed 
amendment would revise the application instructions provided in Sec.  
1B1.1 to reflect the simplification of the three-step process into two 
steps. Additionally, the definition of ``departures'' is removed from 
the application notes to Sec.  1B1.1, and the Background Commentary is 
revised accordingly.
    Consistent with the revised approach, the proposed amendment would 
reclassify most ``departures'' currently provided throughout the 
Guidelines Manual. Under the new approach, current departure provisions 
would be retained in more generalized language. Instead of being 
identified as departures, they would be generally reclassified as 
``Additional Considerations'' that may be relevant to the court's 
determination under 18 U.S.C. 3553(a). Changes would be made throughout 
the Guidelines Manual by revising the departure provisions currently 
contained in commentary to various guidelines. Such provisions would be 
maintained in a new section to the commentary titled ``Additional 
Considerations'' and are intended to retain, to the extent possible, 
the guidance and considerations provided by the deleted provisions and 
to be neutral as to the scope and content of the conduct covered.
    The proposed amendment would also retitle Chapter Five to reflect 
its focus on the rules pertaining to the calculation of the guideline 
range, specifically to better reflect the chapter's purpose in the 
introductory commentary noting that ``a sentence is within the 
guidelines if it complies with each applicable section of this 
chapter.'' All current provisions contained in Chapter Five, Part H 
(Specific Offender Characteristics) would be deleted. Similarly, most 
of the provisions in Chapter Five, Part K (Departures), would be 
deleted. Only the provisions pertaining to substantial assistance would 
be retained, while the provision pertaining to early disposition 
programs would be moved to a new Part F in Chapter Three.
    The proposed amendment would also create a new Chapter Six 
(renumbering existing chapters accordingly) to facilitate the court's 
consideration of 18 U.S.C. 3553(a). The new chapter is divided into 
three guidelines. The first generally reflects the court's 
consideration of the section 3553(a) factors and specifically 
references those

[[Page 89168]]

factors. The second and third guidelines compile factors which 
generally are not considered in the calculation of the guideline range 
in Chapters Two through Five, but which may be relevant to the court's 
consideration of ``the nature and circumstances of the offense and the 
history and characteristics of the defendant'' pursuant to 18 U.S.C. 
3553(a)(1). These factors set forth reasons from former Parts H and K 
of Chapter Five, including factors that are generally not considered in 
the calculation of the guideline range in Chapters Two through Five, 
but which courts regularly consider pursuant to section 3553(a). While 
the list of factors is provided to both facilitate the court's 
consideration and to assist with the collection of data by the 
Commission, the proposed amendment includes language recognizing that 
the nature, extent, and significance of specific personal 
characteristics can involve a range of considerations that are 
difficult or impossible to quantify for purposes of establishing the 
guideline ranges. As such, the new chapter notes that the factors 
identified are not weighted in any manner or intended to be 
comprehensive or to otherwise infringe upon the court's unique position 
to determine the most appropriate sentence.
    The issues for comment set forth below are informed by the proposed 
amendment contained in Part B. In addition to receiving input from the 
issues for comment below, the Commission anticipates both general 
comment on Part B of the proposed amendment and welcomes line edits on 
the specific changes proposed.

(A) Issues for Comment

    1. Part B of the proposed amendment would reconceptualize and 
simplify the three-step process, as set forth in Sec.  1B1.1 
(Application Instructions), to streamline the application of the 
Guidelines Manual and to better reflect the interaction between 18 
U.S.C. 3553(a) and the guidelines. It would do so by removing the 
second step in the three-step process, as set forth in Sec.  1B1.1(b), 
requiring the court to consider the departure provisions set forth 
throughout the Guidelines Manual and the policy statements contained in 
Chapter Five, Part H, relating to specific personal characteristics. 
The Guidelines Manual currently contains more than two hundred 
departure provisions in Chapter Five, Part K, and the commentary to 
various guidelines elsewhere in the Manual. Chapter Five, Part H, 
contains twelve policy statements addressing the relevance of certain 
specific personal characteristics in sentencing. The Commission invites 
general comment on whether the Commission should reconceptualize and 
simplify the three-step process in this manner. If so, what, if any, 
revisions would be appropriate to further the Commission's goal to 
reconceptualize and simplify the three-step process? If not, are there 
any other approaches that the Commission should consider to 
reconceptualize and simplify the three-step process, and if so, what 
are they?
    2. The Commission seeks comment on whether revising the three-step 
process either in general or as implemented in any particular provision 
in Part B of the proposed amendment, is consistent with 28 U.S.C. 994 
and 995 and all other provisions of federal law. In particular, the 
Commission seeks comment regarding whether providing guidance to the 
courts regarding consideration of the other factors in 18 U.S.C. 
3553(a), including providing examples of factors that may be relevant 
to the court's determination of the appropriate sentence, is consistent 
with the Commission's authority. Similarly, the Commission seeks 
comment on whether revising the three-step process is consistent with 
other congressional directives to the Commission.
    3. The proposed amendment contained in Part B would continue to 
account for factors contained in most of the two hundred departure 
provisions in Chapter Five, Parts H and K, and the commentary to 
various guidelines in different ways. If the Commission were to remove 
the second step in the three-step process, as proposed in Part B, 
should the Commission continue to account for these factors? If so, how 
and why? Should the Commission account for these factors in the manner 
set forth in Part B of the proposed amendment? If not, should the 
Commission consider a different approach? For example, should the 
Commission remove some or all of the specific factors and rely on a 
more general policy statement referencing the sentencing factors in 18 
U.S.C.Sec.  3553(a)? What should such a policy statement specifically 
provide? What factors should be retained or removed, and why?
    4. The proposed amendment would create a new Chapter Six (and 
renumber existing chapters accordingly) that consolidate in three 
policy statements many of the factors in contained in Chapter Five, 
Parts H and K. The new Chapter Six set forth in Part B of the proposed 
amendment would facilitate the court's consideration of 18 U.S.C. 
3553(a). The new chapter is divided into three guidelines, Sec.  6A1.1 
through Sec.  6A1.3. New Sec.  6A1.1 generally reflects the court's 
consideration of the section 3553(a) factors and specifically 
references those factors. New Sec. Sec.  6A1.2 and 6A1.3 compile 
factors which generally are not considered in the calculation of the 
guideline range in Chapters Two through Five, but which may be relevant 
to the court's consideration of ``the nature and circumstances of the 
offense and the history and characteristics of the defendant'' pursuant 
to 18 U.S.C. 3553(a)(1). New Sec.  6A1.2 enumerates certain personal 
characteristics, while Sec.  6A1.3 provides a list of offense 
characteristics along with some guidance for consideration of the 
court. The Commission does not intend to expand the list of personal 
and offense characteristics beyond those set forth in the proposed 
amendment. The Commission does, however, seek comment on whether the 
policy statement compiling factors relating to personal characteristics 
in Sec.  6A1.2 should include more specific guidance to the court 
regarding when and under what types of circumstances any such 
characteristic may be relevant to the court's sentencing determination 
in a manner that is more similar to new Sec.  6A1.3. Similarly, should 
the Commission provide different guidance regarding the offense 
characteristics in Sec.  6A1.3? If so, what guidance should the 
Commission provide for both personal characteristics and offense 
characteristics, and why? If not, how should the Commission lay out 
such characteristics and why?
    5. In addition to new Chapter Six, Part B of the proposed amendment 
would reclassify most ``departures'' currently provided throughout the 
Guidelines Manual. Instead of being identified as departures, they 
would be generally reclassified in the corresponding Chapter Two 
provisions as ``Additional Offense Specific Considerations'' that may 
be relevant to the court's determination under 18 U.S.C. 3553(a). Under 
the new approach, the current departure provisions would be retained in 
more generalized language but are intended to be neutral as to the 
scope and content of the conduct covered by the existing departures. 
The Commission seeks comment on whether some or all of the factors 
contained in the commentary to various guidelines should be 
consolidated in the new Chapter Six. If so, which factors should be 
moved into new Chapter Six, and why? Which factors should be retained 
in their current guideline or policy statement, and why?
    The Commission further seeks comment regarding whether any 
revisions made in reclassifying

[[Page 89169]]

departures as ``Additional Considerations'' unintentionally remove 
guidance and considerations provided by the deleted provisions or 
unintentionally expand or contract the scope and content of those 
provisions.
    6. If the Commission were to remove or limit the departure 
provisions in the Guidelines Manual, how should the Commission continue 
to account for sentencing considerations for substantial assistance to 
authorities and refusal to assist authorities, currently provided for 
in Sec. Sec.  5K1.1 (Substantial Assistance to Authorities (Policy 
Statement)) and 5K1.2 (Refusal to Assist (Policy Statement))?
    7. If the Commission were to remove or limit the departure 
provisions in the Guidelines Manual, how should the Commission continue 
to account for sentencing considerations relating to early disposition 
programs, currently provided for in Sec.  5K3.1 (Early Disposition 
Programs (Policy Statement))?
    8. The Commission seeks general comment on whether the proposed 
changes to the Guidelines Manual, as set forth in Part B of the 
proposed amendment, would make it easier for courts to report the 
reasons for their sentences and allow possible improvements in data 
collection on all of the factors courts consider when imposing a 
sentence consistent with 18 U.S.C. 3553(a). What, if any, changes to 
the proposed amendment would enhance such reporting and data collection 
efforts? What changes should the Commission consider, in conjunction 
with the Judicial Conference of the United States, to the Statement of 
Reasons form if the proposed amendment is adopted?

(B) Proposed Amendment

    Chapter One is amended by striking Part A as follows:

``Part A--Introduction and Authority

Introductory Commentary

    Subparts 1 and 2 of this Part provide an introduction to the 
Guidelines Manual describing the historical development and evolution 
of the federal sentencing guidelines. Subpart 1 sets forth the original 
introduction to the Guidelines Manual as it first appeared in 1987, 
with the inclusion of amendments made occasionally thereto between 1987 
and 2000. The original introduction, as so amended, explained a number 
of policy decisions made by the United States Sentencing Commission 
(`Commission') when it promulgated the initial set of guidelines and 
therefore provides a useful reference for contextual and historical 
purposes. Subpart 2 further describes the evolution of the federal 
sentencing guidelines after the initial guidelines were promulgated.
    Subpart 3 of this Part states the authority of the Commission to 
promulgate federal sentencing guidelines, policy statements, and 
commentary.

1. Original Introduction to the Guidelines Manual

    The following provisions of this Subpart set forth the original 
introduction to this manual, effective November 1, 1987, and as amended 
through November 1, 2000:

1. Authority

    The United States Sentencing Commission (`Commission') is an 
independent agency in the judicial branch composed of seven voting and 
two non-voting, ex officio members. Its principal purpose is to 
establish sentencing policies and practices for the federal criminal 
justice system that will assure the ends of justice by promulgating 
detailed guidelines prescribing the appropriate sentences for offenders 
convicted of federal crimes.
    The guidelines and policy statements promulgated by the Commission 
are issued pursuant to Section 994(a) of Title 28, United States Code.

2. The Statutory Mission

    The Sentencing Reform Act of 1984 (Title II of the Comprehensive 
Crime Control Act of 1984) provides for the development of guidelines 
that will further the basic purposes of criminal punishment: 
deterrence, incapacitation, just punishment, and rehabilitation. The 
Act delegates broad authority to the Commission to review and 
rationalize the federal sentencing process.
    The Act contains detailed instructions as to how this determination 
should be made, the most important of which directs the Commission to 
create categories of offense behavior and offender characteristics. An 
offense behavior category might consist, for example, of `bank robbery/
committed with a gun/$2500 taken.' An offender characteristic category 
might be `offender with one prior conviction not resulting in 
imprisonment.' The Commission is required to prescribe guideline ranges 
that specify an appropriate sentence for each class of convicted 
persons determined by coordinating the offense behavior categories with 
the offender characteristic categories. Where the guidelines call for 
imprisonment, the range must be narrow: the maximum of the range cannot 
exceed the minimum by more than the greater of 25 percent or six 
months. 28 U.S.C. 994(b)(2).
    Pursuant to the Act, the sentencing court must select a sentence 
from within the guideline range. If, however, a particular case 
presents atypical features, the Act allows the court to depart from the 
guidelines and sentence outside the prescribed range. In that case, the 
court must specify reasons for departure. 18 U.S.C. 3553(b). If the 
court sentences within the guideline range, an appellate court may 
review the sentence to determine whether the guidelines were correctly 
applied. If the court departs from the guideline range, an appellate 
court may review the reasonableness of the departure. 18 U.S.C. 3742. 
The Act also abolishes parole, and substantially reduces and 
restructures good behavior adjustments.
    The Commission's initial guidelines were submitted to Congress on 
April 13, 1987. After the prescribed period of Congressional review, 
the guidelines took effect on November 1, 1987, and apply to all 
offenses committed on or after that date. The Commission has the 
authority to submit guideline amendments each year to Congress between 
the beginning of a regular Congressional session and May 1. Such 
amendments automatically take effect 180 days after submission unless a 
law is enacted to the contrary. 28 U.S.C. 994(p).
    The initial sentencing guidelines and policy statements were 
developed after extensive hearings, deliberation, and consideration of 
substantial public comment. The Commission emphasizes, however, that it 
views the guideline-writing process as evolutionary. It expects, and 
the governing statute anticipates, that continuing research, 
experience, and analysis will result in modifications and revisions to 
the guidelines through submission of amendments to Congress. To this 
end, the Commission is established as a permanent agency to monitor 
sentencing practices in the federal courts.

3. The Basic Approach (Policy Statement)

    To understand the guidelines and their underlying rationale, it is 
important to focus on the three objectives that Congress sought to 
achieve in enacting the Sentencing Reform Act of 1984. The Act's basic 
objective was to enhance the ability of the criminal justice system to 
combat crime through an effective, fair sentencing system. To achieve 
this end, Congress first sought honesty in

[[Page 89170]]

sentencing. It sought to avoid the confusion and implicit deception 
that arose out of the pre-guidelines sentencing system which required 
the court to impose an indeterminate sentence of imprisonment and 
empowered the parole commission to determine how much of the sentence 
an offender actually would serve in prison. This practice usually 
resulted in a substantial reduction in the effective length of the 
sentence imposed, with defendants often serving only about one-third of 
the sentence imposed by the court.
    Second, Congress sought reasonable uniformity in sentencing by 
narrowing the wide disparity in sentences imposed for similar criminal 
offenses committed by similar offenders. Third, Congress sought 
proportionality in sentencing through a system that imposes 
appropriately different sentences for criminal conduct of differing 
severity.
    Honesty is easy to achieve: the abolition of parole makes the 
sentence imposed by the court the sentence the offender will serve, 
less approximately fifteen percent for good behavior. There is a 
tension, however, between the mandate of uniformity and the mandate of 
proportionality. Simple uniformity--sentencing every offender to five 
years--destroys proportionality. Having only a few simple categories of 
crimes would make the guidelines uniform and easy to administer, but 
might lump together offenses that are different in important respects. 
For example, a single category for robbery that included armed and 
unarmed robberies, robberies with and without injuries, robberies of a 
few dollars and robberies of millions, would be far too broad.
    A sentencing system tailored to fit every conceivable wrinkle of 
each case would quickly become unworkable and seriously compromise the 
certainty of punishment and its deterrent effect. For example: a bank 
robber with (or without) a gun, which the robber kept hidden (or 
brandished), might have frightened (or merely warned), injured 
seriously (or less seriously), tied up (or simply pushed) a guard, 
teller, or customer, at night (or at noon), in an effort to obtain 
money for other crimes (or for other purposes), in the company of a few 
(or many) other robbers, for the first (or fourth) time.
    The list of potentially relevant features of criminal behavior is 
long; the fact that they can occur in multiple combinations means that 
the list of possible permutations of factors is virtually endless. The 
appropriate relationships among these different factors are exceedingly 
difficult to establish, for they are often context specific. Sentencing 
courts do not treat the occurrence of a simple bruise identically in 
all cases, irrespective of whether that bruise occurred in the context 
of a bank robbery or in the context of a breach of peace. This is so, 
in part, because the risk that such a harm will occur differs depending 
on the underlying offense with which it is connected; and also because, 
in part, the relationship between punishment and multiple harms is not 
simply additive. The relation varies depending on how much other harm 
has occurred. Thus, it would not be proper to assign points for each 
kind of harm and simply add them up, irrespective of context and total 
amounts.
    The larger the number of subcategories of offense and offender 
characteristics included in the guidelines, the greater the complexity 
and the less workable the system. Moreover, complex combinations of 
offense and offender characteristics would apply and interact in 
unforeseen ways to unforeseen situations, thus failing to cure the 
unfairness of a simple, broad category system. Finally, and perhaps 
most importantly, probation officers and courts, in applying a complex 
system having numerous subcategories, would be required to make a host 
of decisions regarding whether the underlying facts were sufficient to 
bring the case within a particular subcategory. The greater the number 
of decisions required and the greater their complexity, the greater the 
risk that different courts would apply the guidelines differently to 
situations that, in fact, are similar, thereby reintroducing the very 
disparity that the guidelines were designed to reduce.
    In view of the arguments, it would have been tempting to retreat to 
the simple, broad category approach and to grant courts the discretion 
to select the proper point along a broad sentencing range. Granting 
such broad discretion, however, would have risked correspondingly broad 
disparity in sentencing, for different courts may exercise their 
discretionary powers in different ways. Such an approach would have 
risked a return to the wide disparity that Congress established the 
Commission to reduce and would have been contrary to the Commission's 
mandate set forth in the Sentencing Reform Act of 1984.
    In the end, there was no completely satisfying solution to this 
problem. The Commission had to balance the comparative virtues and 
vices of broad, simple categorization and detailed, complex 
subcategorization, and within the constraints established by that 
balance, minimize the discretionary powers of the sentencing court. Any 
system will, to a degree, enjoy the benefits and suffer from the 
drawbacks of each approach.
    A philosophical problem arose when the Commission attempted to 
reconcile the differing perceptions of the purposes of criminal 
punishment. Most observers of the criminal law agree that the ultimate 
aim of the law itself, and of punishment in particular, is the control 
of crime. Beyond this point, however, the consensus seems to break 
down. Some argue that appropriate punishment should be defined 
primarily on the basis of the principle of `just deserts.' Under this 
principle, punishment should be scaled to the offender's culpability 
and the resulting harms. Others argue that punishment should be imposed 
primarily on the basis of practical `crime control' considerations. 
This theory calls for sentences that most effectively lessen the 
likelihood of future crime, either by deterring others or 
incapacitating the defendant.
    Adherents of each of these points of view urged the Commission to 
choose between them and accord one primacy over the other. As a 
practical matter, however, this choice was unnecessary because in most 
sentencing decisions the application of either philosophy will produce 
the same or similar results.
    In its initial set of guidelines, the Commission sought to solve 
both the practical and philosophical problems of developing a coherent 
sentencing system by taking an empirical approach that used as a 
starting point data estimating pre-guidelines sentencing practice. It 
analyzed data drawn from 10,000 presentence investigations, the 
differing elements of various crimes as distinguished in substantive 
criminal statutes, the United States Parole Commission's guidelines and 
statistics, and data from other relevant sources in order to determine 
which distinctions were important in pre-guidelines practice. After 
consideration, the Commission accepted, modified, or rationalized these 
distinctions.
    This empirical approach helped the Commission resolve its practical 
problem by defining a list of relevant distinctions that, although of 
considerable length, was short enough to create a manageable set of 
guidelines. Existing categories are relatively broad and omit 
distinctions that some may believe important, yet they include most of 
the major distinctions that statutes and data suggest made a 
significant difference in sentencing decisions. Relevant distinctions 
not reflected in the guidelines probably will occur rarely and 
sentencing courts may take

[[Page 89171]]

such unusual cases into account by departing from the guidelines.
    The Commission's empirical approach also helped resolve its 
philosophical dilemma. Those who adhere to a just deserts philosophy 
may concede that the lack of consensus might make it difficult to say 
exactly what punishment is deserved for a particular crime. Likewise, 
those who subscribe to a philosophy of crime control may acknowledge 
that the lack of sufficient data might make it difficult to determine 
exactly the punishment that will best prevent that crime. Both groups 
might therefore recognize the wisdom of looking to those distinctions 
that judges and legislators have, in fact, made over the course of 
time. These established distinctions are ones that the community 
believes, or has found over time, to be important from either a just 
deserts or crime control perspective.
    The Commission did not simply copy estimates of pre-guidelines 
practice as revealed by the data, even though establishing offense 
values on this basis would help eliminate disparity because the data 
represent averages. Rather, it departed from the data at different 
points for various important reasons. Congressional statutes, for 
example, suggested or required departure, as in the case of the Anti-
Drug Abuse Act of 1986 that imposed increased and mandatory minimum 
sentences. In addition, the data revealed inconsistencies in treatment, 
such as punishing economic crime less severely than other apparently 
equivalent behavior.
    Despite these policy-oriented departures from pre-guidelines 
practice, the guidelines represent an approach that begins with, and 
builds upon, empirical data. The guidelines will not please those who 
wish the Commission to adopt a single philosophical theory and then 
work deductively to establish a simple and perfect set of 
categorizations and distinctions. The guidelines may prove acceptable, 
however, to those who seek more modest, incremental improvements in the 
status quo, who believe the best is often the enemy of the good, and 
who recognize that these guidelines are, as the Act contemplates, but 
the first step in an evolutionary process. After spending considerable 
time and resources exploring alternative approaches, the Commission 
developed these guidelines as a practical effort toward the achievement 
of a more honest, uniform, equitable, proportional, and therefore 
effective sentencing system.

4. The Guidelines' Resolution of Major Issues (Policy Statement)

    The guideline-drafting process required the Commission to resolve a 
host of important policy questions typically involving rather evenly 
balanced sets of competing considerations. As an aid to understanding 
the guidelines, this introduction briefly discusses several of those 
issues; commentary in the guidelines explains others.

(a) Real Offense vs. Charge Offense Sentencing

    One of the most important questions for the Commission to decide 
was whether to base sentences upon the actual conduct in which the 
defendant engaged regardless of the charges for which he was indicted 
or convicted (`real offense' sentencing), or upon the conduct that 
constitutes the elements of the offense for which the defendant was 
charged and of which he was convicted (`charge offense' sentencing). A 
bank robber, for example, might have used a gun, frightened bystanders, 
taken $50,000, injured a teller, refused to stop when ordered, and 
raced away damaging property during his escape. A pure real offense 
system would sentence on the basis of all identifiable conduct. A pure 
charge offense system would overlook some of the harms that did not 
constitute statutory elements of the offenses of which the defendant 
was convicted.
    The Commission initially sought to develop a pure real offense 
system. After all, the pre-guidelines sentencing system was, in a 
sense, this type of system. The sentencing court and the parole 
commission took account of the conduct in which the defendant actually 
engaged, as determined in a presentence report, at the sentencing 
hearing, or before a parole commission hearing officer. The 
Commission's initial efforts in this direction, carried out in the 
spring and early summer of 1986, proved unproductive, mostly for 
practical reasons. To make such a system work, even to formalize and 
rationalize the status quo, would have required the Commission to 
decide precisely which harms to take into account, how to add them up, 
and what kinds of procedures the courts should use to determine the 
presence or absence of disputed factual elements. The Commission found 
no practical way to combine and account for the large number of diverse 
harms arising in different circumstances; nor did it find a practical 
way to reconcile the need for a fair adjudicatory procedure with the 
need for a speedy sentencing process given the potential existence of 
hosts of adjudicated `real harm' facts in many typical cases. The 
effort proposed as a solution to these problems required the use of, 
for example, quadratic roots and other mathematical operations that the 
Commission considered too complex to be workable. In the Commission's 
view, such a system risked return to wide disparity in sentencing 
practice.
    In its initial set of guidelines submitted to Congress in April 
1987, the Commission moved closer to a charge offense system. This 
system, however, does contain a significant number of real offense 
elements. For one thing, the hundreds of overlapping and duplicative 
statutory provisions that make up the federal criminal law forced the 
Commission to write guidelines that are descriptive of generic conduct 
rather than guidelines that track purely statutory language. For 
another, the guidelines take account of a number of important, commonly 
occurring real offense elements such as role in the offense, the 
presence of a gun, or the amount of money actually taken, through 
alternative base offense levels, specific offense characteristics, 
cross references, and adjustments.
    The Commission recognized that a charge offense system has 
drawbacks of its own. One of the most important is the potential it 
affords prosecutors to influence sentences by increasing or decreasing 
the number of counts in an indictment. Of course, the defendant's 
actual conduct (that which the prosecutor can prove in court) imposes a 
natural limit upon the prosecutor's ability to increase a defendant's 
sentence. Moreover, the Commission has written its rules for the 
treatment of multicount convictions with an eye toward eliminating 
unfair treatment that might flow from count manipulation. For example, 
the guidelines treat a three-count indictment, each count of which 
charges sale of 100 grams of heroin or theft of $10,000, the same as a 
single-count indictment charging sale of 300 grams of heroin or theft 
of $30,000. Furthermore, a sentencing court may control any 
inappropriate manipulation of the indictment through use of its 
departure power. Finally, the Commission will closely monitor charging 
and plea agreement practices and will make appropriate adjustments 
should they become necessary.

(b) Departures

    The sentencing statute permits a court to depart from a guideline-
specified sentence only when it finds `an aggravating or mitigating 
circumstance of a kind, or to a degree, not adequately taken into 
consideration by the

[[Page 89172]]

Sentencing Commission in formulating the guidelines that should result 
in a sentence different from that described.' 18 U.S.C. 3553(b). The 
Commission intends the sentencing courts to treat each guideline as 
carving out a `heartland,' a set of typical cases embodying the conduct 
that each guideline describes. When a court finds an atypical case, one 
to which a particular guideline linguistically applies but where 
conduct significantly differs from the norm, the court may consider 
whether a departure is warranted. Section 5H1.10 (Race, Sex, National 
Origin, Creed, Religion, and Socio-Economic Status), Sec.  5H1.12 (Lack 
of Guidance as a Youth and Similar Circumstances), the third sentence 
of Sec.  5H1.4 (Physical Condition, Including Drug or Alcohol 
Dependence or Abuse), the last sentence of Sec.  5K2.12 (Coercion and 
Duress), and Sec.  5K2.19 (Post-Sentencing Rehabilitative Efforts) * 
list several factors that the court cannot take into account as grounds 
for departure. With those specific exceptions, however, the Commission 
does not intend to limit the kinds of factors, whether or not mentioned 
anywhere else in the guidelines, that could constitute grounds for 
departure in an unusual case.
    * Note: Section 5K2.19 (Post-Sentencing Rehabilitative Efforts) was 
deleted by Amendment 768, effective November 1, 2012. (See USSG App. C, 
amendment 768.)
    The Commission has adopted this departure policy for two reasons. 
First, it is difficult to prescribe a single set of guidelines that 
encompasses the vast range of human conduct potentially relevant to a 
sentencing decision. The Commission also recognizes that the initial 
set of guidelines need not do so. The Commission is a permanent body, 
empowered by law to write and rewrite guidelines, with progressive 
changes, over many years. By monitoring when courts depart from the 
guidelines and by analyzing their stated reasons for doing so and court 
decisions with references thereto, the Commission, over time, will be 
able to refine the guidelines to specify more precisely when departures 
should and should not be permitted.
    Second, the Commission believes that despite the courts' legal 
freedom to depart from the guidelines, they will not do so very often. 
This is because the guidelines, offense by offense, seek to take 
account of those factors that the Commission's data indicate made a 
significant difference in pre-guidelines sentencing practice. Thus, for 
example, where the presence of physical injury made an important 
difference in pre-guidelines sentencing practice (as in the case of 
robbery or assault), the guidelines specifically include this factor to 
enhance the sentence. Where the guidelines do not specify an 
augmentation or diminution, this is generally because the sentencing 
data did not permit the Commission to conclude that the factor was 
empirically important in relation to the particular offense. Of course, 
an important factor (e.g., physical injury) may infrequently occur in 
connection with a particular crime (e.g., fraud). Such rare occurrences 
are precisely the type of events that the courts' departure powers were 
designed to cover--unusual cases outside the range of the more typical 
offenses for which the guidelines were designed.
    It is important to note that the guidelines refer to two different 
kinds of departure. The first involves instances in which the 
guidelines provide specific guidance for departure by analogy or by 
other numerical or non-numerical suggestions. The Commission intends 
such suggestions as policy guidance for the courts. The Commission 
expects that most departures will reflect the suggestions and that the 
courts of appeals may prove more likely to find departures 
`unreasonable' where they fall outside suggested levels.
    A second type of departure will remain unguided. It may rest upon 
grounds referred to in Chapter Five, Part K (Departures) or on grounds 
not mentioned in the guidelines. While Chapter Five, Part K lists 
factors that the Commission believes may constitute grounds for 
departure, the list is not exhaustive. The Commission recognizes that 
there may be other grounds for departure that are not mentioned; it 
also believes there may be cases in which a departure outside suggested 
levels is warranted. In its view, however, such cases will be highly 
infrequent.

(c) Plea Agreements

    Nearly ninety percent of all federal criminal cases involve guilty 
pleas and many of these cases involve some form of plea agreement. Some 
commentators on early Commission guideline drafts urged the Commission 
not to attempt any major reforms of the plea agreement process on the 
grounds that any set of guidelines that threatened to change pre-
guidelines practice radically also threatened to make the federal 
system unmanageable. Others argued that guidelines that failed to 
control and limit plea agreements would leave untouched a `loophole' 
large enough to undo the good that sentencing guidelines would bring.
    The Commission decided not to make major changes in plea agreement 
practices in the initial guidelines, but rather to provide guidance by 
issuing general policy statements concerning the acceptance of plea 
agreements in Chapter Six, Part B (Plea Agreements). The rules set 
forth in Fed. R. Crim. P. 11(e) govern the acceptance or rejection of 
such agreements. The Commission will collect data on the courts' plea 
practices and will analyze this information to determine when and why 
the courts accept or reject plea agreements and whether plea agreement 
practices are undermining the intent of the Sentencing Reform Act. In 
light of this information and analysis, the Commission will seek to 
further regulate the plea agreement process as appropriate. 
Importantly, if the policy statements relating to plea agreements are 
followed, circumvention of the Sentencing Reform Act and the guidelines 
should not occur.
    The Commission expects the guidelines to have a positive, 
rationalizing impact upon plea agreements for two reasons. First, the 
guidelines create a clear, definite expectation in respect to the 
sentence that a court will impose if a trial takes place. In the event 
a prosecutor and defense attorney explore the possibility of a 
negotiated plea, they will no longer work in the dark. This fact alone 
should help to reduce irrationality in respect to actual sentencing 
outcomes. Second, the guidelines create a norm to which courts will 
likely refer when they decide whether, under Rule 11(e), to accept or 
to reject a plea agreement or recommendation.

(d) Probation and Split Sentences

    The statute provides that the guidelines are to `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 . . . 
.' 28 U.S.C. 994(j). Under pre-guidelines sentencing practice, courts 
sentenced to probation an inappropriately high percentage of offenders 
guilty of certain economic crimes, such as theft, tax evasion, 
antitrust offenses, insider trading, fraud, and embezzlement, that in 
the Commission's view are `serious.'
    The Commission's solution to this problem has been to write 
guidelines that classify as serious many offenses for which probation 
previously was frequently given and provide for at least a short period 
of imprisonment in such cases. The Commission concluded that the 
definite prospect of prison, even though the term may be short, will 
serve as a significant deterrent, particularly

[[Page 89173]]

when compared with pre-guidelines practice where probation, not prison, 
was the norm.
    More specifically, the guidelines work as follows in respect to a 
first offender. For offense levels one through eight, the sentencing 
court may elect to sentence the offender to probation (with or without 
confinement conditions) or to a prison term. For offense levels nine 
and ten, the court may substitute probation for a prison term, but the 
probation must include confinement conditions (community confinement, 
intermittent confinement, or home detention). For offense levels eleven 
and twelve, the court must impose at least one-half the minimum 
confinement sentence in the form of prison confinement, the remainder 
to be served on supervised release with a condition of community 
confinement or home detention.* The Commission, of course, has not 
dealt with the single acts of aberrant behavior that still may justify 
probation at higher offense levels through departures.**
    * 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.)

(e) Multi-Count Convictions

    The Commission, like several state sentencing commissions, has 
found it particularly difficult to develop guidelines for sentencing 
defendants convicted of multiple violations of law, each of which makes 
up a separate count in an indictment. The difficulty is that when a 
defendant engages in conduct that causes several harms, each additional 
harm, even if it increases the extent to which punishment is warranted, 
does not necessarily warrant a proportionate increase in punishment. A 
defendant who assaults others during a fight, for example, may warrant 
more punishment if he injures ten people than if he injures one, but 
his conduct does not necessarily warrant ten times the punishment. If 
it did, many of the simplest offenses, for reasons that are often 
fortuitous, would lead to sentences of life imprisonment--sentences 
that neither just deserts nor crime control theories of punishment 
would justify.
    Several individual guidelines provide special instructions for 
increasing punishment when the conduct that is the subject of that 
count involves multiple occurrences or has caused several harms. The 
guidelines also provide general rules for aggravating punishment in 
light of multiple harms charged separately in separate counts. These 
rules may produce occasional anomalies, but normally they will permit 
an appropriate degree of aggravation of punishment for multiple 
offenses that are the subjects of separate counts.
    These rules are set out in Chapter Three, Part D (Multiple Counts). 
They essentially provide: (1) when the conduct involves fungible items 
(e.g., separate drug transactions or thefts of money), the amounts are 
added and the guidelines apply to the total amount; (2) when 
nonfungible harms are involved, the offense level for the most serious 
count is increased (according to a diminishing scale) to reflect the 
existence of other counts of conviction. The guidelines have been 
written in order to minimize the possibility that an arbitrary casting 
of a single transaction into several counts will produce a longer 
sentence. In addition, the sentencing court will have adequate power to 
prevent such a result through departures.

(f) Regulatory Offenses

    Regulatory statutes, though primarily civil in nature, sometimes 
contain criminal provisions in respect to particularly harmful 
activity. Such criminal provisions often describe not only substantive 
offenses, but also more technical, administratively-related offenses 
such as failure to keep accurate records or to provide requested 
information. These statutes pose two problems: first, which criminal 
regulatory provisions should the Commission initially consider, and 
second, how should it treat technical or administratively-related 
criminal violations?
    In respect to the first problem, the Commission found that it could 
not comprehensively treat all regulatory violations in the initial set 
of guidelines. There are hundreds of such provisions scattered 
throughout the United States Code. To find all potential violations 
would involve examination of each individual federal regulation. 
Because of this practical difficulty, the Commission sought to 
determine, with the assistance of the Department of Justice and several 
regulatory agencies, which criminal regulatory offenses were 
particularly important in light of the need for enforcement of the 
general regulatory scheme. The Commission addressed these offenses in 
the initial guidelines.
    In respect to the second problem, the Commission has developed a 
system for treating technical recordkeeping and reporting offenses that 
divides them into four categories. First, in the simplest of cases, the 
offender may have failed to fill out a form intentionally, but without 
knowledge or intent that substantive harm would likely follow. He might 
fail, for example, to keep an accurate record of toxic substance 
transport, but that failure may not lead, nor be likely to lead, to the 
release or improper handling of any toxic substance. Second, the same 
failure may be accompanied by a significant likelihood that substantive 
harm will occur; it may make a release of a toxic substance more 
likely. Third, the same failure may have led to substantive harm. 
Fourth, the failure may represent an effort to conceal a substantive 
harm that has occurred.
    The structure of a typical guideline for a regulatory offense 
provides a low base offense level (e.g., 6) aimed at the first type of 
recordkeeping or reporting offense. Specific offense characteristics 
designed to reflect substantive harms that do occur in respect to some 
regulatory offenses, or that are likely to occur, increase the offense 
level. A specific offense characteristic also provides that a 
recordkeeping or reporting offense that conceals a substantive offense 
will have the same offense level as the substantive offense.

[[Page 89174]]

(g) Sentencing Ranges

    In determining the appropriate sentencing ranges for each offense, 
the Commission estimated the average sentences served within each 
category under the pre-guidelines sentencing system. It also examined 
the sentences specified in federal statutes, in the parole guidelines, 
and in other relevant, analogous sources. The Commission's 
Supplementary Report on the Initial Sentencing Guidelines (1987) 
contains a comparison between estimates of pre-guidelines sentencing 
practice and sentences under the guidelines.
    While the Commission has not considered itself bound by pre-
guidelines sentencing practice, it has not attempted to develop an 
entirely new system of sentencing on the basis of theory alone. 
Guideline sentences, in many instances, will approximate average pre-
guidelines practice and adherence to the guidelines will help to 
eliminate wide disparity. For example, where a high percentage of 
persons received probation under pre-guidelines practice, a guideline 
may include one or more specific offense characteristics in an effort 
to distinguish those types of defendants who received probation from 
those who received more severe sentences. In some instances, short 
sentences of incarceration for all offenders in a category have been 
substituted for a pre-guidelines sentencing practice of very wide 
variability in which some defendants received probation while others 
received several years in prison for the same offense. Moreover, 
inasmuch as those who pleaded guilty under pre-guidelines practice 
often received lesser sentences, the guidelines permit the court to 
impose lesser sentences on those defendants who accept responsibility 
for their misconduct. For defendants who provide substantial assistance 
to the government in the investigation or prosecution of others, a 
downward departure may be warranted.
    The Commission has also examined its sentencing ranges in light of 
their likely impact upon prison population. Specific legislation, such 
as the Anti-Drug Abuse Act of 1986 and the career offender provisions 
of the Sentencing Reform Act of 1984 (28 U.S.C. 994(h)), required the 
Commission to promulgate guidelines that will lead to substantial 
prison population increases. These increases will occur irrespective of 
the guidelines. The guidelines themselves, insofar as they reflect 
policy decisions made by the Commission (rather than legislated 
mandatory minimum or career offender sentences), are projected to lead 
to an increase in prison population that computer models, produced by 
the Commission and the Bureau of Prisons in 1987, estimated at 
approximately 10 percent over a period of ten years.

(h) The Sentencing Table

    The Commission has established a sentencing table that for 
technical and practical reasons contains 43 levels. Each level in the 
table prescribes ranges that overlap with the ranges in the preceding 
and succeeding levels. By overlapping the ranges, the table should 
discourage unnecessary litigation. Both prosecution and defense will 
realize that the difference between one level and another will not 
necessarily make a difference in the sentence that the court imposes. 
Thus, little purpose will be served in protracted litigation trying to 
determine, for example, whether $10,000 or $11,000 was obtained as a 
result of a fraud. At the same time, the levels work to increase a 
sentence proportionately. A change of six levels roughly doubles the 
sentence irrespective of the level at which one starts. The guidelines, 
in keeping with the statutory requirement that the maximum of any range 
cannot exceed the minimum by more than the greater of 25 percent or six 
months (28 U.S.C. 994(b)(2)), permit courts to exercise the greatest 
permissible range of sentencing discretion. The table overlaps offense 
levels meaningfully, works proportionately, and at the same time 
preserves the maximum degree of allowable discretion for the court 
within each level.
    Similarly, many of the individual guidelines refer to tables that 
correlate amounts of money with offense levels. These tables often have 
many rather than a few levels. Again, the reason is to minimize the 
likelihood of unnecessary litigation. If a money table were to make 
only a few distinctions, each distinction would become more important 
and litigation over which category an offender fell within would become 
more likely. Where a table has many small monetary distinctions, it 
minimizes the likelihood of litigation because the precise amount of 
money involved is of considerably less importance.

5. A Concluding Note

    The Commission emphasizes that it drafted the initial guidelines 
with considerable caution. It examined the many hundreds of criminal 
statutes in the United States Code. It began with those that were the 
basis for a significant number of prosecutions and sought to place them 
in a rational order. It developed additional distinctions relevant to 
the application of these provisions and it applied sentencing ranges to 
each resulting category. In doing so, it relied upon pre-guidelines 
sentencing practice as revealed by its own statistical analyses based 
on summary reports of some 40,000 convictions, a sample of 10,000 
augmented presentence reports, the parole guidelines, and policy 
judgments.
    The Commission recognizes that some will criticize this approach as 
overly cautious, as representing too little a departure from pre-
guidelines sentencing practice. Yet, it will cure wide disparity. The 
Commission is a permanent body that can amend the guidelines each year. 
Although the data available to it, like all data, are imperfect, 
experience with the guidelines will lead to additional information and 
provide a firm empirical basis for consideration of revisions.
    Finally, the guidelines will apply to more than 90 percent of all 
felony and Class A misdemeanor cases in the federal courts. Because of 
time constraints and the nonexistence of statistical information, some 
offenses that occur infrequently are not considered in the guidelines. 
Their exclusion does not reflect any judgment regarding their 
seriousness and they will be addressed as the Commission refines the 
guidelines over time.

2. Continuing Evolution and Role of the Guidelines

    The Sentencing Reform Act of 1984 changed the course of federal 
sentencing. Among other things, the Act created the United States 
Sentencing Commission as an independent agency in the Judicial Branch, 
and directed it to develop guidelines and policy statements for 
sentencing courts to use when sentencing offenders convicted of federal 
crimes. Moreover, it empowered the Commission with ongoing 
responsibilities to monitor the guidelines, submit to Congress 
appropriate modifications of the guidelines and recommended changes in 
criminal statutes, and establish education and research programs. The 
mandate rested on congressional awareness that sentencing is a dynamic 
field that requires continuing review by an expert body to revise 
sentencing policies, in light of application experience, as new 
criminal statutes are enacted, and as more is learned about what 
motivates and controls criminal behavior.
    This statement finds resonance in a line of Supreme Court cases 
that, taken together, echo two themes. The first

[[Page 89175]]

theme is that the guidelines are the product of a deliberative process 
that seeks to embody the purposes of sentencing set forth in the 
Sentencing Reform Act, and as such they continue to play an important 
role in the sentencing court's determination of an appropriate sentence 
in a particular case. The Supreme Court alluded to this in Mistretta v. 
United States, 488 U.S. 361 (1989), which upheld the constitutionality 
of both the federal sentencing guidelines and the Commission against 
nondelegation and separation of powers challenges. Therein the Court 
stated:
    Developing proportionate penalties for hundreds of different crimes 
by a virtually limitless array of offenders is precisely the sort of 
intricate, labor-intensive task for which delegation to an expert body 
is especially appropriate. Although Congress has delegated significant 
discretion to the Commission to draw judgments from its analysis of 
existing sentencing practice and alternative sentencing models, . . . 
[w]e have no doubt that in the hands of the Commission `the criteria 
which Congress has supplied are wholly adequate for carrying out the 
general policy and purpose' of the Act.
    Id. at 379 (internal quotation marks and citations omitted).
    The continuing importance of the guidelines in federal sentencing 
was further acknowledged by the Court in United States v. Booker, 543 
U.S. 220 (2005), even as that case rendered the guidelines advisory in 
nature. In Booker, the Court held that the imposition of an enhanced 
sentence under the federal sentencing guidelines based on the 
sentencing judge's determination of a fact (other than a prior 
conviction) that was not found by the jury or admitted by the defendant 
violated the Sixth Amendment. The Court reasoned that an advisory 
guideline system, while lacking the mandatory features that Congress 
enacted, retains other features that help to further congressional 
objectives, including providing certainty and fairness in meeting the 
purposes of sentencing, avoiding unwarranted sentencing disparities, 
and maintaining sufficient flexibility to permit individualized 
sentences when warranted. The Court concluded that an advisory 
guideline system would `continue to move sentencing in Congress' 
preferred direction, helping to avoid excessive sentencing disparities 
while maintaining flexibility sufficient to individualize sentences 
where necessary.' Id. at 264-65. An advisory guideline system continues 
to assure transparency by requiring that sentences be based on 
articulated reasons stated in open court that are subject to appellate 
review. An advisory guideline system also continues to promote 
certainty and predictability in sentencing, thereby enabling the 
parties to better anticipate the likely sentence based on the 
individualized facts of the case.
    The continuing importance of the guidelines in the sentencing 
determination is predicated in large part on the Sentencing Reform 
Act's intent that, in promulgating guidelines, the Commission must take 
into account the purposes of sentencing as set forth in 18 U.S.C. 
3553(a). See 28 U.S.C. 994(f), 991(b)(1). The Supreme Court reinforced 
this view in Rita v. United States, 551 U.S. 338 (2007), which held 
that a court of appeals may apply a presumption of reasonableness to a 
sentence imposed by a district court within a properly calculated 
guideline range without violating the Sixth Amendment. In Rita, the 
Court relied heavily on the complementary roles of the Commission and 
the sentencing court in federal sentencing, stating:
    [T]he presumption reflects the nature of the Guidelines-writing 
task that Congress set for the Commission and the manner in which the 
Commission carried out that task. In instructing both the sentencing 
judge and the Commission what to do, Congress referred to the basic 
sentencing objectives that the statute sets forth in 18 U.S.C. 3553(a) 
. . . . The provision also tells the sentencing judge to `impose a 
sentence sufficient, but not greater than necessary, to comply with' 
the basic aims of sentencing as set out above. Congressional statutes 
then tell the Commission to write Guidelines that will carry out these 
same Sec.  3553(a) objectives.
    Id. at 347-48 (emphasis in original). The Court concluded that 
`[t]he upshot is that the sentencing statutes envision both the 
sentencing judge and the Commission as carrying out the same basic 
Sec.  3553(a) objectives, the one, at retail, the other at 
wholesale[,]' id. at 348, and that the Commission's process for 
promulgating guidelines results in `a set of Guidelines that seek to 
embody the Sec.  3553(a) considerations, both in principle and in 
practice.' Id. at 350.
    Consequently, district courts are required to properly calculate 
and consider the guidelines when sentencing, even in an advisory 
guideline system. See 18 U.S.C. 3553(a)(4), (a)(5); Booker, 543 U.S. at 
264 (`The district courts, while not bound to apply the Guidelines, 
must . . . take them into account when sentencing.'); Rita, 551 U.S. at 
351 (stating that a district court should begin all sentencing 
proceedings by correctly calculating the applicable Guidelines range); 
Gall v. United States, 552 U.S. 38, 49 (2007) (`As a matter of 
administration and to secure nationwide consistency, the Guidelines 
should be the starting point and the initial benchmark.'). The district 
court, in determining the appropriate sentence in a particular case, 
therefore, must consider the properly calculated guideline range, the 
grounds for departure provided in the policy statements, and then the 
factors under 18 U.S.C. 3553(a). See Rita, 551 U.S. at 351. The 
appellate court engages in a two-step process upon review. The 
appellate court `first ensure[s] that the district court committed no 
significant procedural error, such as failing to calculate (or 
improperly calculating) the Guidelines range . . . [and] then 
consider[s] the substantive reasonableness of the sentence imposed 
under an abuse-of-discretion standard[,] . . . tak[ing] into account 
the totality of the circumstances, including the extent of any variance 
from the Guidelines range.' Gall, 552 U.S. at 51.
    The second and related theme resonant in this line of Supreme Court 
cases is that, as contemplated by the Sentencing Reform Act, the 
guidelines are evolutionary in nature. They are the product of the 
Commission's fulfillment of its statutory duties to monitor federal 
sentencing law and practices, to seek public input on the operation of 
the guidelines, and to revise the guidelines accordingly. As the Court 
acknowledged in Rita:
    The Commission's work is ongoing. The statutes and the Guidelines 
themselves foresee continuous evolution helped by the sentencing courts 
and courts of appeals in that process. The sentencing courts, applying 
the Guidelines in individual cases may depart (either pursuant to the 
Guidelines or, since Booker, by imposing a non-Guidelines sentence). 
The judges will set forth their reasons. The Courts of Appeals will 
determine the reasonableness of the resulting sentence. The Commission 
will collect and examine the results. In doing so, it may obtain advice 
from prosecutors, defenders, law enforcement groups, civil liberties 
associations, experts in penology, and others. And it can revise the 
Guidelines accordingly.
    Rita, 551 U.S. at 350; see also Booker, 543 U.S. at 264 (`[T]he 
Sentencing Commission remains in place, writing Guidelines, collecting 
information about actual district court sentencing decisions, 
undertaking research, and revising the Guidelines accordingly.'); Gall, 
552 U.S. at 46 (`[E]ven though the

[[Page 89176]]

Guidelines are advisory rather than mandatory, they are, as we pointed 
out in Rita, the product of careful study based on extensive empirical 
evidence derived from the review of thousands of individual sentencing 
decisions.').
    Provisions of the Sentencing Reform Act promote and facilitate this 
evolutionary process. For example, pursuant to 28 U.S.C. 994(x), the 
Commission publishes guideline amendment proposals in the Federal 
Register and conducts hearings to solicit input on those proposals from 
experts and other members of the public. Pursuant to 28 U.S.C. 994(o), 
the Commission periodically reviews and revises the guidelines in 
consideration of comments it receives from members of the federal 
criminal justice system, including the courts, probation officers, the 
Department of Justice, the Bureau of Prisons, defense attorneys and the 
federal public defenders, and in consideration of data it receives from 
sentencing courts and other sources. Statutory mechanisms such as these 
bolster the Commission's ability to take into account fully the 
purposes of sentencing set forth in 18 U.S.C. 3553(a)(2) in its 
promulgation of the guidelines.
    Congress retains authority to require certain sentencing practices 
and may exercise its authority through specific directives to the 
Commission with respect to the guidelines. As the Supreme Court noted 
in Kimbrough v. United States, 552 U.S. 85 (2007), `Congress has shown 
that it knows how to direct sentencing practices in express terms. For 
example, Congress has specifically required the Sentencing Commission 
to set Guideline sentences for serious recidivist offenders `at or 
near' the statutory maximum.' Id. at 103; 28 U.S.C. 994(h).
    As envisioned by Congress, implemented by the Commission, and 
reaffirmed by the Supreme Court, the guidelines are the product of a 
deliberative and dynamic process that seeks to embody within federal 
sentencing policy the purposes of sentencing set forth in the 
Sentencing Reform Act. As such, the guidelines continue to be a key 
component of federal sentencing and to play an important role in the 
sentencing court's determination of an appropriate sentence in any 
particular case.

3. Authority

Sec.  1A3.1. Authority

    The guidelines, policy statements, and commentary set forth in this 
Guidelines Manual, including amendments thereto, are promulgated by the 
United States Sentencing Commission pursuant to: (1) section 994(a) of 
title 28, United States Code; and (2) with respect to guidelines, 
policy statements, and commentary promulgated or amended pursuant to 
specific congressional directive, pursuant to the authority contained 
in that directive in addition to the authority under section 994(a) of 
title 28, United States Code.'';
    and inserting the following:

``Part A--Introduction and Authority

Introductory Commentary

    The United States Sentencing Commission (`Commission') is an 
independent agency in the judicial branch composed of seven voting and 
two non-voting, ex officio members. Its principal purpose is to 
establish sentencing policies and practices for the federal criminal 
justice system that will assure the ends of justice by promulgating 
detailed guidelines prescribing the appropriate sentences for offenders 
convicted of federal crimes. This Part provides the statutory authority 
and mission of the Commission to promulgate federal sentencing 
guidelines, policy statements, and commentary.
    Further information describing the historical development and 
evolution of the federal sentencing guidelines is set forth in Appendix 
D of the Guidelines Manual.

1. Authority

Sec.  1A1.1. Authority

    The Sentencing Reform Act of 1984 (Title II of the Comprehensive 
Crime Control Act of 1984) provides for the development of guidelines 
that will further the basic purposes of criminal punishment: 
deterrence, incapacitation, just punishment, and rehabilitation. The 
Act delegates broad authority to the Commission to review and 
rationalize the federal sentencing process.
    The guidelines, policy statements, and commentary set forth in this 
Guidelines Manual, including amendments thereto, are promulgated by the 
United States Sentencing Commission pursuant to: (1) section 994(a) of 
title 28, United States Code; and (2) with respect to guidelines, 
policy statements, and commentary promulgated or amended pursuant to 
specific congressional directive, pursuant to the authority contained 
in that directive in addition to the authority under section 994(a) of 
title 28, United States Code.''.
    Section 1B1.1(a) is amended--
    by inserting at the beginning the following new heading: ``Step 
One: Calculation of Guideline Range and Determination of Sentencing 
Requirements and Options under the Guidelines Manual.--'';
    in paragraph 5 by striking ``Apply the adjustment as appropriate 
for the defendant's acceptance of responsibility from Part E of Chapter 
Three'' and inserting ``Apply the adjustment for the defendant's 
acceptance of responsibility and the reduction pursuant to an early 
disposition program, as appropriate, from Parts E and F of Chapter 
Three'';
    in paragraph 6 by striking ``Part B'' and inserting ``Parts B and 
C'';
    and by inserting at the end the following new paragraph 9:
    ``(9) Apply, as appropriate, Part K of Chapter Five.''.
    Section 1B1.1 is amended by striking subsections (b) and (c) as 
follows:
    ``(b) The court shall then consider Parts H and K of Chapter Five, 
Specific Offender Characteristics and Departures, and any other policy 
statements or commentary in the guidelines that might warrant 
consideration in imposing sentence. See 18 U.S.C. 3553(a)(5).
    (c) The court shall then consider the applicable factors in 18 
U.S.C. 3553(a) taken as a whole. See 18 U.S.C. 3553(a).'';
    and inserting the following new subsection (b):
    ``(b) Step Two: Consideration of Factors Set Forth in 18 U.S.C. 
3553(a) and Related Guidance.--The court shall then consider as a whole 
the additional factors identified in 18 U.S.C. 3553(a) and the guidance 
provided in Chapter Six to determine the sentence that is sufficient, 
but not greater than necessary, to comply with the purposes set forth 
in 18 U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a).''.
    The Commentary to Sec.  1B1.1 captioned ``Application Notes'' is 
amended in Note 1--
    by striking subparagraph (F) as follows:
    ``(F) `Departure' means (i) for purposes other than those specified 
in subdivision (ii), imposition of a sentence outside the applicable 
guideline range or of a sentence that is otherwise different from the 
guideline sentence; and (ii) for purposes of Sec.  4A1.3 (Departures 
Based on Inadequacy of Criminal History Category), assignment of a 
criminal history category other than the otherwise applicable criminal 
history category, in order to effect a sentence outside the applicable 
guideline range. `Depart' means grant a departure.

[[Page 89177]]

    `Downward departure' means departure that effects a sentence less 
than a sentence that could be imposed under the applicable guideline 
range or a sentence that is otherwise less than the guideline sentence. 
`Depart downward' means grant a downward departure.
    `Upward departure' means departure that effects a sentence greater 
than a sentence that could be imposed under the applicable guideline 
range or a sentence that is otherwise greater than the guideline 
sentence. `Depart upward' means grant an upward departure.'';
    and by redesignating subparagraphs (G) through (M) as subparagraphs 
(F) through (L), respectively.
    The Commentary to Sec.  1B1.1 captioned ``Background'' is amended 
by striking the following:
    ``The court must impose a sentence `sufficient, but not greater 
than necessary,' to comply with the purposes of sentencing set forth in 
18 U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a). Subsections (a), (b), and 
(c) are structured to reflect the three-step process used in 
determining the particular sentence to be imposed. If, after step (c), 
the court imposes a sentence that is outside the guidelines framework, 
such a sentence is considered a `variance'. See Irizarry v. United 
States, 553 U.S. 708, 709-16 (2008) (describing within-range sentences 
and departures as `sentences imposed under the framework set out in the 
Guidelines').'';
    and inserting the following:
    ``The court must impose a sentence `sufficient, but not greater 
than necessary,' to comply with the purposes of sentencing set forth in 
18 U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a). This guideline is 
structured to reflect the advisory sentencing scheme established 
following the Supreme Court's decision in United States v. Booker, 543 
U.S. 220 (2005), by setting forth both essential steps of the court's 
inquiry in making this determination.
    District courts are required to properly calculate and consider the 
guidelines when sentencing. See 18 U.S.C. 3553(a)(4), (a)(5); Booker, 
543 U.S. at 264 (`The district courts, while not bound to apply the 
Guidelines, must . . . take them into account when sentencing.'); Rita 
v. United States, 551 U.S. 338, 351 (2007) (stating that a district 
court should begin all sentencing proceedings by correctly calculating 
the applicable Guidelines range); Gall v. United States, 552 U.S. 38, 
49 (2007) (`As a matter of administration and to secure nationwide 
consistency, the Guidelines should be the starting point and the 
initial benchmark.'); Peugh v. United States, 569 U.S. 530 (2013) 
(noting that `the post-Booker federal sentencing system adopted 
procedural measures that make the guidelines the `lodestone' of 
sentencing'). Step one sets forth the steps for properly calculating 
the guidelines.
    District courts are then required to fully and carefully consider 
the additional factors set forth in 18 U.S.C. 3553(a), which include: 
(1) the nature and circumstances of the offense and the history and 
characteristics of the defendant; (2) the need for the sentence imposed 
to meet the purposes of sentencing listed in 18 U.S.C. 3553(a)(2); (3) 
the kinds of sentence available; (4) the need to avoid unwarranted 
sentence disparities among defendants with similar records who have 
been found guilty of similar conduct; and (5) the need to provide 
restitution to any victims of the offense. See Rita, 551 U.S. at 351. 
Step two, as set forth in subsection (b), reflects this step of the 
sentencing process and also instructs courts to consider guidance 
provided by the Commission in Chapter Six.''.
    The Commentary to Sec.  1B1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking ``the court would be forced to use an 
artificial guideline and then depart from it'' and inserting ``the 
court would be forced to use an artificial guideline and then impose a 
sentence that is greater than the otherwise applicable guideline 
range''; by striking ``the probation officer might need to calculate 
the robbery guideline to assist the court in determining the 
appropriate degree of departure'' and inserting ``the probation officer 
might need to calculate the robbery guideline to assist the court in 
determining an appropriate sentence''; and by striking ``Chapter Six, 
Part B (Plea Agreements)'' and inserting '' Chapter Seven, Part B (Plea 
Agreements)''.
    Section 1B1.3(b) is amended in the heading by striking ``Five 
(Determining the Sentence)'' and inserting ``Five (Determining the 
Sentencing Range and Options Under the Guidelines)''.
    The Commentary to Sec.  1B1.3 captioned ``Application Notes'' is 
amended--
    in Note 3(B) by striking ``The Commission does not foreclose the 
possibility that there may be some unusual set of circumstances in 
which the exclusion of such conduct may not adequately reflect the 
defendant's culpability; in such a case, an upward departure may be 
warranted.'';
    and in Note 6(B) by striking ``In a case in which creation of risk 
is not adequately taken into account by the applicable offense 
guideline, an upward departure may be warranted. See generally Sec.  
1B1.4 (Information to be Used in Imposing Sentence); Sec.  5K2.0 
(Grounds for Departure).''.
    The Commentary to Sec.  1B1.3 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The conduct of members of a conspiracy prior to the defendant 
joining the conspiracy, which is not otherwise considered as part of 
the defendant's relevant conduct.
    (B) The applicable guideline does not adequately account the risk 
or danger of harm created.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    Section 1B1.4 is amended--
    in the heading by striking ``(Selecting a Point Within the 
Guideline Range or Departing from the Guidelines)'';
    and by striking ``In determining the sentence to impose within the 
guideline range, or whether a departure from the guidelines is 
warranted'' and inserting ``In determining the sentence to impose''.
    The Commentary to 1B1.4 captioned ``Background'' is amended by 
striking the following:
    ``This section distinguishes between factors that determine the 
applicable guideline sentencing range (Sec.  1B1.3) and information 
that a court may consider in imposing a sentence within that range. The 
section is based on 18 U.S.C. 3661, which recodifies 18 U.S.C. 3577. 
The recodification of this 1970 statute in 1984 with an effective date 
of 1987 (99 Stat. 1728), makes it clear that Congress intended that no 
limitation would be placed on the information that a court may consider 
in imposing an appropriate sentence under the future guideline 
sentencing system. A court is not precluded from considering 
information that the guidelines do not take into account in determining 
a sentence within the guideline range or from considering that 
information in determining whether and to what extent to depart from 
the guidelines. For example, if the defendant committed two robberies, 
but as part of a plea negotiation entered a guilty plea to only one, 
the robbery that was not taken into account by the guidelines would 
provide a reason for sentencing at the top of the guideline range and 
may provide a reason for an upward departure. Some policy statements 
do, however, express a Commission policy

[[Page 89178]]

that certain factors should not be considered for any purpose, or 
should be considered only for limited purposes. See, e.g., Chapter 
Five, Part H (Specific Offender Characteristics).'';
    and inserting the following:
    ``This section distinguishes between factors that determine the 
applicable guideline sentencing range (Sec.  1B1.3) and information 
that a court may consider in imposing a sentence. The section is based 
on 18 U.S.C. 3661, which recodifies 18 U.S.C. 3577. The recodification 
of this 1970 statute in 1984 with an effective date of 1987 (99 Stat. 
1728), makes it clear that Congress intended that no limitation would 
be placed on the information that a court may consider in imposing an 
appropriate sentence under the future guideline sentencing system. A 
court is not precluded from considering information that the guidelines 
do not take into account. For example, if the defendant committed two 
robberies, but as part of a plea negotiation entered a guilty plea to 
only one, the robbery that was not taken into account by the guidelines 
may provide a reason for sentencing at the top of, or above, the 
guideline range. Chapter Six, Part A (Consideration of Factors in 18 
U.S.C. 3553(a)) details factors which generally are not considered in 
the calculation of the guideline range, but which courts regularly 
consider pursuant to 18 U.S.C. 3553(a).''.
    Section 1B1.7 is amended by striking ``the commentary may suggest 
circumstances which, in the view of the Commission, may warrant 
departure from the guidelines'' and inserting ``the commentary may 
suggest additional considerations for the court to take into account in 
determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a)''; and by striking ``such commentary may provide guidance in 
assessing the reasonableness of any departure from the guidelines'' and 
inserting ``such commentary may provide guidance in determining the 
appropriate sentence to impose''.
    Section 1B1.8(b)(5) is amended by striking ``in determining 
whether, or to what extent, a downward departure from the guidelines is 
warranted pursuant to a government motion under Sec.  5K1.1 
(Substantial Assistance to Authorities)'' and inserting ``in 
determining whether, or to what extent, to impose a sentence that is 
below the otherwise applicable guideline range pursuant to a government 
motion under Sec.  5K1.1 (Substantial Assistance to Authorities)''.
    The Commentary to Sec.  1B1.8 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Although the guideline itself affects 
only the determination of the guideline range, the policy of the 
Commission, as a corollary, is that information prohibited from being 
used to determine the applicable guideline range shall not be used to 
depart upward. In contrast, subsection (b)(5) provides that 
consideration of such information is appropriate in determining 
whether, and to what extent, a downward departure is warranted pursuant 
to a government motion under Sec.  5K1.1 (Substantial Assistance to 
Authorities); e.g., a court may refuse to depart downward on the basis 
of such information.'' and inserting ``Although the guideline itself 
affects only the determination of the guideline range, the policy of 
the Commission, as a corollary, is that information prohibited from 
being used to determine the applicable guideline range shall not be 
used to increase a defendant's applicable guideline range. In contrast, 
subsection (b)(5) provides that consideration of such information is 
appropriate in determining whether, or to what extent, to impose a 
sentence that is below the otherwise applicable guideline range 
pursuant to a government motion under Sec.  5K1.1 (Substantial 
Assistance to Authorities). For example, a court may refuse to impose a 
sentence that is below the otherwise applicable guideline range on the 
basis of such information.''.
    The Commentary to Sec.  1B1.10 captioned ``Application Notes'' is 
amended--
    in Note 1(A) by striking ``(i.e., the guideline range that 
corresponds to the offense level and criminal history category 
determined pursuant to Sec.  1B1.1(a), which is determined before 
consideration of any departure provision in the Guidelines Manual or 
any variance)'' and inserting ``(i.e., the guideline range that 
corresponds to the offense level and criminal history category 
determined pursuant to Sec.  1B1.1(a), which is determined before 
consideration of the remaining provisions in Sec.  1B1.1)'';
    and in Note 3 by striking ``representing a downward departure of 20 
percent'' and inserting ``representing a reduction of 20 percent''; and 
by striking ``authorizing, upon government motion, a downward departure 
based on the defendant's substantial assistance'' and inserting 
``authorizing the court, upon government motion, to impose a sentence 
that is below the otherwise applicable guideline range based on the 
defendant's substantial assistance''.
    Section 1B.12 is amended by striking ``sufficient to warrant an 
upward departure from that guideline range'' and inserting ``sufficient 
to warrant imposing a sentence that exceeds that guideline range''.
    Chapter Two is amended in the Introductory Commentary by inserting 
after ``adjust the offense level upward or downward.'' the following: 
``Additionally, each guideline may identify certain conduct not fully 
accounted for in the base offense level or specific offense 
characteristics that the district court may choose to consider pursuant 
to the additional factors set forth in 18 U.S.C. 3553(a) and the 
guidance set forth in Chapter Six (Determining the Sentence 
Imposed).''; and by striking ``Chapter Four, Part B (Career Offenders 
and Criminal Livelihood); and Chapter Five, Part K (Departures)'' and 
inserting: ``and Chapter Four, Part B (Career Offenders and Criminal 
Livelihood). Additionally, Chapter Six, Part A (Consideration of 
Factors in 18 U.S.C. 3553(a)) sets forth other factors that a court may 
nevertheless consider in determining the appropriate sentence in a 
particular case pursuant to 18 U.S.C. 3553(a)''.
    The Commentary to Sec.  2A1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking the following:
    ``Imposition of Life Sentence.--
    (A) Offenses Involving Premeditated Killing.--In the case of 
premeditated killing, life imprisonment is the appropriate sentence if 
a sentence of death is not imposed. A downward departure would not be 
appropriate in such a case. A downward departure from a mandatory 
statutory term of life imprisonment is permissible only in cases in 
which the government files a motion for a downward departure for the 
defendant's substantial assistance, as provided in 18 U.S.C. 3553(e).
    (B) Felony Murder.--If the defendant did not cause the death 
intentionally or knowingly, a downward departure may be warranted. For 
example, a downward departure may be warranted if in robbing a bank, 
the defendant merely passed a note to the teller, as a result of which 
the teller had a heart attack and died. The extent of the departure 
should be based upon the defendant's state of mind (e.g., recklessness 
or negligence), the degree of risk inherent in the conduct, and the 
nature of the underlying offense conduct. However, departure below the 
minimum guideline sentence provided for second degree murder in Sec.  
2A1.2 (Second Degree Murder) is not likely to be appropriate. Also, 
because death obviously is an aggravating factor, it necessarily would 
be inappropriate to impose a sentence at a level below that which the 
guideline for the underlying offense requires in the absence of 
death.'';

[[Page 89179]]

    and inserting the following:
    ``Offenses Involving Premeditated Killing.--In the case of 
premeditated killing, life imprisonment is the appropriate sentence if 
a sentence of death is not imposed. If a mandatory statutory term of 
life imprisonment applies, a lesser term of imprisonment is permissible 
only in cases in which the government files a motion pertaining to the 
defendant's substantial assistance, as provided in 18 U.S.C. 
3553(e).''.
    The Commentary to Sec.  2A1.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Defendant's Intent in Felony Murder Case.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the defendant did not intentionally or knowingly cause death in 
the course of the commission of a felony (e.g., defendant passed a note 
to a bank teller in the course of a robbery causing the teller to have 
a heart attack) may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2A1.2 is amended--
    by striking the Commentary captioned ``Application Note'' in its 
entirety as follows:
    ``Application Note:
    1. Upward Departure Provision.--If the defendant's conduct was 
exceptionally heinous, cruel, brutal, or degrading to the victim, an 
upward departure may be warranted. See Sec.  5K2.8 (Extreme 
Conduct).'';
    and by inserting at the end the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Extreme Conduct.--In determining the appropriate sentence to 
impose pursuant to 18 U.S.C. 3553(a), evidence that the defendant's 
conduct was unusually heinous, cruel, brutal, or degrading to the 
victim may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2A2.1 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:
    ``2. Upward Departure Provision.--If the offense created a 
substantial risk of death or serious bodily injury to more than one 
person, an upward departure may be warranted.''.
    The Commentary to Sec.  2A2.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Substantial Risk of Death or Serious Bodily Injury to Multiple 
Victims.--In determining the appropriate sentence to impose pursuant to 
18 U.S.C. 3553(a), evidence that the offense created a substantial risk 
of death or serious bodily injury to more than one person may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2A2.4 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. Upward Departure Provision.--The base offense level does not 
assume any significant disruption of governmental functions. In 
situations involving such disruption, an upward departure may be 
warranted. See Sec.  5K2.7 (Disruption of Governmental Function).''.
    The Commentary to Sec.  2A2.4 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Disruption of Governmental Function.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the defendant's conduct resulted in a significant disruption of a 
governmental function may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2A3.1 captioned ``Application Notes'' is 
amended by striking Note 6 as follows:
    ``6. Upward Departure Provision.--If a victim was sexually abused 
by more than one participant, an upward departure may be warranted. See 
Sec.  5K2.8 (Extreme Conduct).''.
    The Commentary to Sec.  2A3.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Victim Sexually Abused by More Than One Participant.--In 
determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a), evidence that a victim was sexually abused by more than one 
participant may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended by striking Note 6 as follows:
    ``6. Upward Departure Consideration.--There may be cases in which 
the offense level determined under this guideline substantially 
understates the seriousness of the offense. In such cases, an upward 
departure may be warranted. For example, an upward departure may be 
warranted if the defendant committed the criminal sexual act in 
furtherance of a commercial scheme such as pandering, transporting 
persons for the purpose of prostitution, or the production of 
pornography.''.
    The Commentary to Sec.  2A3.2 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Underrepresentation of Seriousness of the Offense.--In 
determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a), evidence that the offense level determined under this 
guideline substantially underrepresents the seriousness of the offense 
(e.g., the defendant committed the criminal sexual act in furtherance 
of a commercial scheme such as pandering, transporting persons for the 
purpose of prostitution, or the production of pornography) may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2A3.6 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Upward Departure.--In a case in which the guideline sentence 
is determined under subsection (a), a sentence above the minimum term 
required by 18 U.S.C. 2250(d) is an upward departure from the guideline 
sentence. A departure may be warranted, for example, in a case 
involving a sex offense committed against a minor or if the offense 
resulted in serious bodily injury to a minor.''.
    The Commentary to Sec.  2A3.6 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Characteristic:
    1. Sex Offense Against or Serious Bodily Injury to a Minor.--In 
determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a), evidence that a sex offense was committed against a minor, or 
resulted in serious bodily injury to a minor, may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2A5.3 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:
    ``2. If the conduct intentionally or recklessly endangered the 
safety of the aircraft or passengers, an upward departure may be 
warranted.''.
    The Commentary to Sec.  2A5.3 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Endangering the Safety of the Aircraft or Passengers.--In 
determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a), evidence that the conduct intentionally or recklessly 
endangered the safety of the aircraft or passengers may be relevant. 
See Sec. Sec.  6A1.1; 6A1.3.''.

[[Page 89180]]

    The Commentary to Sec.  2A6.1 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Departure Provisions.--
    (A) In General.--The Commission recognizes that offenses covered by 
this guideline may include a particularly wide range of conduct and 
that it is not possible to include all of the potentially relevant 
circumstances in the offense level. Factors not incorporated in the 
guideline may be considered by the court in determining whether a 
departure from the guidelines is warranted. See Chapter Five, Part K 
(Departures).
    (B) Multiple Threats, False Liens or Encumbrances, or Victims; 
Pecuniary Harm.--If the offense involved (i) substantially more than 
two threatening communications to the same victim, (ii) a prolonged 
period of making harassing communications to the same victim, (iii) 
substantially more than two false liens or encumbrances against the 
real or personal property of the same victim, (iv) multiple victims, or 
(v) substantial pecuniary harm to a victim, an upward departure may be 
warranted.''.
    The Commentary to Sec.  2A6.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Multiple Victims or Multiple Harms to Same Victim.--In 
determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a), evidence that the offense involved (A) substantially more than 
two threatening communications to the same victim, (B) a prolonged 
period of making harassing communications to the same victim, (C) 
substantially more than two false liens or encumbrances against the 
real or personal property of the same victim, (D) multiple victims, or 
(E) substantial pecuniary harm to a victim, may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2A6.2 captioned ``Application Notes'' is 
amended by striking Note 5 as follows:
    ``5. If the defendant received an enhancement under subsection 
(b)(1) but that enhancement does not adequately reflect the extent or 
seriousness of the conduct involved, an upward departure may be 
warranted. For example, an upward departure may be warranted if the 
defendant stalked the victim on many occasions over a prolonged period 
of time.''.
    The Commentary to Sec.  2A6.2 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factor Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense level determined under this guideline does not 
adequately reflect the extent or seriousness of the conduct involved 
(e.g., that the defendant stalked the victim on many occasions over a 
prolonged period of time) may be relevant. See Sec. Sec.  6A1.1; 
6A1.3.''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended--
    in Note 8(A) by striking ``If, in a particular case, however, more 
than one of the enumerated factors applied, an upward departure may be 
warranted.'';
    in Note 14(B)(i) by striking ``Sec.  8A1.1 (Applicability of 
Chapter Eight)'' and inserting ``Sec.  9A1.1 (Applicability of Chapter 
Nine)'';
    and by striking Note 21 as follows:
    ``21. Departure Considerations.--
    (A) Upward Departure Considerations.--There may be cases in which 
the offense level determined under this guideline substantially 
understates the seriousness of the offense. In such cases, an upward 
departure may be warranted. The following is a non-exhaustive list of 
factors that the court may consider in determining whether an upward 
departure is warranted:
    (i) A primary objective of the offense was an aggravating, non-
monetary objective. For example, a primary objective of the offense was 
to inflict emotional harm.
    (ii) The offense caused or risked substantial non-monetary harm. 
For example, the offense caused physical harm, psychological harm, or 
severe emotional trauma, or resulted in a substantial invasion of a 
privacy interest (through, for example, the theft of personal 
information such as medical, educational, or financial records). An 
upward departure would be warranted, for example, in an 18 U.S.C. 1030 
offense involving damage to a protected computer, if, as a result of 
that offense, death resulted. An upward departure also would be 
warranted, for example, in a case involving animal enterprise terrorism 
under 18 U.S.C. 43, if, in the course of the offense, serious bodily 
injury or death resulted, or substantial scientific research or 
information were destroyed. Similarly, an upward departure would be 
warranted in a case involving conduct described in 18 U.S.C. 670 if the 
offense resulted in serious bodily injury or death, including serious 
bodily injury or death resulting from the use of the pre-retail medical 
product.
    (iii) The offense involved a substantial amount of interest of any 
kind, finance charges, late fees, penalties, amounts based on an 
agreed-upon return or rate of return, or other similar costs, not 
included in the determination of loss for purposes of subsection 
(b)(1).
    (iv) The offense created a risk of substantial loss beyond the loss 
determined for purposes of subsection (b)(1), such as a risk of a 
significant disruption of a national financial market.
    (v) In a case involving stolen information from a `protected 
computer', as defined in 18 U.S.C. 1030(e)(2), the defendant sought the 
stolen information to further a broader criminal purpose.
    (vi) In a case involving access devices or unlawfully produced or 
unlawfully obtained means of identification:
    (I) The offense caused substantial harm to the victim's reputation, 
or the victim suffered a substantial inconvenience related to repairing 
the victim's reputation.
    (II) An individual whose means of identification the defendant used 
to obtain unlawful means of identification is erroneously arrested or 
denied a job because an arrest record has been made in that 
individual's name.
    (III) The defendant produced or obtained numerous means of 
identification with respect to one individual and essentially assumed 
that individual's identity.
    (B) Upward Departure for Debilitating Impact on a Critical 
Infrastructure.--An upward departure would be warranted in a case in 
which subsection (b)(19)(A)(iii) applies and the disruption to the 
critical infrastructure(s) is so substantial as to have a debilitating 
impact on national security, national economic security, national 
public health or safety, or any combination of those matters.
    (C) Downward Departure Consideration.--There may be cases in which 
the offense level determined under this guideline substantially 
overstates the seriousness of the offense. In such cases, a downward 
departure may be warranted.
    For example, a securities fraud involving a fraudulent statement 
made publicly to the market may produce an aggregate loss amount that 
is substantial but diffuse, with relatively small loss amounts suffered 
by a relatively large number of victims. In such a case, the loss table 
in subsection (b)(1) and the victims table in subsection (b)(2) may 
combine to produce an offense level that substantially overstates the 
seriousness of the offense. If so, a downward departure may be 
warranted.

[[Page 89181]]

    (D) Downward Departure for Major Disaster or Emergency Victims.--If 
(i) the minimum offense level of level 12 in subsection (b)(12) 
applies; (ii) the defendant sustained damage, loss, hardship, or 
suffering caused by a major disaster or an emergency as those terms are 
defined in 42 U.S.C. 5122; and (iii) the benefits received illegally 
were only an extension or overpayment of benefits received 
legitimately, a downward departure may be warranted.''.
    The Commentary to Sec.  2B1.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The offense level determined under this guideline substantially 
understates the seriousness of the offense.
    (B) A primary objective of the offense was an aggravating, non-
monetary objective (e.g., to inflict emotional harm).
    (C) The offense caused or risked substantial non-monetary harm 
(e.g., physical harm, psychological harm, or severe emotional trauma, 
or resulted in a substantial invasion of a privacy interest).
    (D) The offense involved a substantial amount of interest of any 
kind, finance charges, late fees, penalties, amounts based on an 
agreed-upon return or rate of return, or other similar costs, not 
included in the determination of loss.
    (E) The offense created a risk of substantial loss beyond the loss 
determination, such as a significant disruption of a national financial 
market.
    (F) The offense caused substantial harm to the victim's reputation, 
or the victim suffered a substantial inconvenience related to repairing 
the victim's reputation.
    (G) The application of a particular enhancement is premised upon 
alternative factors and more than one of the enumerated factors applied 
(e.g., Sec.  2B1.1(b)(9)).
    (H) The information stolen as part of the offense was stolen in 
furtherance of a broader criminal purpose.
    See Sec. Sec.  6A1.1; 6A1.3.
    2. Mitigating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The offense level determined under this guideline substantially 
overstates the seriousness of the offense.
    (B) The offense produces an aggregate loss amount that is 
substantial but diffuse, with relatively small loss amounts suffered by 
a relatively large number of victims.
    (C) The defendant had little or no gain as related to the loss.
    (D) The defendant took steps (such as voluntary reporting or 
cessation, or payment of restitution) to mitigate the harm from the 
offense.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2B1.5 captioned ``Application Notes'' is 
amended by striking Note 9 as follows:
    ``9. Upward Departure Provision.--There may be cases in which the 
offense level determined under this guideline substantially understates 
the seriousness of the offense. In such cases, an upward departure may 
be warranted. For example, an upward departure may be warranted if (A) 
in addition to cultural heritage resources or paleontological 
resources, the offense involved theft of, damage to, or destruction of, 
items that are not cultural heritage resources (such as an offense 
involving the theft from a national cemetery of lawnmowers and other 
administrative property in addition to historic gravemarkers or other 
cultural heritage resources) or paleontological resources; or (B) the 
offense involved a cultural heritage resource that has profound 
significance to cultural identity (e.g., the Statue of Liberty or the 
Liberty Bell).''.
    The Commentary to Sec.  2B1.5 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Cultural Heritage Resources.--In determining the appropriate 
sentence to impose pursuant to 18 U.S.C. 3553(a), evidence of the 
following may be relevant:
    (A) The offense level determined under this guideline substantially 
understates the seriousness of the offense may be relevant.
    (B) The offense also involved theft of, damage to, or destruction 
of, items that are not cultural heritage resources (such as an offense 
involving the theft from a national cemetery of lawnmowers and other 
administrative property in addition to historic gravemarkers or other 
cultural heritage resources) or paleontological resources.
    (C) The offense involved a cultural heritage resource that has 
profound significance to cultural identity (e.g., the Statue of Liberty 
or the Liberty Bell).
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2B2.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Characteristic:
    1. Use of a Weapon.--In determining the appropriate sentence to 
impose pursuant to 18 U.S.C. 3553(a), evidence that the offense 
involved the use of a weapon may be relevant. See Sec. Sec.  6A1.1; 
6A1.3.''.
    The Commentary to Sec.  2B2.1 captioned ``Background'' is amended 
by striking ``Weapon use would be a ground for upward departure.''.
    The Commentary to Sec.  2B3.1 captioned ``Application Notes'' is 
amended--
    by striking Note 5 as follows:
    ``5. If the defendant intended to murder the victim, an upward 
departure may be warranted; see Sec.  2A2.1 (Assault with Intent to 
Commit Murder; Attempted Murder).'';
    and by renumbering Note 6 as Note 5.
    The Commentary to Sec.  2B3.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Intent to Murder Victim.--In determining the appropriate 
sentence to impose pursuant to 18 U.S.C. 3553(a), evidence that the 
defendant intended to murder the victim may be relevant. See Sec. Sec.  
6A1.1; 6A1.3.''.
    The Commentary to Sec.  2B3.2 captioned ``Application Notes'' is 
amended by striking Notes 7 and 8 as follows:
    ``7. If the offense involved the threat of death or serious bodily 
injury to numerous victims (e.g., in the case of a plan to derail a 
passenger train or poison consumer products), an upward departure may 
be warranted.
    8. If the offense involved organized criminal activity, or a threat 
to a family member of the victim, an upward departure may be 
warranted.''.
    The Commentary to Sec.  2B3.2 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Threat of Death or Serious Bodily Injury to Numerous Victims.--
In determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a), evidence that the offense involved the threat of death or 
serious bodily injury to numerous victims (e.g., in the case of a plan 
to derail a passenger train or poison consumer products) may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.
    2. Organized Criminal Activity.--In determining the appropriate 
sentence to impose pursuant to 18 U.S.C. 3553(a),

[[Page 89182]]

evidence that the offense involved organized criminal activity may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    Section 2B4.1(c)(1) is amended by striking ``Sec.  8C2.4'' and 
inserting ``Sec.  9C2.4''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended by striking Note 5 as follows:
    ``5. Departure Considerations.--If the offense level determined 
under this guideline substantially understates or overstates the 
seriousness of the offense, a departure may be warranted. The following 
is a non-exhaustive list of factors that the court may consider in 
determining whether a departure may be warranted:
    (A) The offense involved substantial harm to the reputation of the 
copyright or trademark owner.
    (B) The offense was committed in connection with, or in furtherance 
of, the criminal activities of a national, or international, organized 
criminal enterprise.
    (C) The method used to calculate the infringement amount is based 
upon a formula or extrapolation that results in an estimated amount 
that may substantially exceed the actual pecuniary harm to the 
copyright or trademark owner.
    (D) The offense resulted in death or serious bodily injury.''.
    The Commentary to Sec.  2B5.3 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Additional Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The offense involved substantial harm to the reputation of the 
copyright or trademark owner.
    (B) The offense was committed in connection with, or in furtherance 
of, the criminal activities of a national, or international, organized 
criminal enterprise.
    (C) The method used to calculate the infringement amount is based 
upon a formula or extrapolation that results in an estimated amount 
that may substantially exceed the actual pecuniary harm to the 
copyright or trademark owner.
    (D) The offense resulted in death or serious bodily injury.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    Section 2C1.1(d)(1) is amended by striking ``Sec.  8C2.4'' and 
inserting ``Sec.  9C2.4''.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended--
    in Note 5 by striking ``Chapter Three, Parts A-D'' and inserting 
``Chapter Three, Parts A-E'';
    and by striking Note 7 as follows:
    ``7. Upward Departure Provisions.--In some cases the monetary value 
of the unlawful payment may not be known or may not adequately reflect 
the seriousness of the offense. For example, a small payment may be 
made in exchange for the falsification of inspection records for a 
shipment of defective parachutes or the destruction of evidence in a 
major narcotics case. In part, this issue is addressed by the 
enhancements in Sec.  2C1.1(b)(2) and (c)(1), (2), and (3). However, in 
cases in which the seriousness of the offense is still not adequately 
reflected, an upward departure is warranted. See Chapter Five, Part K 
(Departures).
    In a case in which the court finds that the defendant's conduct was 
part of a systematic or pervasive corruption of a governmental 
function, process, or office that may cause loss of public confidence 
in government, an upward departure may be warranted. See Sec.  5K2.7 
(Disruption of Governmental Function).''.
    The Commentary to Sec.  2C1.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Monetary Value of the Unlawful Payment.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the monetary value of the unlawful payment is not known or 
evidence that the monetary value of the unlawful payment does not 
adequately reflect the seriousness of the offense may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.
    2. Systematic or Pervasive Corruption of Governmental Function.--In 
determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a), evidence that the defendant's conduct was part of a systematic 
or pervasive corruption of a governmental function, process, or office 
that may cause loss of public confidence in government may be relevant. 
See Sec. Sec.  6A1.1; 6A1.3.''.
    Section 2C1.2(c)(1) is amended by striking ``Sec.  8C2.4'' and 
inserting ``Sec.  9C2.4''.
    The Commentary to Sec.  2C1.8 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Departure Provision.--In a case in which the defendant's 
conduct was part of a systematic or pervasive corruption of a 
governmental function, process, or office that may cause loss of public 
confidence in government, an upward departure may be warranted.''.
    The Commentary to Sec.  2C1.8 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Systematic or Pervasive Corruption of Governmental Function.--In 
determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a), evidence that the defendant's conduct was part of a systematic 
or pervasive corruption of a governmental function, process, or office 
that may cause loss of public confidence in government may be relevant. 
See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended--
    in Note 2 by striking the following:
    ``An upward departure nonetheless may be warranted when the mixture 
or substance counted in the Drug Quantity Table is combined with other, 
non-countable material in an unusually sophisticated manner in order to 
avoid detection.'';
    in Note 10 by striking the following:
    ``In the case of liquid LSD (LSD that has not been placed onto a 
carrier medium), using the weight of the LSD alone to calculate the 
offense level may not adequately reflect the seriousness of the 
offense. In such a case, an upward departure may be warranted.'';
    in Note 18(A) by striking ``In some cases, the enhancement under 
subsection (b)(14)(A) may not account adequately for the seriousness of 
the environmental harm or other threat to public health or safety 
(including the health or safety of law enforcement and cleanup 
personnel). In such cases, an upward departure may be warranted.'';
    in Note 22 by striking the following:
    ``Application of Subsection (e)(1).--
    (A) Definition.--For purposes of this guideline, `sexual offense' 
means a `sexual act' or `sexual contact' as those terms are defined in 
18 U.S.C. 2246(2) and (3), respectively.
    (B) Upward Departure Provision.--If the defendant committed a 
sexual offense against more than one individual, an upward departure 
would be warranted.'',
    and inserting the following:
    ``Application of Subsection (e)(1).--For purposes of this 
guideline, `sexual offense' means a `sexual act' or `sexual contact' as 
those terms are defined in 18 U.S.C. 2246(2) and (3), respectively.'';
    in Note 24 by striking ``a lower sentence imposed (including a 
downward departure)'' and inserting ``a lower sentence imposed'';
    and by striking Note 27 as follows:
    ``27. Departure Considerations.--
    (A) Downward Departure Based on Drug Quantity in Certain Reverse 
Sting Operations.--If, in a reverse sting (an

[[Page 89183]]

operation in which a government agent sells or negotiates to sell a 
controlled substance to a defendant), the court finds that the 
government agent set a price for the controlled substance that was 
substantially below the market value of the controlled substance, 
thereby leading to the defendant's purchase of a significantly greater 
quantity of the controlled substance than his available resources would 
have allowed him to purchase except for the artificially low price set 
by the government agent, a downward departure may be warranted.
    (B) Upward Departure Based on Drug Quantity.--In an extraordinary 
case, an upward departure above offense level 38 on the basis of drug 
quantity may be warranted. For example, an upward departure may be 
warranted where the quantity is at least ten times the minimum quantity 
required for level 38. Similarly, in the case of a controlled substance 
for which the maximum offense level is less than level 38, an upward 
departure may be warranted if the drug quantity substantially exceeds 
the quantity for the highest offense level established for that 
particular controlled substance.
    (C) Upward Departure Based on Unusually High Purity.--Trafficking 
in controlled substances, compounds, or mixtures of unusually high 
purity may warrant an upward departure, except in the case of PCP, 
amphetamine, methamphetamine, hydrocodone, or oxycodone for which the 
guideline itself provides for the consideration of purity (see the 
footnote to the Drug Quantity Table). The purity of the controlled 
substance, particularly in the case of heroin, may be relevant in the 
sentencing process because it is probative of the defendant's role or 
position in the chain of distribution. Since controlled substances are 
often diluted and combined with other substances as they pass down the 
chain of distribution, the fact that a defendant is in possession of 
unusually pure narcotics may indicate a prominent role in the criminal 
enterprise and proximity to the source of the drugs. As large 
quantities are normally associated with high purities, this factor is 
particularly relevant where smaller quantities are involved.
    (D) Departure Based on Potency of Synthetic Cathinones.--In 
addition to providing converted drug weights for specific controlled 
substances and groups of substances, the Drug Conversion Tables provide 
converted drug weights for certain classes of controlled substances, 
such as synthetic cathinones. In the case of a synthetic cathinone that 
is not specifically referenced in this guideline, the converted drug 
weight for the class should be used to determine the appropriate 
offense level. However, there may be cases in which a substantially 
lesser or greater quantity of a synthetic cathinone is needed to 
produce an effect on the central nervous system similar to the effect 
produced by a typical synthetic cathinone in the class, such as 
methcathinone or alpha-PVP. In such a case, a departure may be 
warranted. For example, an upward departure may be warranted in cases 
involving MDPV, a substance of which a lesser quantity is usually 
needed to produce an effect on the central nervous system similar to 
the effect produced by a typical synthetic cathinone. In contrast, a 
downward departure may be warranted in cases involving methylone, a 
substance of which a greater quantity is usually needed to produce an 
effect on the central nervous system similar to the effect produced by 
a typical synthetic cathinone.
    (E) Departures for Certain Cases involving Synthetic 
Cannabinoids.--
    (i) Departure Based on Concentration of Synthetic Cannabinoids.--
Synthetic cannabinoids are manufactured as powder or crystalline 
substances. The concentrated substance is then usually sprayed on or 
soaked into a plant or other base material, and trafficked as part of a 
mixture. Nonetheless, there may be cases in which the substance 
involved in the offense is a synthetic cannabinoid not combined with 
any other substance. In such a case, an upward departure would be 
warranted.
    There also may be cases in which the substance involved in the 
offense is a mixture containing a synthetic cannabinoid diluted with an 
unusually high quantity of base material. In such a case, a downward 
departure may be warranted.
    (ii) Downward Departure Based on Potency of Synthetic 
Cannabinoids.--In the case of a synthetic cannabinoid that is not 
specifically referenced in this guideline, the converted drug weight 
for the class should be used to determine the appropriate offense 
level. However, there may be cases in which a substantially greater 
quantity of a synthetic cannabinoid is needed to produce an effect on 
the central nervous system similar to the effect produced by a typical 
synthetic cannabinoid in the class, such as JWH-018 or AM-2201. In such 
a case, a downward departure may be warranted.''.
    The Commentary to Sec.  2D1.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) Sophisticated Manner.--The mixture or substance counted in the 
Drug Quantity Table is combined with other, non-countable material in 
an unusually sophisticated manner in order to avoid detection.
    (B) Drug Quantity.--The drug quantity used to determine the base 
offense level substantially exceeds the quantity for the highest 
offense level established for that particular controlled substance.
    (C) Unusual High Purity.--The offense involved trafficking in 
controlled substances, compounds, or mixtures of unusually high purity, 
except in the case of PCP, amphetamine, methamphetamine, hydrocodone, 
or oxycodone, for which the guideline itself provides for the 
consideration of purity (see the Notes to Drug Quantity Table).
    (D) Environmental Harm or Other Threat to Public Health or 
Safety.--The seriousness of the environmental harm or other threat to 
public health or safety (including the health or safety of law 
enforcement and cleanup personnel) is understated based upon scope or 
impact of the discharge, emission, or release of a hazardous or toxic 
substance.
    (E) LSD.--The potential harm of liquid D-Lysergic Acid 
Diethylamide/Lysergide (LSD) (i.e., LSD that has not been placed onto a 
carrier medium) is understated as a result of using the weight of the 
LSD alone to calculate the offense level.
    (F) Potency of Synthetic Cathinone.--The potency of a synthetic 
cathinone is understated because a substantially lesser quantity of a 
synthetic cathinone is needed to produce an effect on the central 
nervous system similar to the effect produced by a typical synthetic 
cathinone in the class.
    (G) Unusually High Concentration of Synthetic Cannabinoid.--A 
synthetic cannabinoid is sprayed on or soaked into a plant or other 
base material in an unusually high concentration or is trafficked in a 
pure form as opposed to being combined with another substance.
    See Sec. Sec.  6A1.1; 6A1.3.
    2. Mitigating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) Reversed Sting.--The offense involved a reverse sting (i.e., an 
operation in which a government agent

[[Page 89184]]

sells or negotiates to sell a controlled substance to a defendant) in 
which the government agent set a price for the controlled substance 
that was substantially below the market value resulting in the 
defendant purchasing a significantly greater quantity than available 
resources would have otherwise allowed.
    (B) Potency of Synthetic Cathinone or Synthetic Cannabinoid.--The 
potency of a synthetic cathinone or synthetic cannabinoid is overstated 
because a substantially greater quantity of the synthetic cathinone or 
synthetic cannabinoid is needed to produce an effect on the central 
nervous system similar to the effect produced by a typical synthetic 
cathinone or synthetic cannabinoid in the class.
    (C) Synthetic Cannabinoid Diluted.--The substance involved in the 
offense is a mixture containing a synthetic cannabinoid diluted with an 
unusually high quantity of base material.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2D1.5 captioned ``Application Notes'' is 
amended--
    by striking Note 2 as follows:
    ``2. If as part of the enterprise the defendant sanctioned the use 
of violence, or if the number of persons managed by the defendant was 
extremely large, an upward departure may be warranted.'';
    and by renumbering Notes 3 and 4 as Notes 2 and 3, respectively.
    The Commentary to Sec.  2D1.5 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the defendant sanctioned the use of violence as part of the 
enterprise, or that the number of persons managed by the defendant was 
extremely large, may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2D1.7 is amended--
    by striking the Commentary captioned ``Application Note'' in its 
entirety as follows:
    ``Application Note:
    1. The typical case addressed by this guideline involves small-
scale trafficking in drug paraphernalia (generally from a retail 
establishment that also sells items that are not unlawful). In a case 
involving a large-scale dealer, distributor, or manufacturer, an upward 
departure may be warranted. Conversely, where the offense was not 
committed for pecuniary gain (e.g., transportation for the defendant's 
personal use), a downward departure may be warranted.'';
    and by inserting at the end the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factor for Large-Scale Trafficking.--The typical 
case addressed by this guideline involves small-scale trafficking in 
drug paraphernalia (generally from a retail establishment that also 
sells items that are not unlawful). In determining the appropriate 
sentence to impose pursuant to 18 U.S.C. 3553(a), evidence that the 
offense involved a large-scale dealer, distributor, or manufacturer may 
be relevant. See Sec. Sec.  6A1.1; 6A1.3.
    2. Offense Not Committed for Pecuniary Gain.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense was not committed for pecuniary gain (e.g., 
transportation for the defendant's personal use) may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2D1.11 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking subparagraph (C) as follows:
    ``(C) Upward Departure.--In a case involving two or more chemicals 
used to manufacture different controlled substances, or to manufacture 
one controlled substance by different manufacturing processes, an 
upward departure may be warranted if the offense level does not 
adequately address the seriousness of the offense.'';
    and in Note 4 by striking ``In some cases, the enhancement under 
subsection (b)(3) may not adequately account for the seriousness of the 
environmental harm or other threat to public health or safety 
(including the health or safety of law enforcement and cleanup 
personnel). In such cases, an upward departure may be warranted.''.
    The Commentary to Sec.  2D1.11 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The offense level determined under this guideline does not 
adequately address the seriousness of the offense because the offense 
involved two or more chemicals used to manufacture different controlled 
substances, or to manufacture one controlled substance by different 
manufacturing processes.
    (B) The seriousness of the environmental harm or other threat to 
public health or safety (including the health or safety of law 
enforcement and cleanup personnel) is understated based upon scope or 
impact of the discharge, emission, or release of a hazardous or toxic 
substance.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2D1.12 captioned ``Application Notes'' is 
amended--
    by striking Note 1 as follows:
    ``1. If the offense involved the large-scale manufacture, 
distribution, transportation, exportation, or importation of prohibited 
flasks, equipment, chemicals, products, or material, an upward 
departure may be warranted.'';
    by redesignating Notes 2, 3, and 4 as Notes 1, 2, and 3, 
respectively;
    and in Note 2 (as so redesignated) by striking ``In some cases, the 
enhancement under subsection (b)(2) may not adequately account for the 
seriousness of the environmental harm or other threat to public health 
or safety (including the health or safety of law enforcement and 
cleanup personnel). In such cases, an upward departure may be 
warranted.''.
    The Commentary to Sec.  2D1.12 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The offense involved the large-scale manufacture, distribution, 
transportation, exportation, or importation of prohibited flasks, 
equipment, chemicals, products, or material.
    (B) The seriousness of the environmental harm or other threat to 
public health or safety (including the health or safety of law 
enforcement and cleanup personnel) is understated based upon scope or 
impact of the discharge, emission, or release of a hazardous or toxic 
substance.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2D2.1 is amended--
    by striking the Commentary captioned ``Application Note'' in its 
entirety as follows:
    ``Application Note:
    1. The typical case addressed by this guideline involves possession 
of a controlled substance by the defendant for the defendant's own 
consumption.

[[Page 89185]]

Where the circumstances establish intended consumption by a person 
other than the defendant, an upward departure may be warranted.'';
    and by inserting before the Commentary captioned ``Background'' the 
following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Intended Consumption by Another.--The typical case addressed by 
this guideline involves possession of a controlled substance by the 
defendant for the defendant's own consumption. In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
establishing intended consumption by a person other than the defendant 
may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2D2.3 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Numerous Persons.--In determining the appropriate sentence to 
impose pursuant to 18 U.S.C. 3553(a), evidence that the offense 
resulted in the death or serious bodily injury of a large number of 
persons may be relevant. See Sec. Sec.  6A1.1; 6A1.3.
    2. Risk to Passengers.--This guideline assumes that the offense 
involved the operation of a common carrier carrying a number of 
passengers (e.g., a bus). In determining the appropriate sentence to 
impose pursuant to 18 U.S.C. 3553(a), evidence that no or only a few 
passengers were placed at risk may be relevant. See Sec. Sec.  6A1.1; 
6A1.3.''.
    The Commentary to Sec.  2D2.3 captioned ``Background'' is amended 
by striking ``The offense levels assume that the offense involved the 
operation of a common carrier carrying a number of passengers, e.g., a 
bus. If no or only a few passengers were placed at risk, a downward 
departure may be warranted. If the offense resulted in the death or 
serious bodily injury of a large number of persons, such that the 
resulting offense level under subsection (b) would not adequately 
reflect the seriousness of the offense, an upward departure may be 
warranted.''.
    The Commentary to Sec.  2E1.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking ``Chapter Three, Parts A, B, C, and D'' and 
inserting ``Chapter Three, Parts A, B, C, D, and E'';
    and in Note 4 by striking ``If this treatment produces an anomalous 
result in a particular case, a guideline departure may be warranted.''.
    The Commentary to Sec.  2E1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Chapter Three, Parts A, B, C, and D'' 
and inserting ``Chapter Three, Parts A, B, C, D, and E''.
    The Commentary to Sec.  2E3.1 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:
    ``2. Upward Departure Provision.--The base offense levels provided 
for animal fighting ventures in subsection (a)(1) and (a)(3) reflect 
that an animal fighting venture involves one or more violent fights 
between animals and that a defeated animal often is severely injured in 
the fight, dies as a result of the fight, or is killed afterward. 
Nonetheless, there may be cases in which the offense level determined 
under this guideline substantially understates the seriousness of the 
offense. In such a case, an upward departure may be warranted. For 
example, an upward departure may be warranted if (A) the offense 
involved extraordinary cruelty to an animal beyond the violence 
inherent in such a venture (such as by killing an animal in a way that 
prolongs the suffering of the animal); or (B) the offense involved 
animal fighting on an exceptional scale (such as an offense involving 
an unusually large number of animals).''.
    The Commentary to Sec.  2E3.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Extraordinary Cruelty or Exceptional Scale.--The base offense 
levels provided for animal fighting ventures in subsections (a)(1) and 
(a)(3) reflect that an animal fighting venture involves one or more 
violent fights between animals and that a defeated animal often is 
severely injured in the fight, dies as a result of the fight, or is 
killed afterward. In determining the appropriate sentence to impose 
pursuant to 18 U.S.C. 3553(a), evidence of the following may be 
relevant:
    (A) The offense involved extraordinary cruelty to an animal beyond 
the violence inherent in such a venture (such as by killing an animal 
in a way that prolongs the suffering of the animal).
    (B) The offense involved animal fighting on an exceptional scale 
(such as an offense involving an unusually large number of animals).
    See Sec. Sec.  6A1.1; 6A1.3.''.
    Section 2E5.1(c)(1) is amended by striking ``Sec.  8C2.4'' and 
inserting ``Sec.  9C2.4''.
    The Commentary to Sec.  2G1.1 captioned ``Application Notes'' is 
amended--
    in Note 2 by striking ``Subsection (b)(1) provides an enhancement 
for fraud or coercion that occurs as part of the offense and 
anticipates no bodily injury. If bodily injury results, an upward 
departure may be warranted. See Chapter Five, Part K (Departures)'' and 
inserting ``Subsection (b)(1) provides an enhancement for fraud or 
coercion that occurs as part of the offense'';
    and by striking Note 6 as follows:
    ``6. Upward Departure Provision.--If the offense involved more than 
ten victims, an upward departure may be warranted.''.
    The Commentary to Sec.  2G1.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense resulted in bodily injury or involved more than ten 
victims may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2G1.3 captioned ``Application Notes'' is 
amended by striking Note 7 as follows:
    ``7. Upward Departure Provision.--If the offense involved more than 
ten minors, an upward departure may be warranted.''.
    The Commentary to Sec.  2G1.3 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. More than Ten Minors.--In determining the appropriate sentence 
to impose pursuant to 18 U.S.C. 3553(a), evidence that the offense 
involved more than ten minors may be relevant. See Sec. Sec.  6A1.1; 
6A1.3.''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended by striking Note 8 as follows:
    ``8. Upward Departure Provision.--An upward departure may be 
warranted if the offense involved more than 10 minors.''.
    The Commentary to Sec.  2G2.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. More than Ten Minors.--In determining the appropriate sentence 
to impose pursuant to 18 U.S.C. 3553(a), evidence that the offense 
involved more than ten minors may be relevant. See Sec. Sec.  6A1.1; 
6A1.3.''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended--
    in Note 6(B)(i) by striking ``If the number of images substantially 
underrepresents the number of minors depicted, an upward departure may 
be warranted.'';

[[Page 89186]]

    in Note 6(B)(ii) by striking ``If the length of the visual 
depiction is substantially more than 5 minutes, an upward departure may 
be warranted.'';
    and by striking Note 9 as follows:
    ``9. Upward Departure Provision.--If the defendant engaged in the 
sexual abuse or exploitation of a minor at any time (whether or not 
such abuse or exploitation occurred during the course of the offense or 
resulted in a conviction for such conduct) and subsection (b)(5) does 
not apply, an upward departure may be warranted. In addition, an upward 
departure may be warranted if the defendant received an enhancement 
under subsection (b)(5) but that enhancement does not adequately 
reflect the seriousness of the sexual abuse or exploitation 
involved.''.
    The Commentary to Sec.  2G2.2 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The number of images involved in the offense substantially 
underrepresents the number of minors depicted.
    (B) The length of any video, video-clip, movie, or visual depiction 
involved in the offense is substantially more than 5 minutes.
    (C) The defendant engaged in the sexual abuse or exploitation of a 
minor at any time (whether or not such abuse occurred during the course 
of the offense or resulted in a conviction for such conduct) and 
subsection (b)(5) did not apply or subsection (b)(5) did apply but the 
enhancement does not adequately reflect the seriousness of the abuse or 
exploitation.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2H2.1 is amended--
    by striking the Commentary captioned ``Application Note'' in its 
entirety as follows:
    ``Application Note:
    1. If the offense resulted in bodily injury or significant property 
damage, or involved corrupting a public official, an upward departure 
may be warranted. See Chapter Five, Part K (Departures).'';
    and by inserting before the Commentary captioned ``Background'' the 
following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Bodily Injury or Significant Property Damage.--In determining 
the appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), 
evidence that the offense resulted in bodily injury or significant 
property damage may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended by striking Note 5 as follows:
    ``5. Upward Departure.--There may be cases in which the offense 
level determined under this guideline substantially understates the 
seriousness of the offense. In such a case, an upward departure may be 
warranted. The following are examples of cases in which an upward 
departure may be warranted:
    (A) The offense involved personal information, means of 
identification, confidential phone records information, or tax return 
information of a substantial number of individuals.
    (B) The offense caused or risked substantial non-monetary harm 
(e.g., physical harm, psychological harm, or severe emotional trauma, 
or resulted in a substantial invasion of privacy interest) to 
individuals whose private or protected information was obtained.''.
    The Commentary to Sec.  2H3.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The offense involved personal information, means of 
identification, confidential phone records information, or tax return 
information of a substantial number of individuals.
    (B) The offense caused or risked substantial non-monetary harm 
(e.g., physical harm, psychological harm, or severe emotional trauma, 
or resulted in a substantial invasion of privacy interest) to 
individuals whose private or protected information was obtained.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2H4.1 captioned ``Application Notes'' is 
amended by striking Notes 3 and 4 as follows:
    ``3. If the offense involved the holding of more than ten victims 
in a condition of peonage or involuntary servitude, an upward departure 
may be warranted.
    4. In a case in which the defendant was convicted under 18 U.S.C. 
1589(b) or 1593A, a downward departure may be warranted if the 
defendant benefitted from participating in a venture described in those 
sections without knowing that (i.e., in reckless disregard of the fact 
that) the venture had engaged in the criminal activity described in 
those sections.''.
    The Commentary to Sec.  2H4.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense involved the holding of more than ten victims in a 
condition of peonage or involuntary servitude may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.
    2. Mitigating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that a defendant convicted under 18 U.S.C. 1589(b) or 1593A benefitted 
from participating in a venture described in those sections without 
knowing that (i.e., in reckless disregard of the fact that) the venture 
had engaged in the criminal activity described in those sections may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. Upward Departure Considerations.--If a weapon was used, or 
bodily injury or significant property damage resulted, an upward 
departure may be warranted. See Chapter Five, Part K (Departures). In a 
case involving an act of extreme violence (for example, retaliating 
against a government witness by throwing acid in the witness's face) or 
a particularly serious sex offense, an upward departure would be 
warranted.'';
    and by redesignating Note 5 as Note 4.
    The Commentary to Sec.  2J1.2 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense involved any of the following may be relevant:
    (A) A weapon was used, or bodily injury or significant property 
damage resulted.
    (B) The offense involved an act of extreme violence (for example, 
retaliating against a government witness by throwing acid in the 
witness's face) or a particularly serious sex offense.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2J1.3 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. If a weapon was used, or bodily injury or significant property 
damage

[[Page 89187]]

resulted, an upward departure may be warranted. See Chapter Five, Part 
K (Departures).'';
    and by redesignating Note 5 as Note 4.
    The Commentary to Sec.  2J1.3 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Weapon Used or Bodily Injury or Significant Property Damage 
Resulted.--In determining the appropriate sentence to impose pursuant 
to 18 U.S.C. 3553(a), evidence that a weapon was used, or bodily injury 
or significant property damage resulted, may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2J1.6 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. If a defendant is convicted of both the underlying offense and 
the failure to appear count, and the defendant committed additional 
acts of obstructive behavior (e.g., perjury) during the investigation, 
prosecution, or sentencing of the instant offense, an upward departure 
may be warranted. The upward departure will ensure an enhanced sentence 
for obstructive conduct for which no adjustment under Sec.  3C1.1 
(Obstructing or Impeding the Administration of Justice) is made because 
of the operation of the rules set out in Application Note 3.'';
    and by redesignating Note 5 as Note 4.
    The Commentary to Sec.  2J1.6 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Additional Acts of Obstructive Behavior.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a) in a case 
where the defendant is convicted of both the underlying offense and the 
failure to appear count, evidence that the defendant committed 
additional acts of obstructive behavior (e.g., perjury) during the 
investigation, prosecution, or sentencing of the instant offense may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2K1.3 captioned ``Application Notes'' is 
amended--
    by striking Note 10 as follows:
    ``10. An upward departure may be warranted in any of the following 
circumstances: (A) the quantity of explosive materials significantly 
exceeded 1000 pounds; (B) the explosive materials were of a nature more 
volatile or dangerous than dynamite or conventional powder explosives 
(e.g., plastic explosives); (C) the defendant knowingly distributed 
explosive materials to a person under twenty-one years of age; or (D) 
the offense posed a substantial risk of death or bodily injury to 
multiple individuals.'';
    by redesignating Note 11 as Note 10;
    and in Note 10 (as so redesignated) by striking ``However, where 
the defendant used or possessed a firearm or explosive to facilitate 
another firearms or explosives offense (e.g., the defendant used or 
possessed a firearm to protect the delivery of an unlawful shipment of 
explosives), an upward departure under Sec.  5K2.6 (Weapons and 
Dangerous Instrumentalities) may be warranted.''.
    The Commentary to Sec.  2K1.3 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense involved any of the following may be relevant:
    (A) The quantity of explosive materials significantly exceeded 1000 
pounds.
    (B) The explosive materials were of a nature more volatile or 
dangerous than dynamite or conventional powder explosives (e.g., 
plastic explosives).
    (C) The defendant knowingly distributed explosive materials to a 
person under twenty-one years of age.
    (D) The offense posed a substantial risk of death or bodily injury 
to multiple individuals.
    (E) The defendant used or possessed a firearm or explosive to 
facilitate another firearms or explosives offense (e.g., the defendant 
used or possessed a firearm to protect the delivery of an unlawful 
shipment of explosives).
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2K1.4 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. Upward Departure Provision.--If bodily injury resulted, an 
upward departure may be warranted. See Chapter Five, Part K 
(Departures).''.
    The Commentary to Sec.  2K1.4 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Bodily Injury Resulted.--In determining the appropriate sentence 
to impose pursuant to 18 U.S.C. 3553(a), evidence that the offense 
resulted in bodily injury may be relevant. See Sec. Sec.  6A1.1; 
6A1.3.''.
    Section 2K2.1(b)(9)(B) is amended by striking ``subsection (b) of 
Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category)'' and inserting ``Sec.  4A1.3 (Additional Considerations 
Based on Inadequacy of Criminal History Category)''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended--
    in Note 7 by striking ``In a case in which the cumulative result of 
the increased base offense level and the enhancement under subsection 
(b)(3) does not adequately capture the seriousness of the offense 
because of the type of destructive device involved, the risk to the 
public welfare, or the risk of death or serious bodily injury that the 
destructive device created, an upward departure may be warranted. See 
also Sec. Sec.  5K2.1 (Death), 5K2.2 (Physical Injury), and 5K2.14 
(Public Welfare).'';
    by striking Note 11 as follows:
    ``11. Upward Departure Provisions.--An upward departure may be 
warranted in any of the following circumstances: (A) the number of 
firearms substantially exceeded 200; (B) the offense involved multiple 
National Firearms Act weapons (e.g., machineguns, destructive devices), 
military type assault rifles, non-detectable (`plastic') firearms 
(defined at 18 U.S.C. 922(p)); (C) the offense involved large 
quantities of armor-piercing ammunition (defined at 18 U.S.C. 
921(a)(17)(B)); or (D) the offense posed a substantial risk of death or 
bodily injury to multiple individuals (see Application Note 7).'';
    by redesignating Notes 12, 13, and 14 as Notes 11, 12, and 13, 
respectively;
    in Note 12 (as so redesignated)--
    by striking subparagraph (B) as follows:
    ``(B) Upward Departure Provision.--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, an upward departure may be 
warranted.'';
    and by redesignating subparagraph (C) as subparagraph (B);
    and in Note 13 (as so redesignated)--
    by striking subparagraph (D) as follows:
    ``(D) Upward Departure Provision.--In a case in which the defendant 
used or possessed a firearm or explosive to facilitate another firearms 
or explosives offense (e.g., the defendant used or possessed a firearm 
to protect the delivery of an unlawful shipment of explosives), an 
upward departure under Sec.  5K2.6 (Weapons and Dangerous 
Instrumentalities) may be warranted.'';
    and by redesignating subparagraph (E) as subparagraph (D).

[[Page 89188]]

    The Commentary to Sec.  2K2.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The offense level determined under this guideline does not 
adequately capture the seriousness of the offense because of the type 
of destructive device involved, the risk to the public welfare, or the 
risk of death or serious bodily injury that the destructive device 
created.
    (B) The offense posed a substantial risk of death or bodily injury 
to multiple individuals.
    (C) The number of firearms involved in the offense substantially 
exceeded 200.
    (D) 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.
    (E) The offense involved multiple National Firearms Act weapons 
(e.g., machineguns, destructive devices), military type assault rifles, 
or non-detectable (`plastic') firearms (defined at 18 U.S.C. 922(p)).
    (F) The offense involved large quantities of armor-piercing 
ammunition (defined at 18 U.S.C. 921(a)(17)(B)).
    (G) The defendant used or possessed a firearm or explosive to 
facilitate another firearms or explosives offense (e.g., the defendant 
used or possessed a firearm to protect the delivery of an unlawful 
shipment of explosives).
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2K2.4 captioned ``Application Notes'' is 
amended--
    in Note 2 by striking the following:
    ``Application of Subsection (b).--
    (A) In General.--Sections 924(c) and 929(a) of title 18, United 
States Code, provide mandatory minimum terms of imprisonment (e.g., not 
less than five years). Except as provided in subsection (c), in a case 
in which the defendant is convicted under 18 U.S.C. 924(c) or Sec.  
929(a), the guideline sentence is the minimum term required by the 
relevant statute. Each of 18 U.S.C. 924(c) and 929(a) also requires 
that a term of imprisonment imposed under that section shall run 
consecutively to any other term of imprisonment.
    (B) Upward Departure Provision.--In a case in which the guideline 
sentence is determined under subsection (b), a sentence above the 
minimum term required by 18 U.S.C. 924(c) or Sec.  929(a) is an upward 
departure from the guideline sentence. A departure may be warranted, 
for example, to reflect the seriousness of the defendant's criminal 
history in a case in which the defendant is convicted of an 18 U.S.C. 
924(c) or Sec.  929(a) offense but is not determined to be a career 
offender under Sec.  4B1.1.'';
    and inserting the following:
    ``Application of Subsection (b).--Sections 924(c) and 929(a) of 
title 18, United States Code, provide mandatory minimum terms of 
imprisonment (e.g., not less than five years). Except as provided in 
subsection (c), in a case in which the defendant is convicted under 18 
U.S.C. 924(c) or Sec.  929(a), the guideline sentence is the minimum 
term required by the relevant statute. Each of 18 U.S.C. 924(c) and 
929(a) also requires that a term of imprisonment imposed under that 
section shall run consecutively to any other term of imprisonment.'';
    and in Note 4 by striking the following:
    ``In a few cases in which the defendant is determined not to be a 
career offender, the offense level for the underlying offense 
determined under the preceding paragraphs may result in a guideline 
range that, when combined with the mandatory consecutive sentence under 
18 U.S.C. 844(h), Sec.  924(c), or Sec.  929(a), produces a total 
maximum penalty that is less than the maximum of the guideline range 
that would have resulted had there not been a count of conviction under 
18 U.S.C. 844(h), Sec.  924(c), or Sec.  929(a) (i.e., the guideline 
range that would have resulted if the enhancements for possession, use, 
or discharge of a firearm had been applied). In such a case, an upward 
departure may be warranted so that the conviction under 18 U.S.C. 
844(h), Sec.  924(c), or Sec.  929(a) does not result in a decrease in 
the total punishment. An upward departure under this paragraph shall 
not exceed the maximum of the guideline range that would have resulted 
had there not been a count of conviction under 18 U.S.C. 844(h), Sec.  
924(c), or Sec.  929(a).''.
    The Commentary to Sec.  2K2.4 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Seriousness of the Offense.--In determining the appropriate 
sentence to impose pursuant to 18 U.S.C. 3553(a), evidence that the 
minimum term required by 18 U.S.C. 924(c) or Sec.  929(a) understates 
the seriousness of the offense involved (e.g., the underlying offense 
determined under this guideline results in a guideline range that, when 
combined with the mandatory consecutive sentence under 18 U.S.C. 
844(h), Sec.  924(c), or Sec.  929(a), produces a total maximum penalty 
that is less than the maximum of the guideline range that would have 
resulted had otherwise applicable Chapter Two enhancements for 
possession, use, or discharge of a firearm been applied) may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2K2.5 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Where the firearm was brandished, discharged, or otherwise 
used, in a federal facility, federal court facility, or school zone, 
and the cross reference from subsection (c)(1) does not apply, an 
upward departure may be warranted.''.
    The Commentary to Sec.  2K2.5 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Firearm Brandished, Discharged, or Otherwise Used.--In 
determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a) in a case where the cross reference from subsection (c)(1) does 
not apply, evidence that the firearm was brandished, discharged, or 
otherwise used, in a federal facility, federal court facility, or 
school zone may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended--
    in Note 4 by striking ``Application Note 1(M) of Sec.  1B1.1'' and 
inserting ``Application Note 1(L) of Sec.  1B1.1'';
    and by striking Note 7 as follows:
    ``7. Upward Departure Provisions.--An upward departure may be 
warranted in any of the following cases:
    (A) The defendant smuggled, transported, or harbored an alien 
knowing that the alien intended to enter the United States to engage in 
subversive activity, drug trafficking, or other serious criminal 
behavior.
    (B) The defendant smuggled, transported, or harbored an alien the 
defendant knew was inadmissible for reasons of security and related 
grounds, as set forth under 8 U.S.C. 1182(a)(3).
    (C) The offense involved substantially more than 100 aliens.''.
    The Commentary to Sec.  2L1.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence

[[Page 89189]]

that the offense involved any of the following may be relevant:
    (A) The defendant smuggled, transported, or harbored an alien 
knowing that the alien intended to enter the United States to engage in 
subversive activity, drug trafficking, or other serious criminal 
behavior.
    (B) The defendant smuggled, transported, or harbored an alien the 
defendant knew was inadmissible for reasons of security and related 
grounds, as set forth under 8 U.S.C. 1182(a)(3).
    (C) The offense involved substantially more than 100 aliens.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended by striking Notes 6, 7, and 8 as follows:
    ``6. Departure Based on Seriousness of a Prior Offense.--There may 
be cases in which the offense level provided by an enhancement in 
subsection (b)(2) or (b)(3) substantially understates or overstates the 
seriousness of the conduct underlying the prior offense, because (A) 
the length of the sentence imposed does not reflect the seriousness of 
the prior offense; (B) the prior conviction is too remote to receive 
criminal history points (see Sec.  4A1.2(e)); or (C) the time actually 
served was substantially less than the length of the sentence imposed 
for the prior offense. In such a case, a departure may be warranted.
    7. Departure Based on Time Served in State Custody.--In a case in 
which the defendant is located by immigration authorities while the 
defendant is serving time in state custody, whether pre- or post-
conviction, for a state offense, the time served is not covered by an 
adjustment under Sec.  5G1.3(b) and, accordingly, is not covered by a 
departure under Sec.  5K2.23 (Discharged Terms of Imprisonment). See 
Sec.  5G1.3(a). In such a case, the court may consider whether a 
departure is appropriate to reflect all or part of the time served in 
state custody, from the time immigration authorities locate the 
defendant until the service of the federal sentence commences, that the 
court determines will not be credited to the federal sentence by the 
Bureau of Prisons. Any such departure should be fashioned to achieve a 
reasonable punishment for the instant offense.
    Such a departure should be considered only in cases where the 
departure is not likely to increase the risk to the public from further 
crimes of the defendant. In determining whether such a departure is 
appropriate, the court should consider, among other things, (A) whether 
the defendant engaged in additional criminal activity after illegally 
reentering the United States; (B) the seriousness of any such 
additional criminal activity, including (1) whether the defendant used 
violence or credible threats of violence or possessed a firearm or 
other dangerous weapon (or induced another person to do so) in 
connection with the criminal activity, (2) whether the criminal 
activity resulted in death or serious bodily injury to any person, and 
(3) whether the defendant was an organizer, leader, manager, or 
supervisor of others in the criminal activity; and (C) the seriousness 
of the defendant's other criminal history.
    8. Departure Based on Cultural Assimilation.--There may be cases in 
which a downward departure may be appropriate on the basis of cultural 
assimilation. Such a departure should be considered only in cases where 
(A) the defendant formed cultural ties primarily with the United States 
from having resided continuously in the United States from childhood, 
(B) those cultural ties provided the primary motivation for the 
defendant's illegal reentry or continued presence in the United States, 
and (C) such a departure is not likely to increase the risk to the 
public from further crimes of the defendant.
    In determining whether such a departure is appropriate, the court 
should consider, among other things, (1) the age in childhood at which 
the defendant began residing continuously in the United States, (2) 
whether and for how long the defendant attended school in the United 
States, (3) the duration of the defendant's continued residence in the 
United States, (4) the duration of the defendant's presence outside the 
United States, (5) the nature and extent of the defendant's familial 
and cultural ties inside the United States, and the nature and extent 
of such ties outside the United States, (6) the seriousness of the 
defendant's criminal history, and (7) whether the defendant engaged in 
additional criminal activity after illegally reentering the United 
States.''.
    The Commentary to Sec.  2L1.2 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense level determined under this guideline substantially 
understates the seriousness of the conduct underlying the prior offense 
may be relevant because of any of the following reasons:
    (A) The length of the sentence imposed does not reflect the 
seriousness of the prior offense.
    (B) The prior conviction is too remote to receive criminal history 
points (see Sec.  4A1.2(e)).
    See Sec. Sec.  6A1.1; 6A1.3.
    2. Mitigating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The offense level determined under this guideline overstates 
the seriousness of the conduct underlying the prior offense because the 
time actually served was substantially less than the length of the 
sentence imposed for the prior offense.
    (B) The defendant is located by immigration authorities while the 
defendant is serving time in state custody, whether pre- or post-
conviction, for a state offense and the time served is not covered by 
an adjustment under Sec.  5G1.3(b). The court may also consider, among 
other things: (i) whether the defendant engaged in additional criminal 
activity after illegally reentering the United States; (ii) the 
seriousness of any such additional criminal activity, including (I) 
whether the defendant used violence or credible threats of violence or 
possessed a firearm or other dangerous weapon (or induced another 
person to do so) in connection with the criminal activity, (II) whether 
the criminal activity resulted in death or serious bodily injury to any 
person, and (III) whether the defendant was an organizer, leader, 
manager, or supervisor of others in the criminal activity; and (iii) 
the seriousness of the defendant's other criminal history.
    (C) The defendant formed cultural ties primarily with the United 
States from having resided continuously in the United States from 
childhood, and those cultural ties provided the primary motivation for 
the defendant's illegal reentry or continued presence in the United 
States. The court may also consider, among other things: (i) the age in 
childhood at which the defendant began residing continuously in the 
United States; (ii) whether and for how long the defendant attended 
school in the United States; (iii) the duration of the defendant's 
continued residence in the United States; (iv) the duration of the 
defendant's presence outside the United States; (v) the nature and 
extent of the defendant's familial and cultural ties inside the United 
States, and the nature and extent of such ties outside the United 
States; (vi) the seriousness of the defendant's criminal history; and 
(vii) whether the defendant engaged in

[[Page 89190]]

additional criminal activity after illegally reentering the United 
States.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2L2.1 captioned ``Application Notes'' is 
amended--
    by striking Note 3 as follows:
    ``3. Subsection (b)(3) provides an enhancement if the defendant 
knew, believed, or had reason to believe that a passport or visa was to 
be used to facilitate the commission of a felony offense, other than an 
offense involving violation of the immigration laws. If the defendant 
knew, believed, or had reason to believe that the felony offense to be 
committed was of an especially serious type, an upward departure may be 
warranted.'';
    by redesignating Note 4 as Note 3;
    and by striking Note 5 as follows:
    ``5. If the offense involved substantially more than 100 documents, 
an upward departure may be warranted.''.
    The Commentary to Sec.  2L2.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense involved any of the following may be relevant:
    (A) The defendant knew, believed, or had reason to believe that a 
passport or visa was to be used to facilitate the commission of a 
felony offense, other than an offense involving violation of the 
immigration laws, that was of an especially serious type.
    (B) The offense involved substantially more than 100 documents.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2L2.2 captioned ``Application Notes'' is 
amended by striking Note 6 as follows:
    ``6. Upward Departure Provision.--If the defendant fraudulently 
obtained or used a United States passport for the purpose of entering 
the United States to engage in terrorist activity, an upward departure 
may be warranted. See Application Note 4 of the Commentary to Sec.  
3A1.4 (Terrorism).''.
    The Commentary to Sec.  2L2.2 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Entering the United States with Purpose to Engage in Terrorist 
Activity.--In determining the appropriate sentence to impose pursuant 
to 18 U.S.C. 3553(a), evidence that the defendant fraudulently obtained 
or used a United States passport for the purpose of entering the United 
States to engage in terrorist activity may be relevant. See Sec. Sec.  
6A1.1; 6A1.3.''.
    The Commentary to Sec.  2M3.1 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    and by striking Notes 2 and 3 as follows:
    ``2. The Commission has set the base offense level in this subpart 
on the assumption that the information at issue bears a significant 
relation to the nation's security, and that the revelation will 
significantly and adversely affect security interests. When revelation 
is likely to cause little or no harm, a downward departure may be 
warranted. See Chapter Five, Part K (Departures).
    3. The court may depart from the guidelines upon representation by 
the President or his duly authorized designee that the imposition of a 
sanction other than authorized by the guideline is necessary to protect 
national security or further the objectives of the nation's foreign 
policy.''.
    The Commentary to Sec.  2M3.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), 
representation by the President or his duly authorized designee that 
the imposition of a sanction other than authorized by the guideline is 
necessary to protect national security or further the objectives of the 
nation's foreign policy may be relevant. See Sec. Sec.  6A1.1; 6A1.3.
    2. Mitigating Factors Relating to the Offense.--The Commission has 
set the base offense level in this subpart on the assumption that the 
information at issue bears a significant relation to the nation's 
security, and that the revelation will significantly and adversely 
affect security interests. In determining the appropriate sentence to 
impose pursuant to 18 U.S.C. 3553(a), evidence that the revelation is 
likely to cause little or no harm may be relevant. See Sec. Sec.  
6A1.1; 6A1.3.''.
    The Commentary to Sec.  2M4.1 is amended--
    by striking the Commentary captioned ``Application Note'' in its 
entirety as follows:
    ``Application Note:
    1. Subsection (b)(1) does not distinguish between whether the 
offense was committed in peacetime or during time of war or armed 
conflict. If the offense was committed when persons were being inducted 
for compulsory military service during time of war or armed conflict, 
an upward departure may be warranted.'';
    and by inserting at the end the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. War or Armed Conflict.--This guideline does not distinguish 
between whether the offense was committed in peacetime or during time 
of war or armed conflict. In determining the appropriate sentence to 
impose pursuant to 18 U.S.C. 3553(a), evidence that the offense was 
committed when persons were being inducted for compulsory military 
service during time of war or armed conflict may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2M5.1 captioned ``Application Notes'' is 
amended--
    by striking Notes 1 and 2 as follows:
    ``1. In the case of a violation during time of war or armed 
conflict, an upward departure may be warranted.
    2. In determining the sentence within the applicable guideline 
range, the court may consider the degree to which the violation 
threatened a security interest of the United States, the volume of 
commerce involved, the extent of planning or sophistication, and 
whether there were multiple occurrences. Where such factors are present 
in an extreme form, a departure from the guidelines may be warranted. 
See Chapter Five, Part K (Departures).'';
    and by redesignating Notes 3 and 4 as Notes 1 and 2.
    The Commentary to Sec.  2M5.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. War or Armed Conflict.--In determining the appropriate sentence 
to impose pursuant to 18 U.S.C. 3553(a), evidence that the offense was 
committed during time of war or armed conflict may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.
    2. Additional Aggravating Factors Relating to the Offense.--In 
determining the sentence within the applicable guideline range, the 
degree to which the violation threatened a security interest of the 
United States, the volume of commerce involved, the extent of planning 
or sophistication, and whether there were multiple occurrences may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''
    The Commentary to Sec.  2M5.2 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';

[[Page 89191]]

    in Note 1 by striking the following:
    ``The base offense level assumes that the offense conduct was 
harmful or had the potential to be harmful to a security or foreign 
policy interest of the United States. In the unusual case where the 
offense conduct posed no such risk, a downward departure may be 
warranted. In the case of a violation during time of war or armed 
conflict, an upward departure may be warranted. See Chapter Five, Part 
K (Departures).'';
    and by striking Note 2 as follows:
    ``2. In determining the sentence within the applicable guideline 
range, the court may consider the degree to which the violation 
threatened a security or foreign policy interest of the United States, 
the volume of commerce involved, the extent of planning or 
sophistication, and whether there were multiple occurrences. Where such 
factors are present in an extreme form, a departure from the guidelines 
may be warranted.''.
    The Commentary to Sec.  2M5.2 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
sentence within the applicable guideline range, the court may consider 
the degree to which the violation threatened a security or foreign 
policy interest of the United States, the volume of commerce involved, 
the extent of planning or sophistication, and whether there were 
multiple occurrences. Nonetheless, in determining the appropriate 
sentence to impose pursuant to 18 U.S.C. 3553(a), evidence that such 
factors are present in an extreme form may be relevant. See Sec. Sec.  
6A1.1; 6A1.3.
    2. War or Armed Conflict.--In determining the appropriate sentence 
to impose pursuant to 18 U.S.C. 3553(a), evidence that the offense was 
committed during time of war or armed conflict may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.
    3. Mitigating Factors Relating to the Offense.--This guideline 
assumes that the offense conduct was harmful or had the potential to be 
harmful to a security or foreign policy interest of the United States. 
In determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a), evidence that the offense conduct posed no such risk may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2M5.3 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:
    ``2. Departure Provisions.--
    (A) In General.--In determining the sentence within the applicable 
guideline range, the court may consider the degree to which the 
violation threatened a security interest of the United States, the 
volume of the funds or other material support or resources involved, 
the extent of planning or sophistication, and whether there were 
multiple occurrences. In a case in which such factors are present in an 
extreme form, a departure from the guidelines may be warranted. See 
Chapter Five, Part K (Departures).
    (B) War or Armed Conflict.--In the case of a violation during time 
of war or armed conflict, an upward departure may be warranted.''.
    The Commentary to Sec.  2M5.3 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
sentence within the applicable guideline range, the court may consider 
the degree to which the violation threatened a security interest of the 
United States, the volume of the funds or other material support or 
resources involved, the extent of planning or sophistication, and 
whether there were multiple occurrences. Nonetheless, in determining 
the appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), 
evidence that such factors are present in an extreme form may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.
    2. War or Armed Conflict.--In determining the appropriate sentence 
to impose pursuant to 18 U.S.C. 3553(a), evidence that the offense was 
committed during time of war or armed conflict may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2N1.1 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    by striking Note 1 as follows:
    ``1. The base offense level reflects that this offense typically 
poses a risk of death or serious bodily injury to one or more victims; 
or causes, or is intended to cause, bodily injury. Where the offense 
posed a substantial risk of death or serious bodily injury to numerous 
victims, or caused extreme psychological injury or substantial property 
damage or monetary loss, an upward departure may be warranted. In the 
unusual case in which the offense did not cause a risk of death or 
serious bodily injury, and neither caused nor was intended to cause 
bodily injury, a downward departure may be warranted.'';
    and by redesignating Note 2 as Note 1.
    The Commentary to Sec.  2N1.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense posed a substantial risk of death or serious bodily 
injury to numerous victims, or caused extreme psychological injury or 
substantial property damage or monetary loss may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.
    2. Mitigating Factors Relating to the Offense.--This guideline 
reflects that this offense typically poses a risk of death or serious 
bodily injury to one or more victims; or causes, or is intended to 
cause, bodily injury. In determining the appropriate sentence to impose 
pursuant to 18 U.S.C. 3553(a), evidence that the offense did not cause 
a risk of death or serious bodily injury, and neither caused nor was 
intended to cause bodily injury, may be relevant. See Sec. Sec.  6A1.1; 
6A1.3.''.
    The Commentary to Sec.  2N1.2 is amended--
    by striking the Commentary captioned ``Application Note'' in its 
entirety as follows:
    ``Application Note:
    1. If death or bodily injury, extreme psychological injury, or 
substantial property damage or monetary loss resulted, an upward 
departure may be warranted. See Chapter Five, Part K (Departures).'';
    and by inserting at the end the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense resulted in death or bodily injury, extreme 
psychological injury, or substantial property damage or monetary loss 
may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2N1.3 is amended--
    by striking the Commentary captioned ``Application Note'' in its 
entirety as follows:
    ``Application Note:
    1. If death or bodily injury, extreme psychological injury, or 
substantial property damage or monetary loss resulted, an upward 
departure may be warranted. See Chapter Five, Part K (Departures).'';
    and by inserting at the end the following new Commentary:

[[Page 89192]]

    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense resulted in death or bodily injury, extreme 
psychological injury, or substantial property damage or monetary loss 
may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2N2.1 captioned ``Application Notes'' is 
amended--
    by striking Note 1 as follows:
    ``1. This guideline assumes a regulatory offense that involved 
knowing or reckless conduct. Where only negligence was involved, a 
downward departure may be warranted. See Chapter Five, Part K 
(Departures).'';
    by redesignating Note 2 as Note 1;
    by striking Note 3 as follows:
    ``3. Upward Departure Provisions.--The following are circumstances 
in which an upward departure may be warranted:
    (A) The offense created a substantial risk of bodily injury or 
death; or bodily injury, death, extreme psychological injury, property 
damage, or monetary loss resulted from the offense. See Chapter Five, 
Part K (Departures).
    (B) The defendant was convicted under 7 U.S.C. 7734.'';
    and by redesignating Note 4 as Note 2.
    The Commentary to Sec.  2N2.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The offense created a substantial risk of bodily injury or 
death; or bodily injury, death, extreme psychological injury, property 
damage, or monetary loss resulted from the offense.
    (B) The defendant was convicted under 7 U.S.C. 7734.
    See Sec. Sec.  6A1.1; 6A1.3.
    2. Mitigating Factors Relating to the Offense.--This guideline 
assumes a regulatory offense that involved knowing or reckless conduct. 
In determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a), evidence that the offense only involved negligence may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2P1.1 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. If death or bodily injury resulted, an upward departure may be 
warranted. See Chapter Five, Part K (Departures).'';
    and by redesignating Notes 5 and 6 as Notes 4 and 5, respectively.
    The Commentary to Sec.  2P1.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Death or Bodily Injury Resulted.--In determining the appropriate 
sentence to impose pursuant to 18 U.S.C. 3553(a), evidence that the 
offense resulted in death or bodily injury may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2P1.3 is amended--
    by striking the Commentary captioned ``Application Note'' in its 
entirety as follows:
    ``Application Note:
    1. If death or bodily injury resulted, an upward departure may be 
warranted. See Chapter Five, Part K (Departures).'';
    and by inserting at the end the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Death or Bodily Injury Resulted.--In determining the appropriate 
sentence to impose pursuant to 18 U.S.C. 3553(a), evidence that the 
offense resulted in death or bodily injury may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2Q1.1 is amended--
    by striking the Commentary captioned ``Application Note'' in its 
entirety as follows:
    ``Application Note:
    1. If death or serious bodily injury resulted, an upward departure 
may be warranted. See Chapter Five, Part K (Departures).'';
    and by inserting before the Commentary captioned ``Background'' the 
following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Death or Serious Bodily Injury Resulted.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense resulted in death or serious bodily injury may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2Q1.2 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. Except when the adjustment in subsection (b)(6) for simple 
recordkeeping offenses applies, this section assumes knowing conduct. 
In cases involving negligent conduct, a downward departure may be 
warranted.'';
    redesignating Notes 5 through 8 as Notes 4 through 7, respectively;
    in Note 4 (as so redesignated) by striking ``Depending upon the 
harm resulting from the emission, release or discharge, the quantity 
and nature of the substance or pollutant, the duration of the offense 
and the risk associated with the violation, a departure of up to two 
levels in either direction from the offense levels prescribed in these 
specific offense characteristics may be appropriate.'';
    in Note 5 (as so redesignated) by striking ``Depending upon the 
nature of the risk created and the number of people placed at risk, a 
departure of up to three levels upward or downward may be warranted. If 
death or serious bodily injury results, a departure would be called 
for. See Chapter Five, Part K (Departures).'';
    in Note 6 (as so redesignated) by striking ``Depending upon the 
nature of the contamination involved, a departure of up to two levels 
either upward or downward could be warranted.'';
    in Note 7 (as so redesignated) by striking ``Depending upon the 
nature and quantity of the substance involved and the risk associated 
with the offense, a departure of up to two levels either upward or 
downward may be warranted.'';
    and by striking Note 9 as follows:
    ``9. Other Upward Departure Provisions.--
    (A) Civil Adjudications and Failure to Comply with Administrative 
Order.--In a case in which the defendant has previously engaged in 
similar misconduct established by a civil adjudication or has failed to 
comply with an administrative order, an upward departure may be 
warranted. See Sec.  4A1.3 (Departures Based on Inadequacy of Criminal 
History Category).
    (B) Extreme Psychological Injury.--If the offense caused extreme 
psychological injury, an upward departure may be warranted. See Sec.  
5K2.3 (Extreme Psychological Injury).
    (C) Terrorism.--If the offense was calculated to influence or 
affect the conduct of government by intimidation or coercion, or to 
retaliate against government conduct, an upward departure would be 
warranted. See Application Note 4 of the Commentary to Sec.  3A1.4 
(Terrorism).''.
    The Commentary to Sec.  2Q1.2 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The offense resulted in death or serious bodily injury.

[[Page 89193]]

    (B) The defendant has previously engaged in similar misconduct 
established by a civil adjudication or has failed to comply with an 
administrative order.
    (C) The offense caused extreme psychological injury.
    (D) The offense was calculated to influence or affect the conduct 
of government by intimidation or coercion, or to retaliate against 
government conduct.
    See Sec. Sec.  6A1.1; 6A1.3.
    2. Mitigating Factors Relating to the Offense.--Except when the 
adjustment in subsection (b)(6) for simple recordkeeping offenses 
applies, this guideline assumes knowing conduct. In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense only involved negligent conduct may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.
    3. Additional Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense involved any of the following may be relevant:
    (A) The harm resulting from the emission, release or discharge into 
the environment, the quantity and nature of the substance or pollutant, 
the duration of the offense and the risk associated with the violation.
    (B) The nature of the risk created, and the number of people placed 
at risk.
    (C) The nature and quantity of the substance or contamination 
involved in, and the risk associated with, the offense.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2Q1.3 captioned ``Application Notes'' is 
amended--
    by striking Note 3 as follows:
    ``3. The specific offense characteristics in this section assume 
knowing conduct. In cases involving negligent conduct, a downward 
departure may be warranted.'';
    by redesignating Notes 4 through 7 as Notes 3 through 6;
    in Note 3 (as so redesignated) by striking ``Depending upon the 
harm resulting from the emission, release or discharge, the quantity 
and nature of the substance or pollutant, the duration of the offense 
and the risk associated with the violation, a departure of up to two 
levels in either direction from that prescribed in these specific 
offense characteristics may be appropriate.'';
    in Note 4 (as so redesignated) by striking ``Depending upon the 
nature of the risk created and the number of people placed at risk, a 
departure of up to three levels upward or downward may be warranted. If 
death or serious bodily injury results, a departure would be called 
for. See Chapter Five, Part K (Departures).'';
    in Note 5 (as so redesignated) by striking ``Depending upon the 
nature of the contamination involved, a departure of up to two levels 
in either direction could be warranted.'';
    in Note 6 (as so redesignated) by striking ``Depending upon the 
nature and quantity of the substance involved and the risk associated 
with the offense, a departure of up to two levels in either direction 
may be warranted.'';
    and by striking Note 8 as follows:
    ``8. Where a defendant has previously engaged in similar misconduct 
established by a civil adjudication or has failed to comply with an 
administrative order, an upward departure may be warranted. See Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category 
(Policy Statement)).''.
    The Commentary to Sec.  2Q1.3 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The offense resulted in death or serious bodily injury.
    (B) The defendant has previously engaged in similar misconduct 
established by a civil adjudication or has failed to comply with an 
administrative order.
    See Sec. Sec.  6A1.1; 6A1.3.
    2. Mitigating Factors Relating to the Offense.--This guideline 
assumes knowing conduct. In determining the appropriate sentence to 
impose pursuant to 18 U.S.C. 3553(a), evidence that the offense only 
involved negligent conduct may be relevant. See Sec. Sec.  6A1.1; 
6A1.3.
    3. Additional Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense involved any of the following may be relevant:
    (A) The harm resulting from the emission, release or discharge into 
the environment, the quantity and nature of the substance or pollutant, 
the duration of the offense and the risk associated with the violation.
    (B) The nature of the risk created, and the number of people placed 
at risk.
    (C) The nature and quantity of the substance or contamination 
involved in, and the risk associated with, the offense.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2Q1.4 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. Departure Provisions.--
    (A) Downward Departure Provision.--The base offense level in 
subsection (a)(1) reflects that offenses covered by that subsection 
typically pose a risk of death or serious bodily injury to one or more 
victims, or cause, or are intended to cause, bodily injury. In the 
unusual case in which such an offense did not cause a risk of death or 
serious bodily injury, and neither caused nor was intended to cause 
bodily injury, a downward departure may be warranted.
    (B) Upward Departure Provisions.--If the offense caused extreme 
psychological injury, or caused substantial property damage or monetary 
loss, an upward departure may be warranted.
    If the offense was calculated to influence or affect the conduct of 
government by intimidation or coercion, or to retaliate against 
government conduct, an upward departure would be warranted. See 
Application Note 4 of Sec.  3A1.4 (Terrorism).''.
    The Commentary to Sec.  2Q1.4 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Considerations:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense involved any of the following may be relevant:
    (A) The offense caused extreme psychological injury or caused 
substantial property damage or monetary loss.
    (B) The offense was calculated to influence or affect the conduct 
of government by intimidation or coercion, or to retaliate against 
government conduct.
    See Sec. Sec.  6A1.1; 6A1.3.
    2. Mitigating Factors Relating to the Offense.--The base offense 
level in subsection (a)(1) reflects that offenses covered by that 
subsection typically pose a risk of death or serious bodily injury to 
one or more victims, or cause, or are intended to cause, bodily injury. 
In determining the appropriate sentence to impose pursuant to 18 U.S.C. 
3553(a), evidence that the offense did not cause a risk of death or 
serious bodily injury, and neither caused nor was intended to cause 
bodily injury, may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2Q2.1 captioned ``Application Notes'' is 
amended--
    by striking Note 5 as follows:
    ``5. If the offense involved the destruction of a substantial 
quantity of

[[Page 89194]]

fish, wildlife, or plants, and the seriousness of the offense is not 
adequately measured by the market value, an upward departure may be 
warranted.'';
    and by redesignating Note 6 as Note 5.
    The Commentary to Sec.  2Q2.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense involved the destruction of a substantial quantity of 
fish, wildlife, or plants, and the seriousness of the offense is not 
adequately measured by the market value, may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.''.
    Section 2R1.1(d)(1) is amended by striking ``Sec.  8C2.4'' and 
inserting ``Sec.  9C2.4''.
    Section 2R1.1(d)(2) is amended by striking ``Sec.  8C2.6'' and 
inserting ``Sec.  9C2.6''.
    The Commentary to Sec.  2R1.1 captioned ``Application Notes'' is 
amended--
    in Note 3 by striking ``Chapter Eight'' and inserting ``Chapter 
Nine''; and by striking ``Sec.  8C2.4(a)(3)'' and inserting ``Sec.  
9C2.4(a)(3)'';
    and by striking Note 7 as follows:
    ``7. In the case of a defendant with previous antitrust 
convictions, a sentence at the maximum of the applicable guideline 
range, or an upward departure, may be warranted. See Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category (Policy 
Statement)).''.
    The Commentary to Sec.  2R1.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Defendant with Previous Antitrust Convictions.--In determining 
the appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), 
evidence that the defendant had prior antitrust convictions may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2R1.1 captioned ``Background'' is amended 
by striking ``Chapter Eight'' and inserting ``Chapter Nine''.
    The Commentary to Sec.  2T1.1 captioned ``Application Notes'' is 
amended in Note 3 by striking ``Sec.  6A1.3'' both places such term 
appears and inserting ``Sec.  7A1.3''.
    The Commentary to Sec.  2T1.8 is amended--
    by striking the Commentary captioned ``Application Note'' in its 
entirety as follows:
    ``Application Note:
    1. If the defendant was attempting to evade, rather than merely 
delay, payment of taxes, an upward departure may be warranted.'';
    and by inserting before the Commentary captioned ``Background'' the 
following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Attempt to Evade Payment of Taxes.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the defendant was attempting to evade, rather than merely delay, 
payment of taxes may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2T2.1 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:
    ``2. Offense conduct directed at more than tax evasion (e.g., theft 
or fraud) may warrant an upward departure.''.
    The Commentary to Sec.  2T2.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the offense conduct was directed at more than tax evasion (e.g., 
theft or fraud) may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    Chapter Two, Part T, Subpart 3 is amended in the Introductory 
Commentary by striking ``for departing upward if there is not another 
more specific applicable guideline'' and inserting ``for imposing a 
sentence that is greater than the otherwise applicable guideline range 
pursuant to Chapter Six, Part A (Consideration of Factors in 18 U.S.C. 
3553(a))''.
    The Commentary to Sec.  2T3.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``Especially when such items are harmful 
or protective quotas are in effect, the duties evaded on such items may 
not adequately reflect the harm to society or protected industries 
resulting from their importation. In such instances, an upward 
departure may be warranted.''.
    The Commentary to Sec.  2T3.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
that the duties evaded on the items involved in the offense do not 
adequately reflect the harm to society or protected industries 
resulting from their importation may be relevant. See Sec. Sec.  6A1.1; 
6A1.3.''.
    The Commentary to Sec.  2X5.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by inserting after ``include:'' the following: ``Sec.  
3F1.1 (Early Disposition Programs (Policy Statement));''; by striking 
``Chapter Five, Part H (Specific Offender Characteristics); Chapter 
Five, Part J (Relief from Disability); Chapter Five, Part K 
(Departures); Chapter Six, Part A (Sentencing Procedures); Chapter Six, 
Part B (Plea Agreements)'' and inserting ``Chapter Five, Part J (Relief 
from Disability); Chapter Five, Part K (Assistance to Authorities); 
Chapter Seven, Part A (Sentencing Procedures); Chapter Seven, Part B 
(Plea Agreements)'';
    and in Note 2 by striking the following:
    ``2. Convictions under 18 U.S.C. 1841(a)(1).--
    (A) In General.--If the defendant is convicted under 18 U.S.C. 
1841(a)(1), the Chapter Two offense guideline that applies is the 
guideline that covers the conduct the defendant is convicted of having 
engaged in, i.e., the conduct of which the defendant is convicted that 
violates a specific provision listed in 18 U.S.C. 1841(b) and that 
results in the death of, or bodily injury to, a child in utero at the 
time of the offense of conviction. For example, if the defendant 
committed aggravated sexual abuse against the unborn child's mother and 
it caused the death of the child in utero, the applicable Chapter Two 
guideline would be Sec.  2A3.1 (Criminal Sexual Abuse; Attempt to 
Commit Criminal Sexual Abuse).
    (B) Upward Departure Provision.--For offenses under 18 U.S.C. 
1841(a)(1), an upward departure may be warranted if the offense level 
under the applicable guideline does not adequately account for the 
death of, or serious bodily injury to, the child in utero.'';
    and inserting the following:
    ``Convictions under 18 U.S.C. 1841(a)(1).--If the defendant is 
convicted under 18 U.S.C. 1841(a)(1), the Chapter Two offense guideline 
that applies is the guideline that covers the conduct the defendant is 
convicted of having engaged in, i.e., the conduct of which the 
defendant is convicted that violates a specific provision listed in 18 
U.S.C. 1841(b) and that results in the death of, or bodily injury to, a 
child in utero at the time of the offense of

[[Page 89195]]

conviction. For example, if the defendant committed aggravated sexual 
abuse against the unborn child's mother and it caused the death of the 
child in utero, the applicable Chapter Two guideline would be Sec.  
2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual 
Abuse).''.
    The Commentary to Sec.  2X5.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a) for 
offenses under 18 U.S.C. 1841(a)(1), evidence that the offense level 
under the applicable guideline does not adequately account for the 
death of, or serious bodily injury to, the child in utero may be 
relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  2X7.2 is amended--
    by striking the Commentary captioned ``Application Note'' in its 
entirety as follows:
    ``Application Note:
    1. Upward Departure Provisions.--An upward departure may be 
warranted in any of the following cases:
    (A) The defendant engaged in a pattern of activity involving use of 
a submersible vessel or semi-submersible vessel described in 18 U.S.C. 
2285 to facilitate other felonies.
    (B) The offense involved use of the vessel as part of an ongoing 
criminal organization or enterprise.'';
    and by inserting before the Commentary captioned ``Background'' the 
following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), evidence 
of the following may be relevant:
    (A) The defendant engaged in a pattern of activity involving use of 
a submersible vessel or semi-submersible vessel described in 18 U.S.C. 
2285 to facilitate other felonies.
    (B) The offense involved use of the vessel as part of an ongoing 
criminal organization or enterprise.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  3A1.1 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. If an enhancement from subsection (b) applies and the 
defendant's criminal history includes a prior sentence for an offense 
that involved the selection of a vulnerable victim, an upward departure 
may be warranted.''; and by redesignating Note 5 as Note 4.
    The Commentary to Sec.  3A1.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Consideration:
    1. Criminal History Involving Vulnerable Victims.--In determining 
the appropriate sentence to impose under 18 U.S.C. 3553(a), a prior 
offense that also involved the selection of a vulnerable victim may be 
relevant in a case in which an enhancement from subsection (b) applies. 
See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  3A1.2 captioned ``Application Notes'' is 
amended by striking Note 5 as follows:
    ``5. Upward Departure Provision.--If the official victim is an 
exceptionally high-level official, such as the President or the Vice 
President of the United States, an upward departure may be warranted 
due to the potential disruption of the governmental function.''.
    The Commentary to Sec.  3A1.2 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Exceptionally High-Level Official.--In determining the 
appropriate sentence to impose under 18 U.S.C. 3553(a), evidence that 
the official victim is an exceptionally high-level official, such as 
the President or the Vice President of the United States, may be 
relevant due to the potential disruption of the governmental function. 
See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  3A1.3 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. If the restraint was sufficiently egregious, an upward 
departure may be warranted. See Sec.  5K2.4 (Abduction or Unlawful 
Restraint).''.
    The Commentary to Sec.  3A1.3 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Sufficiently Egregious Restraint.--In determining the 
appropriate sentence to impose under 18 U.S.C. 3553(a), evidence that 
the restraint was sufficiently egregious may be relevant. See 
Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  3A1.4 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Upward Departure Provision.--By the terms of the directive to 
the Commission in section 730 of the Antiterrorism and Effective Death 
Penalty Act of 1996, the adjustment provided by this guideline applies 
only to federal crimes of terrorism. However, there may be cases in 
which (A) the offense was calculated to influence or affect the conduct 
of government by intimidation or coercion, or to retaliate against 
government conduct but the offense involved, or was intended to 
promote, an offense other than one of the offenses specifically 
enumerated in 18 U.S.C. 2332b(g)(5)(B); or (B) the offense involved, or 
was intended to promote, one of the offenses specifically enumerated in 
18 U.S.C. 2332b(g)(5)(B), but the terrorist motive was to intimidate or 
coerce a civilian population, rather than to influence or affect the 
conduct of government by intimidation or coercion, or to retaliate 
against government conduct. In such cases an upward departure would be 
warranted, except that the sentence resulting from such a departure may 
not exceed the top of the guideline range that would have resulted if 
the adjustment under this guideline had been applied.''.
    The Commentary to Sec.  3A1.4 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--By the terms of 
the directive to the Commission in section 730 of the Antiterrorism and 
Effective Death Penalty Act of 1996, the adjustment provided by this 
guideline applies only to federal crimes of terrorism. However, in 
determining the appropriate sentence to impose under 18 U.S.C. 3553(a), 
evidence that the offense was calculated to influence or affect the 
conduct of government by intimidation or coercion, to retaliate against 
government conduct or to intimidate or coerce a civilian population may 
be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  3B1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``An upward departure may be warranted, 
however, in the case of a defendant who did not organize, lead, manage, 
or supervise another participant, but who nevertheless exercised 
management responsibility over the property, assets, or activities of a 
criminal organization.''.
    The Commentary to Sec.  3B1.1 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Management of Property, Assets, or Activities.--In determining 
the appropriate sentence to impose under 18 U.S.C. 3553(a), evidence 
that the defendant exercised management

[[Page 89196]]

responsibility over the property, assets, or activities of a criminal 
organization may be relevant, regardless of whether this adjustment 
applied. See Sec. Sec.  6A1.1; 6A1.2.''.
    The Commentary to Sec.  3B1.4 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. If the defendant used or attempted to use more than one person 
less than eighteen years of age, an upward departure may be 
warranted.''.
    The Commentary to Sec.  3B1.4 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Using Multiple Minors.--In determining the appropriate sentence 
to impose under 18 U.S.C. 3553(a), evidence that the defendant used or 
attempted to use more than one person less than eighteen years of age 
may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  3C1.2 captioned ``Application Notes'' is 
amended--
    in Note 2 by striking ``However, where a higher degree of 
culpability was involved, an upward departure above the 2-level 
increase provided in this section may be warranted.'';
    and by striking Note 6 as follows:
    ``6. If death or bodily injury results or the conduct posed a 
substantial risk of death or bodily injury to more than one person, an 
upward departure may be warranted. See Chapter Five, Part K 
(Departures).''.
    The Commentary to Sec.  3C1.2 is amended by inserting at the end 
the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose under 18 U.S.C. 3553(a), evidence that 
the offense involved any of the following may be relevant:
    (A) The offense involved a degree of culpability higher than 
recklessness.
    (B) Death or bodily injury resulted from the offense, or the 
conduct posed a substantial risk of death or bodily injury to more than 
one person.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  3D1.1 captioned ``Background'' is amended 
by striking ``Chapter Five (Determining the Sentence)'' both places 
such phrase appears and inserting ``Chapter Five (Determining the 
Sentencing Range and Options Under the Guidelines)''.
    The Commentary to Sec.  3D1.2 captioned ``Background'' is amended 
by striking ``because it probably would require departure in many cases 
in order to capture adequately the criminal behavior'' and inserting 
``because, in many cases, it would not fully capture the scope and 
impact of the criminal behavior''.
    The Commentary to Sec.  3D1.3 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Sometimes the rule specified in this section may not result in 
incremental punishment for additional criminal acts because of the 
grouping rules. For example, if the defendant commits forcible criminal 
sexual abuse (rape), aggravated assault, and robbery, all against the 
same victim on a single occasion, all of the counts are grouped 
together under Sec.  3D1.2. The aggravated assault will increase the 
guideline range for the rape. The robbery, however, will not. This is 
because the offense guideline for rape (Sec.  2A3.1) includes the most 
common aggravating factors, including injury, that data showed to be 
significant in actual practice. The additional factor of property loss 
ordinarily can be taken into account adequately within the guideline 
range for rape, which is fairly wide. However, an exceptionally large 
property loss in the course of the rape would provide grounds for an 
upward departure. See Sec.  5K2.5 (Property Damage or Loss).''.
    The Commentary to Sec.  3D1.3 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Offense Specific Consideration:
    1. Aggravating Factors Relating to the Offense.--In determining the 
appropriate sentence to impose under 18 U.S.C. 3553(a), evidence that 
the grouping rules under this section result in an offense level that 
substantially understates the seriousness of the defendant's conduct 
may be relevant. See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  3D1.4 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Consideration:
    1. Factors Relating to Assignment of Units.--In determining the 
appropriate sentence to impose under 18 U.S.C. 3553(a), the following 
may be relevant:
    (A) The total number of Units is significantly more than 5 Units.
    (B) There is no increase in the offense level under this guideline, 
because the most serious group has an offense level that is 
substantially higher than all of the other groups.
    (C) The case involved several ungrouped minor offenses resulting in 
an excessive increase in the offense level under this guideline.
    See Sec. Sec.  6A1.1; 6A1.3.''.
    The Commentary to Sec.  3D1.4 captioned ``Background'' is amended 
by striking the following:
    ``When Groups are of roughly comparable seriousness, each Group 
will represent one Unit. When the most serious Group carries an offense 
level substantially higher than that applicable to the other Groups, 
however, counting the lesser Groups fully for purposes of the table 
could add excessive punishment, possibly even more than those offenses 
would carry if prosecuted separately. To avoid this anomalous result 
and produce declining marginal punishment, Groups 9 or more levels less 
serious than the most serious Group should not be counted for purposes 
of the table, and that Groups 5 to 8 levels less serious should be 
treated as equal to one-half of a Group. Thus, if the most serious 
Group is at offense level 15 and if two other Groups are at level 10, 
there would be a total of two Units for purposes of the table (one plus 
one-half plus one-half) and the combined offense level would be 17. 
Inasmuch as the maximum increase provided in the guideline is 5 levels, 
departure would be warranted in the unusual case where the additional 
offenses resulted in a total of significantly more than 5 Units.
    In unusual circumstances, the approach adopted in this section 
could produce adjustments for the additional counts that are inadequate 
or excessive. If there are several groups and the most serious offense 
is considerably more serious than all of the others, there will be no 
increase in the offense level resulting from the additional counts. 
Ordinarily, the court will have latitude to impose added punishment by 
sentencing toward the upper end of the range authorized for the most 
serious offense. Situations in which there will be inadequate scope for 
ensuring appropriate additional punishment for the additional crimes 
are likely to be unusual and can be handled by departure from the 
guidelines. Conversely, it is possible that if there are several minor 
offenses that are not grouped together, application of the rules in 
this part could result in an excessive increase in the sentence range. 
Again, such situations should be infrequent and can be handled through 
departure. An alternative method for ensuring more precise adjustments 
would have been to determine the appropriate offense level adjustment 
through a more complicated mathematical formula; that approach was not 
adopted because of its complexity.'';
    and inserting the following:
    ``When Groups are of roughly comparable seriousness, each Group

[[Page 89197]]

will represent one Unit. When the most serious Group carries an offense 
level substantially higher than that applicable to the other Groups, 
however, counting the lesser Groups fully for purposes of the table 
could add excessive punishment, possibly even more than those offenses 
would carry if prosecuted separately. To avoid this anomalous result 
and produce declining marginal punishment, Groups 9 or more levels less 
serious than the most serious Group should not be counted for purposes 
of the table, and that Groups 5 to 8 levels less serious should be 
treated as equal to one-half of a Group. Thus, if the most serious 
Group is at offense level 15 and if two other Groups are at level 10, 
there would be a total of two Units for purposes of the table (one plus 
one-half plus one-half) and the combined offense level would be 17.''.
    The Commentary to Sec.  3D1.5 is amended by striking ``Chapter Five 
(Determining the Sentence)'' and inserting ``Chapter Five (Determining 
the Sentencing Range and Options Under the Guidelines)''.
    Chapter Three is amended by inserting at the end the following new 
Part F:

``Part F--Early Disposition Program

Sec.  3F1.1. Early Disposition Programs (Policy Statement)

    Upon motion of the Government, the court may decrease the 
defendant's offense level pursuant to an early disposition program 
authorized by the Attorney General of the United States and the United 
States Attorney for the district in which the court resides. The level 
of the decrease shall be consistent with the authorized program within 
the filing district and the government motion filed, but shall be not 
more than 4 levels.

Commentary

    Background: This policy statement implements the directive to the 
Commission in section 401(m)(2)(B) of the Prosecutorial Remedies and 
Other Tools to end the Exploitation of Children Today Act of 2003 (the 
`PROTECT Act ', Public Law 108-21).''.
    The Commentary to Sec.  4A1.1 captioned ``Background'' is amended 
by striking ``Sec.  4A1.3 authorizes the court to depart from the 
otherwise applicable criminal history category in certain 
circumstances'' and inserting ``Sec.  4A1.3 (Additional Considerations 
Based on Inadequacy of Criminal History Category (Policy Statement)) 
provides a list of factors the court may consider in determining 
whether a defendant's criminal history category under- or over-
represents the seriousness of the defendant's criminal history or the 
likelihood that the defendant will commit other crimes''.
    Section 4A1.2(h) is amended by striking ``Sec.  4A1.3 (Departures 
Based on Inadequacy of Criminal History Category (Policy Statement))'' 
and inserting ``Sec.  4A1.3 (Additional Considerations Based on 
Inadequacy of Criminal History Category (Policy Statement))''.
    Section 4A1.2(i) is amended by striking ``Sec.  4A1.3 (Departures 
Based on Inadequacy of Criminal History Category (Policy Statement))'' 
and inserting ``Sec.  4A1.3 (Additional Considerations Based on 
Inadequacy of Criminal History Category (Policy Statement))''.
    Section 4A1.2(j) is amended by striking ``Sec.  4A1.3 (Departures 
Based on Inadequacy of Criminal History Category (Policy Statement))'' 
and inserting ``Sec.  4A1.3 (Additional Considerations Based on 
Inadequacy of Criminal History Category (Policy Statement))''.
    The Commentary to Sec.  4A1.2 captioned ``Applications Notes'' is 
amended--
    in Note 3 by striking the following:
    ``Application of `Single Sentence ' Rule (Subsection (a)(2)).--
    (A) Predicate Offenses.--In some cases, multiple prior sentences 
are treated as a single sentence for purposes of calculating the 
criminal history score under Sec.  4A1.1(a), (b), and (c). However, for 
purposes of determining predicate offenses, a prior sentence included 
in the single sentence should be treated as if it received criminal 
history points, if it independently would have received criminal 
history points. Therefore, an individual prior sentence may serve as a 
predicate under the career offender guideline (see Sec.  4B1.2(c)) or 
other guidelines with predicate offenses, if it independently would 
have received criminal history points. However, because predicate 
offenses may be used only if they are counted `separately' from each 
other (see Sec.  4B1.2(c)), no more than one prior sentence in a given 
single sentence may be used as a predicate offense.
    For example, a defendant's criminal history includes one robbery 
conviction and one theft conviction. The sentences for these offenses 
were imposed on the same day, eight years ago, and are treated as a 
single sentence under Sec.  4A1.2(a)(2). If the defendant received a 
one-year sentence of imprisonment for the robbery and a two-year 
sentence of imprisonment for the theft, to be served concurrently, a 
total of 3 points is added under Sec.  4A1.1(a). Because this 
particular robbery met the definition of a felony crime of violence and 
independently would have received 2 criminal history points under Sec.  
4A1.1(b), it may serve as a predicate under the career offender 
guideline.
    Note, however, that if the sentences in the example above were 
imposed thirteen years ago, the robbery independently would have 
received no criminal history points under Sec.  4A1.1(b), because it 
was not imposed within ten years of the defendant's commencement of the 
instant offense. See Sec.  4A1.2(e)(2). Accordingly, it may not serve 
as a predicate under the career offender guideline.
    (B) Upward Departure Provision.--Treating multiple prior sentences 
as a single sentence may result in a criminal history score that 
underrepresents the seriousness of the defendant's criminal history and 
the danger that the defendant presents to the public. In such a case, 
an upward departure may be warranted. For example, if a defendant was 
convicted of a number of serious non-violent offenses committed on 
different occasions, and the resulting sentences were treated as a 
single sentence because either the sentences resulted from offenses 
contained in the same charging instrument or the defendant was 
sentenced for these offenses on the same day, the assignment of a 
single set of points may not adequately reflect the seriousness of the 
defendant's criminal history or the frequency with which the defendant 
has committed crimes.'';
    and inserting the following:
    ``Application of `Single Sentence' Rule (Subsection (a)(2)).--In 
some cases, multiple prior sentences are treated as a single sentence 
for purposes of calculating the criminal history score under Sec.  
4A1.1(a), (b), and (c). However, for purposes of determining predicate 
offenses, a prior sentence included in the single sentence should be 
treated as if it received criminal history points, if it independently 
would have received criminal history points. Therefore, an individual 
prior sentence may serve as a predicate under the career offender 
guideline (see Sec.  4B1.2(c)) or other guidelines with predicate 
offenses, if it independently would have received criminal history 
points. However, because predicate offenses may be used only if they 
are counted `separately' from each other (see Sec.  4B1.2(c)), no more 
than one prior sentence in a given single sentence may be used as a 
predicate offense.
    For example, a defendant's criminal history includes one robbery 
conviction and one theft conviction. The sentences for these offenses 
were imposed on the same day, eight years ago, and are

[[Page 89198]]

treated as a single sentence under Sec.  4A1.2(a)(2). If the defendant 
received a one-year sentence of imprisonment for the robbery and a two-
year sentence of imprisonment for the theft, to be served concurrently, 
a total of 3 points is added under Sec.  4A1.1(a). Because this 
particular robbery met the definition of a felony crime of violence and 
independently would have received 2 criminal history points under Sec.  
4A1.1(b), it may serve as a predicate under the career offender 
guideline.
    Note, however, that if the sentences in the example above were 
imposed thirteen years ago, the robbery independently would have 
received no criminal history points under Sec.  4A1.1(b), because it 
was not imposed within ten years of the defendant's commencement of the 
instant offense. See Sec.  4A1.2(e)(2). Accordingly, it may not serve 
as a predicate under the career offender guideline.'';
    in Note 6 by striking ``Sec.  4A1.3 (Departures Based on Inadequacy 
of Criminal History Category (Policy Statement))'' and inserting 
``Sec.  4A1.3 (Additional Considerations Based on Inadequacy of 
Criminal History Category (Policy Statement))'';
    and in Note 8 by striking ``in determining whether an upward 
departure is warranted under Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category (Policy Statement))'' and 
inserting ``pursuant to Sec.  4A1.3 (Additional Considerations Based on 
Inadequacy of Criminal History Category (Policy Statement))''.
    The Commentary to Sec.  4A1.2 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Consideration:
    1. Multiple Prior Sentences.--In cases in which multiple prior 
sentences are treated as a single sentence, the court may, in 
determining the appropriate sentence to impose under 18 U.S.C. 3553(a), 
consider whether such treatment results in a criminal history score 
that underrepresents the seriousness of the defendant's criminal 
history and the danger that the defendant presents to the public. See 
Sec.  4A1.3.''.
    Section 4A1.3 is amended--
    in the heading by striking ``Departures'' and inserting 
``Additional Considerations'';
    by striking the following:
    ``(a) Upward Departures.--
    (1) Standard for Upward Departure.--If reliable information 
indicates that the defendant's criminal history category substantially 
under-represents the seriousness of the defendant's criminal history or 
the likelihood that the defendant will commit other crimes, an upward 
departure may be warranted.
    (2) Types of Information Forming the Basis for Upward Departure.--
The information described in subsection (a)(1) may include information 
concerning the following:
    (A) Prior sentence(s) not used in computing the criminal history 
category (e.g., sentences for foreign and tribal convictions).
    (B) Prior sentence(s) of substantially more than one year imposed 
as a result of independent crimes committed on different occasions.
    (C) Prior similar misconduct established by a civil adjudication or 
by a failure to comply with an administrative order.
    (D) Whether the defendant was pending trial or sentencing on 
another charge at the time of the instant offense.
    (E) Prior similar adult criminal conduct not resulting in a 
criminal conviction.
    (3) Prohibition.--A prior arrest record itself shall not be 
considered for purposes of an upward departure under this policy 
statement.
    (4) Determination of Extent of Upward Departure.--
    (A) In General.--Except as provided in subdivision (B), the court 
shall determine the extent of a departure under this subsection by 
using, as a reference, the criminal history category applicable to 
defendants whose criminal history or likelihood to recidivate most 
closely resembles that of the defendant's.
    (B) Upward Departures from Category VI.--In a case in which the 
court determines that the extent and nature of the defendant's criminal 
history, taken together, are sufficient to warrant an upward departure 
from Criminal History Category VI, the court should structure the 
departure by moving incrementally down the sentencing table to the next 
higher offense level in Criminal History Category VI until it finds a 
guideline range appropriate to the case.
    (b) Downward Departures.--
    (1) Standard for Downward Departure.--If reliable information 
indicates that the defendant's criminal history category substantially 
over-represents the seriousness of the defendant's criminal history or 
the likelihood that the defendant will commit other crimes, a downward 
departure may be warranted.
    (2) Prohibitions.--
    (A) Criminal History Category I.--Unless otherwise specified, a 
departure below the lower limit of the applicable guideline range for 
Criminal History Category I is prohibited.
    (B) Armed Career Criminal and Repeat and Dangerous Sex Offender.--A 
downward departure under this subsection is prohibited for (i) an armed 
career criminal within the meaning of Sec.  4B1.4 (Armed Career 
Criminal); and (ii) a repeat and dangerous sex offender against minors 
within the meaning of Sec.  4B1.5 (Repeat and Dangerous Sex Offender 
Against Minors).
    (3) Limitations.--
    (A) Limitation on Extent of Downward Departure for Career 
Offender.--The extent of a downward departure under this subsection for 
a career offender within the meaning of Sec.  4B1.1 (Career Offender) 
may not exceed one criminal history category.
    (B) Limitation on Applicability of Sec.  5C1.2 in Event of Downward 
Departure.--A defendant who receives a downward departure under this 
subsection does not meet the criminal history requirement of subsection 
(a)(1) of Sec.  5C1.2 (Limitation on Applicability of Statutory Maximum 
Sentences in Certain Cases) if the defendant did not otherwise meet 
such requirement before receipt of the downward departure.
    (c) Written Specification of Basis for Departure.--In departing 
from the otherwise applicable criminal history category under this 
policy statement, the court shall specify in writing the following:
    (1) In the case of an upward departure, the specific reasons why 
the applicable criminal history category substantially under-represents 
the seriousness of the defendant's criminal history or the likelihood 
that the defendant will commit other crimes.
    (2) In the case of a downward departure, the specific reasons why 
the applicable criminal history category substantially over-represents 
the seriousness of the defendant's criminal history or the likelihood 
that the defendant will commit other crimes.'';
    and inserting the following:
    ``(a) Aggravating and Mitigating Factors.--In determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a), the court 
should consider whether the defendant's criminal history category 
under- or over-represents the seriousness of the defendant's criminal 
history or the likelihood that the defendant will commit other crimes. 
If established by reliable information, the following aggravating or 
mitigating factors may be relevant to this determination:
    (1) Aggravating Factors.--
    (A) Prior sentence(s) not used in computing the criminal history 
category (e.g., sentences for foreign and tribal convictions).

[[Page 89199]]

    (B) Prior sentences of substantially more than one year imposed as 
a result of independent crimes committed on different occasions.
    (C) Prior similar misconduct established by a civil adjudication or 
by a failure to comply with an administrative order.
    (D) Whether the defendant was pending trial or sentencing on 
another charge at the time of the instant offense.
    (E) Prior similar adult criminal conduct not resulting in a 
criminal conviction.
    (2) Mitigating Factors.--
    (A) 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.
    (B) 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) Prior Arrest Record.--A prior arrest record itself is not a 
relevant consideration under this policy statement.''.
    The Commentary to Sec.  4A1.3 is amended--
    by striking the Commentary captioned ``Application Notes'' and 
``Background'' in its entirety as follows:
    ``Application Notes:
    1. Definitions.--For purposes of this policy statement, the terms 
`depart', `departure', `downward departure', and `upward departure' 
have the meaning given those terms in Application Note 1 of the 
Commentary to Sec.  1B1.1 (Application Instructions).
    2. Upward Departures.--
    (A) Examples.--An upward departure from the defendant's criminal 
history category may be warranted based on any of the following 
circumstances:
    (i) A previous foreign sentence for a serious offense.
    (ii) Receipt of a prior consolidated sentence of ten years for a 
series of serious assaults.
    (iii) A similar instance of large scale fraudulent misconduct 
established by an adjudication in a Securities and Exchange Commission 
enforcement proceeding.
    (iv) Commission of the instant offense while on bail or pretrial 
release for another serious offense.
    (B) Upward Departures from Criminal History Category VI.--In the 
case of an egregious, serious criminal record in which even the 
guideline range for Criminal History Category VI is not adequate to 
reflect the seriousness of the defendant's criminal history, a 
departure above the guideline range for a defendant with Criminal 
History Category VI may be warranted. In determining whether an upward 
departure from Criminal History Category VI is warranted, the court 
should consider that the nature of the prior offenses rather than 
simply their number is often more indicative of the seriousness of the 
defendant's criminal record. For example, a defendant with five prior 
sentences for very large-scale fraud offenses may have 15 criminal 
history points, within the range of points typical for Criminal History 
Category VI, yet have a substantially more serious criminal history 
overall because of the nature of the prior offenses.
    (C) Upward Departures Based on Tribal Court Convictions.--In 
determining whether, or to what extent, an upward departure based on a 
tribal court conviction is appropriate, the court shall consider the 
factors set forth in Sec.  4A1.3(a) above and, in addition, may 
consider relevant factors such as the following:
    (i) The defendant was represented by a lawyer, had the right to a 
trial by jury, and received other due process protections consistent 
with those provided to criminal defendants under the United States 
Constitution.
    (ii) The defendant received the due process protections required 
for criminal defendants under the Indian Civil Rights Act of 1968, 
Public Law 90-284, as amended.
    (iii) The tribe was exercising expanded jurisdiction under the 
Tribal Law and Order Act of 2010, Public Law 111-211.
    (iv) The tribe was exercising expanded jurisdiction under the 
Violence Against Women Reauthorization Act of 2013, Public Law 113-4.
    (v) The tribal court conviction is not based on the same conduct 
that formed the basis for a conviction from another jurisdiction that 
receives criminal history points pursuant to this chapter.
    (vi) The tribal court conviction is for an offense that otherwise 
would be counted under Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History).
    3. 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.
    Background: This policy statement recognizes that the criminal 
history score is unlikely to take into account all the variations in 
the seriousness of criminal history that may occur. For example, a 
defendant with an extensive record of serious, assaultive conduct who 
had received what might now be considered extremely lenient treatment 
in the past might have the same criminal history category as a 
defendant who had a record of less serious conduct. Yet, the first 
defendant's criminal history clearly may be more serious. This may be 
particularly true in the case of younger defendants (e.g., defendants 
in their early twenties or younger) who are more likely to have 
received repeated lenient treatment, yet who may actually pose a 
greater risk of serious recidivism than older defendants. This policy 
statement authorizes the consideration of a departure from the 
guidelines in the limited circumstances where reliable information 
indicates that the criminal history category does not adequately 
reflect the seriousness of the defendant's criminal history or 
likelihood of recidivism, and provides guidance for the consideration 
of such departures.'';
    and inserting the following new Commentary:
    ``Application Note:
    1. Tribal Convictions.--In considering tribal court convictions not 
counted in the criminal history score, the presence of the following 
factors may be relevant to the court's determination:
    (A) The defendant was represented by a lawyer, had the right to a 
trial by jury, and received other due process protections consistent 
with those provided to criminal defendants under the United States 
Constitution.
    (B) The defendant received the due process protections required for 
criminal defendants under the Indian Civil Rights Act of 1968, Public 
Law 90-284, as amended.
    (C) The tribe was exercising expanded jurisdiction under the Tribal 
Law and Order Act of 2010, Public Law 111-211.
    (D) The tribe was exercising expanded jurisdiction under the 
Violence Against Women Reauthorization Act of 2013, Public Law 113-4.
    (E) The tribal court conviction is not based on the same conduct 
that formed

[[Page 89200]]

the basis for a conviction from another jurisdiction that receives 
criminal history points pursuant to this chapter.
    (F) The tribal court conviction is for an offense that otherwise 
would be counted under Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History).
    Background: This policy statement recognizes that the criminal 
history score is unlikely to take into account all the variations in 
the seriousness of criminal history that may occur. This policy 
statement recognizes that consideration of whether additional 
aggravating or mitigating factors established by reliable information 
indicates that the criminal history category assigned does not 
adequately reflect the seriousness of the defendant's criminal history 
or likelihood of recidivism is appropriate in determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a).''.
    The Commentary to Sec.  4B1.1 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Departure Provision for State Misdemeanors.--In a case in 
which one or both of the defendant's `two prior felony convictions' is 
based on an offense that was classified as a misdemeanor at the time of 
sentencing for the instant federal offense, application of the career 
offender guideline may result in a guideline range that substantially 
overrepresents the seriousness of the defendant's criminal history or 
substantially overstates the seriousness of the instant offense. In 
such a case, a downward departure may be warranted without regard to 
the limitation in Sec.  4A1.3(b)(3)(A).''.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Upward Departure for Burglary Involving Violence.--There may 
be cases in which a burglary involves violence, but does not qualify as 
a `crime of violence' as defined in Sec.  4B1.2(a) and, as a result, 
the defendant does not receive a higher offense level or higher 
Criminal History Category that would have applied if the burglary 
qualified as a `crime of violence.' In such a case, an upward departure 
may be appropriate.''.
    The Commentary to Sec.  4B1.2 is amended by inserting at the end 
the following new Commentary:
    ``Additional Considerations:
    1. State Misdemeanors.--In a case in which one or both of the 
defendant's `two prior felony convictions' is based on an offense that 
was classified as a misdemeanor at the time of sentencing for the 
instant federal offense, evidence that application of the career 
offender guideline results in a guideline range that substantially 
overrepresents the seriousness of the defendant's criminal history or 
substantially overstates the seriousness of the instant offense may be 
relevant in determining the appropriate sentence to impose under 18 
U.S.C. 3553(a).
    2. Offense Involving Violence.--In determining the appropriate 
sentence to impose under 18 U.S.C. 3553(a), evidence that a prior 
offense, such as burglary, involved violence but does not qualify as a 
`crime of violence' as defined in Sec.  4B1.2(a) may be relevant.''.
    The Commentary to Sec.  4B1.4 captioned ``Application Notes'' is 
amended in Note 2, in the paragraph that begins ``In a few cases'', by 
striking ``In such a case, an upward departure may be warranted so that 
the conviction under 18 U.S.C. 844(h), Sec.  924(c), or Sec.  929(a) 
does not result in a decrease in the total punishment. An upward 
departure under this paragraph shall not exceed the maximum of the 
guideline range that would have resulted had there not been a count of 
conviction under 18 U.S.C. 844(h), Sec.  924(c), or Sec.  929(a)'' and 
inserting ``In such a case, a sentence greater than the applicable 
guideline range may be warranted so that the conviction under 18 U.S.C. 
844(h), Sec.  924(c), or Sec.  929(a) does not result in a decrease in 
the total punishment. An increase in the total punishment under this 
paragraph shall not exceed the maximum of the guideline range that 
would have resulted had there not been a count of conviction under 18 
U.S.C. 844(h), Sec.  924(c), or Sec.  929(a)''.
    The Commentary to Sec.  4B1.4 captioned ``Background'' is amended 
by striking ``Sec.  4A1.3 (Departures Based on Inadequacy of Criminal 
History Category (Policy Statement))'' and inserting ``Sec.  4A1.3 
(Additional Considerations Based on Inadequacy of Criminal History 
Category (Policy Statement))''.
    The Commentary to Sec.  4C1.1 captioned ``Application Notes'' is 
amended--
    in the heading by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:
    ``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.''.
    The Commentary to Sec.  4C1.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Consideration:
    1. Application of Adjustment.--In determining the appropriate 
sentence to impose under 18 U.S.C. 3553(a), information establishing 
that an adjustment under this guideline substantially underrepresents 
the seriousness of the defendant's criminal history may be relevant. 
For example, a sentence greater than the applicable guideline range 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.''.
    Chapter Five is amended--
    in the heading by striking ``Determining the Sentence'' and 
inserting ``Determining the Sentencing Range and Options Under the 
Guidelines'';
    and in the Introductory Commentary by striking the following:
    `` For certain categories of offenses and offenders, the guidelines 
permit the court to impose either imprisonment or some other sanction 
or combination of sanctions. In determining the type of sentence to 
impose, the sentencing judge should consider the nature and seriousness 
of the conduct, the statutory purposes of sentencing, and the pertinent 
offender characteristics. A sentence is within the guidelines if it 
complies with each applicable section of this chapter. The court should 
impose a sentence sufficient, but not greater than necessary, to comply 
with the statutory purposes of sentencing. 18 U.S.C. 3553(a).'';
    and inserting the following:
    `` Chapter Five sets forth the steps used to determine the 
applicable sentencing range based upon the guideline calculations made 
in Chapters Two through Four. For certain categories of offenses and 
offenders, the guidelines permit the court to impose either 
imprisonment or some other sanction or combination of sanctions. A 
sentence is within the guidelines if it complies with each applicable 
section of this chapter.''.
    The Commentary to Sec.  5C1.1 captioned ``Applications Notes'' is 
amended--
    by striking Note 6 as follows:
    ``6. Departures Based on Specific Treatment Purpose.--There may be 
cases in which a departure from the sentencing options authorized for 
Zone C of the Sentencing Table (under which at least half the minimum 
term must be satisfied by imprisonment) to the sentencing options 
authorized for Zone B of the Sentencing Table (under which all or most 
of the minimum term may

[[Page 89201]]

be satisfied by intermittent confinement, community confinement, or 
home detention instead of imprisonment) is appropriate to accomplish a 
specific treatment purpose. Such a departure should be considered only 
in cases where the court finds that (A) the defendant is an abuser of 
narcotics, other controlled substances, or alcohol, or suffers from a 
significant mental illness, and (B) the defendant's criminality is 
related to the treatment problem to be addressed.
    In determining whether such a departure is appropriate, the court 
should consider, among other things, (1) the likelihood that completion 
of the treatment program will successfully address the treatment 
problem, thereby reducing the risk to the public from further crimes of 
the defendant, and (2) whether imposition of less imprisonment than 
required by Zone C will increase the risk to the public from further 
crimes of the defendant.
    Examples: The following examples both assume the applicable 
guideline range is 12-18 months and the court departs in accordance 
with this application note. Under Zone C rules, the defendant must be 
sentenced to at least six months imprisonment. (1) The defendant is a 
nonviolent drug offender in Criminal History Category I and probation 
is not prohibited by statute. The court departs downward to impose a 
sentence of probation, with twelve months of intermittent confinement, 
community confinement, or home detention and participation in a 
substance abuse treatment program as conditions of probation. (2) The 
defendant is convicted of a Class A or B felony, so probation is 
prohibited by statute (see Sec.  5B1.1(b)). The court departs downward 
to impose a sentence of one month imprisonment, with eleven months in 
community confinement or home detention and participation in a 
substance abuse treatment program as conditions of supervised 
release.'';
    by redesignating Notes 7 through 10 as Notes 6 through 9, 
respectively;
    and in Note 9 (as so redesignated) by striking the following:
    ``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).'';
    and inserting the following:
    ``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).''.
    The Commentary to Sec.  5C1.1 is amended by inserting at the end 
the following new Commentary:
    ``Additional Considerations:
    1. Cases Where the Applicable Guideline Range of Zero-Point 
Offender Overstates the Gravity of the Offense.--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. Sec.  
994(j).
    2. Specific Treatment Purpose.--A sentencing option other than 
those authorized by the applicable zone of the Sentencing Table may be 
appropriate to accomplish a specific treatment purpose addressing a 
problem (e.g., substance abuse, alcohol abuse, or mental illness) that 
is related to the defendant's criminality.''.
    The Commentary to Sec.  5C1.2 captioned ``Application Notes'' is 
amended by inserting at the end the following new Note 7:
    ``7. Interaction of Sec.  5C1.2 and Sec.  4A1.3.--A defendant whose 
criminal history category was adjusted in accordance with Sec.  4A1.3 
(Additional Considerations Based on Inadequacy of Criminal History 
Category (Policy Statement)) does not meet the criminal history 
requirement of Sec.  5C1.2(a)(1) if the defendant did not otherwise 
meet such requirement before application of Sec.  4A1.3.''.
    The Commentary to Sec.  5D1.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking ``The court may depart from this guideline 
and not impose a term of supervised release'' and inserting ``The court 
may not impose a term of supervised release'';
    and in Note 3(C) by striking ``Sec.  5H1.4 (Physical Condition, 
Including Drug or Alcohol Dependence or Abuse; Gambling Addiction)'' 
and inserting ``Subsection (a)(7) of Sec.  6A1.2 (Factors Relating to 
Individual Circumstances (Policy Statement))''.
    The Commentary to Sec.  5E1.2 captioned ``Applications Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. The Commission envisions that for most defendants, the maximum 
of the guideline fine range from subsection (c) will be at least twice 
the amount of gain or loss resulting from the offense. Where, however, 
two times either the amount of gain to the defendant or the amount of 
loss caused by the offense exceeds the maximum of the fine guideline, 
an upward departure from the fine guideline may be warranted.
    Moreover, where a sentence within the applicable fine guideline 
range would not be sufficient to ensure both the disgorgement of any 
gain from the offense that otherwise would not be disgorged (e.g., by 
restitution or forfeiture) and an adequate punitive fine, an upward 
departure from the fine guideline range may be warranted.'';
    and by redesignating Notes 5, 6, and 7 as Notes 4, 5, and 6, 
respectively.
    The Commentary to Sec.  5E1.2 is amended by inserting at the end 
the following new Commentary:
    ``Additional Consideration:
    1. Additional Factors Relating to the Offense.--In determining the 
appropriate amount of the fine to impose pursuant to 18 U.S.C. 3553(a), 
evidence that the fine range determined under this guideline 
understates the seriousness of the offense (e.g., the applicable fine 
guideline range would not provide adequate punishment for the offense 
and ensure disgorgement of any gain from the offense) may be 
relevant.''.
    The Commentary to Sec.  5E1.3 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Sec.  8E1.1'' and inserting ``Sec.  
9E1.1''.
    The Commentary to Sec.  5G1.1 is amended by striking ``; a sentence 
of less than 48 months would be a guideline departure''; and by 
striking ``; a sentence of more than 60 months would be a guideline 
departure''.
    The Commentary to Sec.  5G1.3 captioned ``Application Notes'' is 
amended--
    in Note 4(C) by striking ``Sec.  7B1.3'' and inserting ``Sec.  
8B1.3'';
    by striking Note 4(E) as follows:

[[Page 89202]]

    ``(E) Downward Departure.--Unlike subsection (b), subsection (d) 
does not authorize an adjustment of the sentence for the instant 
offense for a period of imprisonment already served on the undischarged 
term of imprisonment. However, in an extraordinary case involving an 
undischarged term of imprisonment under subsection (d), it may be 
appropriate for the court to downwardly depart. This may occur, for 
example, in a case in which the defendant has served a very substantial 
period of imprisonment on an undischarged term of imprisonment that 
resulted from conduct only partially within the relevant conduct for 
the instant offense. In such a case, a downward departure may be 
warranted to ensure that the combined punishment is not increased 
unduly by the fortuity and timing of separate prosecutions and 
sentencings. Nevertheless, it is intended that a departure pursuant to 
this application note result in a sentence that ensures a reasonable 
incremental punishment for the instant offense of conviction.
    To avoid confusion with the Bureau of Prisons' exclusive authority 
provided under 18 U.S.C. 3585(b) to grant credit for time served under 
certain circumstances, the Commission recommends that any downward 
departure under this application note be clearly stated on the Judgment 
in a Criminal Case Order as a downward departure pursuant to Sec.  
5G1.3(d), rather than as a credit for time served.'';
    and by striking Note 5 as follows:
    ``5. Downward Departure Provision.--In the case of a discharged 
term of imprisonment, a downward departure is not prohibited if the 
defendant (A) has completed serving a term of imprisonment; and (B) 
subsection (b) would have provided an adjustment had that completed 
term of imprisonment been undischarged at the time of sentencing for 
the instant offense. See Sec.  5K2.23 (Discharged Terms of 
Imprisonment).''.
    The Commentary to Sec.  5G1.3 is amended by inserting before the 
Commentary captioned ``Background'' the following new Commentary:
    ``Additional Considerations:
    1. Time Served on Undischarged Terms of Imprisonment.--Unlike 
subsection (b), subsection (d) does not authorize an adjustment of the 
sentence for the instant offense for a period of imprisonment already 
served on the undischarged term of imprisonment. However, in an 
extraordinary case involving an undischarged term of imprisonment under 
subsection (d), it may be appropriate for the court to impose a 
sentence below the otherwise applicable guideline range. This may 
occur, for example, in a case in which the defendant has served a very 
substantial period of imprisonment on an undischarged term of 
imprisonment that resulted from conduct only partially within the 
relevant conduct for the instant offense. In such a case, a sentence 
below the applicable guideline range may be warranted to ensure that 
the combined punishment is not increased unduly by the fortuity and 
timing of separate prosecutions and sentencings. Nevertheless, it is 
intended that a sentence below the applicable guideline range pursuant 
to this additional consideration result in a sentence that ensures a 
reasonable incremental punishment for the instant offense of 
conviction.
    To avoid confusion with the Bureau of Prisons' exclusive authority 
provided under 18 U.S.C. 3585(b) to grant credit for time served under 
certain circumstances, the Commission recommends that any sentence 
below the applicable guideline range under this additional 
consideration be clearly stated as such on the Judgment in a Criminal 
Case Order, rather than as a credit for time served.
    2. Discharged Terms of Imprisonment.--In a case where (A) the 
defendant has completed serving a term of imprisonment, and (B) 
subsection (b) of Sec.  5G1.3 (Imposition of a Sentence on a Defendant 
Subject to Undischarged Term of Imprisonment or Anticipated Term of 
Imprisonment) would have provided an adjustment had that completed term 
of imprisonment been undischarged at the time of sentencing for the 
instant offense, it may be appropriate for the court to impose a 
sentence below the otherwise applicable guideline range.''.
    Chapter Five is amended by striking Part H in its entirety as 
follows:

``Part H--Specific Offender Characteristics

Introductory Commentary

    This part addresses the relevance of certain specific offender 
characteristics in sentencing. The Sentencing Reform Act (the `Act') 
contains several provisions regarding specific offender 
characteristics:
    First, the Act directs the Commission to ensure that the guidelines 
and policy statements `are entirely neutral' as to five 
characteristics--race, sex, national origin, creed, and socioeconomic 
status. See 28 U.S.C. 994(d).
    Second, the Act directs the Commission to consider whether eleven 
specific offender characteristics, `among others', have any relevance 
to the nature, extent, place of service, or other aspects of an 
appropriate sentence, and to take them into account in the guidelines 
and policy statements only to the extent that they do have relevance. 
See 28 U.S.C. 994(d).
    Third, the Act directs the Commission to ensure that the guidelines 
and policy statements, in recommending a term of imprisonment or length 
of a term of imprisonment, reflect the `general inappropriateness' of 
considering five of those characteristics--education; vocational 
skills; employment record; family ties and responsibilities; and 
community ties. See 28 U.S.C. 994(e).
    Fourth, the Act also directs the sentencing court, in determining 
the particular sentence to be imposed, to consider, among other 
factors, `the history and characteristics of the defendant'. See 18 
U.S.C. 3553(a)(1).
    Specific offender characteristics are taken into account in the 
guidelines in several ways. One important specific offender 
characteristic is the defendant's criminal history, see 28 U.S.C. 
994(d)(10), which is taken into account in the guidelines in Chapter 
Four (Criminal History and Criminal Livelihood). See Sec.  5H1.8 
(Criminal History). Another specific offender characteristic in the 
guidelines is the degree of dependence upon criminal history for a 
livelihood, see 28 U.S.C. 994(d)(11), which is taken into account in 
Chapter Four, Part B (Career Offenders and Criminal Livelihood). See 
Sec.  5H1.9 (Dependence upon Criminal Activity for a Livelihood). Other 
specific offender characteristics are accounted for elsewhere in this 
manual. See, e.g., Sec. Sec.  2C1.1(a)(1) and 2C1.2(a)(1) (providing 
alternative base offense levels if the defendant was a public 
official); 3B1.3 (Abuse of Position of Trust or Use of Special Skill); 
and 3E1.1 (Acceptance of Responsibility).
    The Supreme Court has emphasized that the advisory guideline system 
should `continue to move sentencing in Congress' preferred direction, 
helping to avoid excessive sentencing disparities while maintaining 
flexibility sufficient to individualize sentences where necessary.' See 
United States v. Booker, 543 U.S. 220, 264-65 (2005). Although the 
court must consider `the history and characteristics of the defendant' 
among other factors, see 18 U.S.C. 3553(a), in order to avoid 
unwarranted sentencing disparities the court should not give them 
excessive weight. Generally, the most appropriate use of specific 
offender characteristics is to consider them not as a reason for a 
sentence outside the applicable guideline range but for other reasons, 
such as in determining the sentence within the

[[Page 89203]]

applicable guideline range, the type of sentence (e.g., probation or 
imprisonment) within the sentencing options available for the 
applicable Zone on the Sentencing Table, and various other aspects of 
an appropriate sentence. To avoid unwarranted sentencing disparities 
among defendants with similar records who have been found guilty of 
similar conduct, see 18 U.S.C. 3553(a)(6), 28 U.S.C. 991(b)(1)(B), the 
guideline range, which reflects the defendant's criminal conduct and 
the defendant's criminal history, should continue to be `the starting 
point and the initial benchmark.' Gall v. United States, 552 U.S. 38, 
49 (2007).
    Accordingly, the purpose of this part is to provide sentencing 
courts with a framework for ad-dressing specific offender 
characteristics in a reasonably consistent manner. Using such a 
framework in a uniform manner will help `secure nationwide 
consistency,' see Gall v. United States, 552 U.S. 38, 49 (2007), `avoid 
unwarranted sentencing disparities,' see 28 U.S.C. 991(b)(1)(B), 18 
U.S.C. 3553(a)(6), `provide certainty and fairness,' see 28 U.S.C. 
991(b)(1)(B), and `promote respect for the law,' see 18 U.S.C. 
3553(a)(2)(A).
    This part allocates specific offender characteristics into three 
general categories.
    In the first category are specific offender characteristics the 
consideration of which Congress has prohibited (e.g., Sec.  5H1.10 
(Race, Sex, National Origin, Creed, Religion, and Socio-Economic 
Status)) or that the Commission has determined should be prohibited.
    In the second category are specific offender characteristics that 
Congress directed the Commission to take into account in the guidelines 
only to the extent that they have relevance to sentencing. See 28 
U.S.C. 994(d). For some of these, the policy statements indicate that 
these characteristics may be relevant in determining whether a sentence 
outside the applicable guideline range is warranted (e.g., age; mental 
and emotional condition; physical condition). These characteristics may 
warrant a sentence outside the applicable guideline range if the 
characteristic, individually or in combination with other such 
characteristics, is present to an unusual degree and distinguishes the 
case from the typical cases covered by the guidelines. These specific 
offender characteristics also may be considered for other reasons, such 
as in determining the sentence within the applicable guideline range, 
the type of sentence (e.g., probation or imprisonment) within the 
sentencing options available for the applicable Zone on the Sentencing 
Table, and various other aspects of an appropriate sentence.
    In the third category are specific offender characteristics that 
Congress directed the Commission to ensure are reflected in the 
guidelines and policy statements as generally inappropriate in 
recommending a term of imprisonment or length of a term of 
imprisonment. See 28 U.S.C. 994(e). The policy statements indicate that 
these characteristics are not ordinarily relevant to the determination 
of whether a sentence should be outside the applicable guideline range. 
Unless expressly stated, this does not mean that the Commission views 
such circumstances as necessarily inappropriate to the determination of 
the sentence within the applicable guideline range, the type of 
sentence (e.g., probation or imprisonment) within the sentencing 
options available for the applicable Zone on the Sentencing Table, or 
various other aspects of an appropriate sentence (e.g., the appropriate 
conditions of probation or supervised release). Furthermore, although 
these circumstances are not ordinarily relevant to the determination of 
whether a sentence should be outside the applicable guideline range, 
they may be relevant to this determination in exceptional cases. They 
also may be relevant if a combination of such circumstances makes the 
case an exceptional one, but only if each such circumstance is 
identified as an affirmative ground for departure and is present in the 
case to a substantial degree. See Sec.  5K2.0 (Grounds for Departure).
    As with the other provisions in this manual, these policy 
statements `are evolutionary in nature'. See Chapter One, Part A, 
Subpart 2 (Continuing Evolution and Role of the Guidelines); 28 U.S.C. 
994(o). The Commission expects, and the Sentencing Reform Act 
contemplates, that continuing research, experience, and analysis will 
result in modifications and revisions.
    The nature, extent, and significance of specific offender 
characteristics can involve a range of considerations. The Commission 
will continue to provide information to the courts on the relevance of 
specific offender characteristics in sentencing, as the Sentencing 
Reform Act contemplates. See, e.g., 28 U.S.C. 995(a)(12)(A) (the 
Commission serves as a `clearinghouse and information center' on 
federal sentencing). Among other things, this may include information 
on the use of specific offender characteristics, individually and in 
combination, in determining the sentence to be imposed (including, 
where available, information on rates of use, criteria for use, and 
reasons for use); the relationship, if any, between specific offender 
characteristics and (A) the `forbidden factors' specified in 28 U.S.C. 
994(d) and (B) the `discouraged factors' specified in 28 U.S.C. 994(e); 
and the relationship, if any, between specific offender characteristics 
and the statutory purposes of sentencing.

Sec.  5H1.1. Age (Policy Statement)

    Age (including youth) may be relevant in determining whether a 
departure is warranted, if considerations based on age, individually or 
in combination with other offender characteristics, are present to an 
unusual degree and distinguish the case from the typical cases covered 
by the guidelines. Age may be a reason to depart downward in a case in 
which the defendant is elderly and in-firm and where a form of 
punishment such as home confinement might be equally efficient as and 
less costly than incarceration. Physical condition, which may be 
related to age, is addressed at Sec.  5H1.4 (Physical Condition, 
Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).

Sec.  5H1.2. Education and Vocational Skills (Policy Statement)

    Education and vocational skills are not ordinarily relevant in 
determining whether a departure is warranted, but the extent to which a 
defendant may have misused special training or education to facilitate 
criminal activity is an express guideline factor. See Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill).
    Education and vocational skills may be relevant in determining the 
conditions of probation or supervised release for rehabilitative 
purposes, for public protection by restricting activities that allow 
for the utilization of a certain skill, or in determining the 
appropriate type of community service.

Sec.  5H1.3. Mental and Emotional Conditions (Policy Statement)

    Mental and emotional conditions may be relevant in determining 
whether a departure is warranted, if such conditions, individually or 
in combination with other offender characteristics, are present to an 
unusual degree and distinguish the case from the typical cases covered 
by the guidelines. See also Chapter Five, Part K, Subpart 2 (Other 
Grounds for Departure).

[[Page 89204]]

    In certain cases a downward departure may be appropriate to 
accomplish a specific treatment purpose. See Sec.  5C1.1, Application 
Note 7.
    Mental and emotional conditions may be relevant in determining the 
conditions of probation or supervised release; e.g., participation in a 
mental health program (see Sec. Sec.  5B1.3(d)(5) and 5D1.3(d)(5)).

Sec.  5H1.4. Physical Condition, Including Drug or Alcohol Dependence 
or Abuse; Gambling Addiction (Policy Statement)

    Physical condition or appearance, including physique, may be 
relevant in determining whether a departure is warranted, if the 
condition or appearance, individually or in combination with other 
offender characteristics, is present to an unusual degree and 
distinguishes the case from the typical cases covered by the 
guidelines. An extraordinary physical impairment may be a reason to de-
part downward; e.g., in the case of a seriously infirm defendant, home 
detention may be as efficient as, and less costly than, imprisonment.
    Drug or alcohol dependence or abuse ordinarily is not a reason for 
a downward departure. Substance abuse is highly correlated to an 
increased propensity to commit crime. Due to this increased risk, it is 
highly recommended that a defendant who is incarcerated also be 
sentenced to supervised release with a requirement that the defendant 
participate in an appropriate substance abuse program (see Sec.  
5D1.3(d)(4)). If participation in a substance abuse program is 
required, the length of supervised release should take into account the 
length of time necessary for the probation office to judge the success 
of the program.
    In certain cases a downward departure may be appropriate to 
accomplish a specific treatment purpose. See Sec.  5C1.1, Application 
Note 7.
    In a case in which a defendant who is a substance abuser is 
sentenced to probation, it is strongly recommended that the conditions 
of probation contain a requirement that the defendant participate in an 
appropriate substance abuse program (see Sec.  5B1.3(d)(4)).
    Addiction to gambling is not a reason for a downward departure.

Sec.  5H1.5. Employment Record (Policy Statement)

    Employment record is not ordinarily relevant in determining whether 
a departure is warranted.
    Employment record may be relevant in determining the conditions of 
probation or supervised release (e.g., the appropriate hours of home 
detention).

Sec.  5H1.6. Family Ties and Responsibilities (Policy Statement)

    In sentencing a defendant convicted of an offense other than an 
offense de-scribed in the following paragraph, family ties and 
responsibilities are not ordinarily relevant in determining whether a 
departure may be warranted.
    In sentencing a defendant convicted of an offense involving a minor 
victim under section 1201, an offense under section 1591, or an offense 
under chapter 71, 109A, 110, or 117, of title 18, United States Code, 
family ties and responsibilities and community ties are not relevant in 
determining whether a sentence should be below the applicable guideline 
range.
    Family responsibilities that are complied with may be relevant to 
the determination of the amount of restitution or fine.

Commentary

    Application Note:
    1. Circumstances to Consider.--
    (A) In General.--In determining whether a departure is warranted 
under this policy statement, the court shall consider the following 
non-exhaustive list of circumstances:
    (i) The seriousness of the offense.
    (ii) The involvement in the offense, if any, of members of the 
defendant's family.
    (iii) The danger, if any, to members of the defendant's family as a 
result of the offense.
    (B) Departures Based on Loss of Caretaking or Financial Support.--A 
departure under this policy statement based on the loss of caretaking 
or financial support of the defendant's family requires, in addition to 
the court's consideration of the non-exhaustive list of circumstances 
in subdivision (A), the presence of the following circumstances:
    (i) The defendant's service of a sentence within the applicable 
guideline range will cause a substantial, direct, and specific loss of 
essential caretaking, or essential financial support, to the 
defendant's family.
    (ii) The loss of caretaking or financial support substantially 
exceeds the harm ordinarily incident to incarceration for a similarly 
situated defendant. For example, the fact that the defendant's family 
might incur some degree of financial hardship or suffer to some extent 
from the absence of a parent through incarceration is not in itself 
sufficient as a basis for departure because such hardship or suffering 
is of a sort ordinarily incident to incarceration.
    (iii) The loss of caretaking or financial support is one for which 
no effective remedial or ameliorative programs reasonably are 
available, making the defendant's caretaking or financial support 
irreplaceable to the defendant's family.
    (iv) The departure effectively will address the loss of caretaking 
or financial support.
    Background: Section 401(b)(4) of Public Law 108-21 directly amended 
this policy statement to add the second paragraph, effective April 30, 
2003.

Sec.  5H1.7. Role in the Offense (Policy Statement)

    A defendant's role in the offense is relevant in determining the 
applicable guideline range (see Chapter Three, Part B (Role in the 
Offense)) but is not a basis for departing from that range (see 
subsection (d) of Sec.  5K2.0 (Grounds for Departures)).

Sec.  5H1.8. Criminal History (Policy Statement)

    A defendant's criminal history is relevant in determining the 
applicable criminal history category. See Chapter Four (Criminal 
History and Criminal Livelihood). For grounds of departure based on the 
defendant's criminal history, see Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category).

Sec.  5H1.9. Dependence upon Criminal Activity for a Livelihood (Policy 
Statement)

    The degree to which a defendant depends upon criminal activity for 
a livelihood is relevant in determining the appropriate sentence. See 
Chapter Four, Part B (Career Offenders and Criminal Livelihood).

Sec.  5H1.10. Race, Sex, National Origin, Creed, Religion, and Socio-
Economic Status (Policy Statement)

    These factors are not relevant in the determination of a sentence.

Sec.  5H1.11. Military, Civic, Charitable, or Public Service; 
Employment-Related Contributions; Record of Prior Good Works (Policy 
Statement)

    Military service may be relevant in determining whether a departure 
is war-ranted, if the military service, individually or in combination 
with other offender characteristics, is present to an unusual degree 
and distinguishes the case from the typical cases covered by the 
guidelines.
    Civic, charitable, or public service; employment-related 
contributions; and

[[Page 89205]]

similar prior good works are not ordinarily relevant in determining 
whether a departure is warranted.

Sec.  5H1.12. Lack of Guidance as a Youth and Similar Circumstances 
(Policy Statement)

    Lack of guidance as a youth and similar circumstances indicating a 
disadvantaged upbringing are not relevant grounds in determining 
whether a departure is warranted.''.
    Chapter Five, Part K is amended in the heading by striking 
``DEPARTURES'' and inserting ``ASSISTANCE TO AUTHORITIES''.
    Chapter Five, Part K, Subpart 1 is amended by striking the heading 
as follows:

``1. Substantial Assistance To Authorities''

    Section 5K1.1 is amended by striking ``the court may depart from 
the guidelines'' and inserting ``the court may impose a sentence that 
is below the otherwise applicable guideline range''.
    Chapter Five, Part K is amended by striking Subparts 2 and 3 in 
their entirety as follows:

``2. Other Grounds For Departure

Sec.  5K2.0. Grounds for Departure (Policy Statement)

    (a) Upward Departures in General and Downward Departures in 
Criminal Cases Other than Child Crimes and Sexual Offenses.--
    (1) In General.--The sentencing court may depart from the 
applicable guideline range if--
    (A) in the case of offenses other than child crimes and sexual 
offenses, the court finds, pursuant to 18 U.S.C. 3553(b)(1), that there 
exists an aggravating or mitigating circumstance; or
    (B) in the case of child crimes and sexual offenses, the court 
finds, pursuant to 18 U.S.C. 3553(b)(2)(A)(i), that there exists an 
aggravating circumstance,
    of a kind, or to a degree, not adequately taken into consideration 
by the Sentencing Commission in formulating the guidelines that, in 
order to advance the objectives set forth in 18 U.S.C. 3553(a)(2), 
should result in a sentence different from that described.
    (2) Departures Based on Circumstances of a Kind Not Adequately 
Taken into Consideration.--
    (A) Identified Circumstances.--This subpart (Chapter Five, Part K, 
Subpart 2 (Other Grounds for Departure)) identifies some of the 
circumstances that the Commission may have not adequately taken into 
consideration in determining the applicable guideline range (e.g., as a 
specific offense characteristic or other adjustment). If any such 
circumstance is present in the case and has not adequately been taken 
into consideration in determining the applicable guideline range, a 
departure consistent with 18 U.S.C. 3553(b) and the provisions of this 
subpart may be warranted.
    (B) Unidentified Circumstances.--A departure may be warranted in 
the exceptional case in which there is present a circumstance that the 
Commission has not identified in the guidelines but that nevertheless 
is relevant to determining the appropriate sentence.
    (3) Departures Based on Circumstances Present to a Degree Not 
Adequately Taken into Consideration.--A departure may be warranted in 
an exceptional case, even though the circumstance that forms the basis 
for the departure is taken into consideration in determining the 
guideline range, if the court determines that such circumstance is 
present in the offense to a degree substantially in excess of, or 
substantially below, that which ordinarily is involved in that kind of 
offense.
    (4) Departures Based on Not Ordinarily Relevant Offender 
Characteristics and Other Circumstances.--An offender characteristic or 
other circumstance identified in Chapter Five, Part H (Offender 
Characteristics) or elsewhere in the guidelines as not ordinarily 
relevant in determining whether a departure is warranted may be 
relevant to this determination only if such offender characteristic or 
other circumstance is present to an exceptional degree.
    (b) Downward Departures in Child Crimes and Sexual Offenses.--Under 
18 U.S.C. 3553(b)(2)(A)(ii), the sentencing court may impose a sentence 
below the range established by the applicable guidelines only if the 
court finds that there exists a mitigating circumstance of a kind, or 
to a degree, that--
    (1) has been affirmatively and specifically identified as a 
permissible ground of downward departure in the sentencing guidelines 
or policy statements issued under section 994(a) of title 28, United 
States Code, taking account of any amendments to such sentencing 
guidelines or policy statements by act of Congress;
    (2) has not adequately been taken into consideration by the 
Sentencing Commission in formulating the guidelines; and
    (3) should result in a sentence different from that described.
    The grounds enumerated in this Part K of Chapter Five are the sole 
grounds that have been affirmatively and specifically identified as a 
permissible ground of downward departure in these sentencing guidelines 
and policy statements. Thus, notwithstanding any other reference to 
authority to depart downward elsewhere in this Sentencing Manual, a 
ground of downward departure has not been affirmatively and 
specifically identified as a permissible ground of downward departure 
within the meaning of section 3553(b)(2) unless it is expressly 
enumerated in this Part K as a ground upon which a downward departure 
may be granted.
    (c) Limitation on Departures Based on Multiple Circumstances.--The 
court may depart from the applicable guideline range based on a 
combination of two or more offender characteristics or other 
circumstances, none of which independently is sufficient to provide a 
basis for departure, only if--
    (1) such offender characteristics or other circumstances, taken 
together, make the case an exceptional one; and
    (2) each such offender characteristic or other circumstance is--
    (A) present to a substantial degree; and
    (B) identified in the guidelines as a permissible ground for 
departure, even if such offender characteristic or other circumstance 
is not ordinarily relevant to a determination of whether a departure is 
warranted.
    (d) Prohibited Departures.--Notwithstanding subsections (a) and (b) 
of this policy statement, or any other provision in the guidelines, the 
court may not depart from the applicable guideline range based on any 
of the following circumstances:
    (1) Any circumstance specifically prohibited as a ground for 
departure in Sec. Sec.  5H1.10 (Race, Sex, National Origin, Creed, 
Religion, and Socio-Economic Status), 5H1.12 (Lack of Guidance as a 
Youth and Similar Circumstances), the last sentence of 5H1.4 (Physical 
Condition, Including Drug or Alcohol Dependence or Abuse; Gambling 
Addiction), and the last sentence of 5K2.12 (Coercion and Duress).
    (2) The defendant's acceptance of responsibility for the offense, 
which may be taken into account only under Sec.  3E1.1 (Acceptance of 
Responsibility).
    (3) The defendant's aggravating or mitigating role in the offense, 
which may be taken into account only under Sec.  3B1.1 (Aggravating 
Role) or Sec.  3B1.2 (Mitigating Role), respectively.
    (4) The defendant's decision, in and of itself, to plead guilty to 
the offense or to enter a plea agreement with respect to the offense 
(i.e., a departure may not

[[Page 89206]]

be based merely on the fact that the defendant decided to plead guilty 
or to enter into a plea agreement, but a departure may be based on 
justifiable, non-prohibited reasons as part of a sentence that is 
recommended, or agreed to, in the plea agreement and accepted by the 
court. See Sec.  6B1.2 (Standards for Acceptance of Plea Agreement).
    (5) The defendant's fulfillment of restitution obligations only to 
the extent required by law including the guidelines (i.e., a departure 
may not be based on unexceptional efforts to remedy the harm caused by 
the offense).
    (6) Any other circumstance specifically prohibited as a ground for 
departure in the guidelines.
    (e) Requirement of Specific Reasons for Departure.--If the court 
departs from the applicable guideline range, it shall state, pursuant 
to 18 U.S.C. 3553(c), its specific reasons for departure in open court 
at the time of sentencing and, with limited exception in the case of 
statements received in camera, shall state those reasons with 
specificity in the statement of reasons form.

Commentary

    Application Notes:
    1. Definitions.--For purposes of this policy statement:
    `Circumstance' includes, as appropriate, an offender characteristic 
or any other offense factor.
    `Depart', `departure', `downward departure', and `upward departure' 
have the meaning given those terms in Application Note 1 of the 
Commentary to Sec.  1B1.1 (Application Instructions).
    2. Scope of this Policy Statement.--
    (A) Departures Covered by this Policy Statement.--This policy 
statement covers departures from the applicable guideline range based 
on offense characteristics or offender characteristics of a kind, or to 
a degree, not adequately taken into consideration in determining that 
range. See 18 U.S.C. 3553(b).
    Subsection (a) of this policy statement applies to upward 
departures in all cases covered by the guidelines and to downward 
departures in all such cases except for downward departures in child 
crimes and sexual offenses.
    Subsection (b) of this policy statement applies only to downward 
departures in child crimes and sexual offenses.
    (B) Departures Covered by Other Guidelines.--This policy statement 
does not cover the following departures, which are addressed elsewhere 
in the guidelines: (i) departures based on the defendant's criminal 
history (see Chapter Four (Criminal History and Criminal Livelihood), 
particularly Sec.  4A1.3 (Departures Based on Inadequacy of Criminal 
History Category)); (ii) departures based on the defendant's 
substantial assistance to the authorities (see Sec.  5K1.1 (Substantial 
Assistance to Authorities)); and (iii) departures based on early 
disposition programs (see Sec.  5K3.1 (Early Disposition Programs)).
    3. Kinds and Expected Frequency of Departures under Subsection 
(a).--As set forth in subsection (a), there generally are two kinds of 
departures from the guidelines based on offense characteristics and/or 
offender characteristics: (A) departures based on circumstances of a 
kind not adequately taken into consideration in the guidelines; and (B) 
departures based on circumstances that are present to a degree not 
adequately taken into consideration in the guidelines.
    (A) Departures Based on Circumstances of a Kind Not Adequately 
Taken into Account in Guidelines.--Subsection (a)(2) authorizes the 
court to depart if there exists an aggravating or a mitigating 
circumstance in a case under 18 U.S.C. 3553(b)(1), or an aggravating 
circumstance in a case under 18 U.S.C. 3553(b)(2)(A)(i), of a kind not 
adequately taken into consideration in the guidelines.
    (i) Identified Circumstances.--This subpart (Chapter Five, Part K, 
Subpart 2) identifies several circumstances that the Commission may 
have not adequately taken into consideration in setting the offense 
level for certain cases. Offense guidelines in Chapter Two (Offense 
Conduct) and adjustments in Chapter Three (Adjustments) sometimes 
identify circumstances the Commission may have not adequately taken 
into consideration in setting the offense level for offenses covered by 
those guidelines. If the offense guideline in Chapter Two or an 
adjustment in Chapter Three does not adequately take that circumstance 
into consideration in setting the offense level for the offense, and 
only to the extent not adequately taken into consideration, a departure 
based on that circumstance may be warranted.
    (ii) Unidentified Circumstances.--A case may involve circumstances, 
in addition to those identified by the guidelines, that have not 
adequately been taken into consideration by the Commission, and the 
presence of any such circumstance may warrant departure from the 
guidelines in that case. However, inasmuch as the Commission has 
continued to monitor and refine the guidelines since their inception to 
take into consideration relevant circumstances in sentencing, it is 
expected that departures based on such unidentified circumstances will 
occur rarely and only in exceptional cases.
    (B) Departures Based on Circumstances Present to a Degree Not 
Adequately Taken into Consideration in Guidelines.--
    (i) In General.--Subsection (a)(3) authorizes the court to depart 
if there exists an aggravating or a mitigating circumstance in a case 
under 18 U.S.C. 3553(b)(1), or an aggravating circumstance in a case 
under 18 U.S.C. 3553(b)(2)(A)(i), to a degree not adequately taken into 
consideration in the guidelines. However, inasmuch as the Commission 
has continued to monitor and refine the guidelines since their 
inception to determine the most appropriate weight to be accorded the 
mitigating and aggravating circumstances specified in the guidelines, 
it is expected that departures based on the weight accorded to any such 
circumstance will occur rarely and only in exceptional cases.
    (ii) Examples.--As set forth in subsection (a)(3), if the 
applicable offense guideline and adjustments take into consideration a 
circumstance identified in this subpart, departure is warranted only if 
the circumstance is present to a degree substantially in excess of that 
which ordinarily is involved in the offense. Accordingly, a departure 
pursuant to Sec.  5K2.7 for the disruption of a governmental function 
would have to be substantial to warrant departure from the guidelines 
when the applicable offense guideline is bribery or obstruction of 
justice. When the guideline covering the mailing of injurious articles 
is applicable, however, and the offense caused disruption of a 
governmental function, departure from the applicable guideline range 
more readily would be appropriate. Similarly, physical injury would not 
warrant departure from the guidelines when the robbery offense 
guideline is applicable because the robbery guideline includes a 
specific adjustment based on the extent of any injury. However, because 
the robbery guideline does not deal with injury to more than one 
victim, departure may be warranted if several persons were injured.
    (C) Departures Based on Circumstances Identified as Not Ordinarily 
Relevant.--Because certain circumstances are specified in the 
guidelines as not ordinarily relevant to sentencing (see, e.g., Chapter 
Five, Part H (Specific Offender Characteristics)), a departure based on 
any one of such circumstances should occur only in exceptional cases, 
and only if the circumstance is present in the case to an exceptional 
degree. If two or more of

[[Page 89207]]

such circumstances each is present in the case to a substantial degree, 
however, and taken together make the case an exceptional one, the court 
may consider whether a departure would be warranted pursuant to 
subsection (c). Departures based on a combination of not ordinarily 
relevant circumstances that are present to a substantial degree should 
occur extremely rarely and only in exceptional cases.
    In addition, as required by subsection (e), each circumstance 
forming the basis for a departure described in this subdivision shall 
be stated with specificity in the statement of reasons form.
    4. Downward Departures in Child Crimes and Sexual Offenses.--
    (A) Definition.--For purposes of this policy statement, the term 
`child crimes and sexual offenses' means offenses under any of the 
following: 18 U.S.C. 1201 (involving a minor victim), 18 U.S.C. 1591, 
or chapter 71, 109A, 110, or 117 of title 18, United States Code.
    (B) Standard for Departure.--
    (i) Requirement of Affirmative and Specific Identification of 
Departure Ground.--The standard for a downward departure in child 
crimes and sexual offenses differs from the standard for other 
departures under this policy statement in that it includes a 
requirement, set forth in 18 U.S.C. 3553(b)(2)(A)(ii)(I) and subsection 
(b)(1) of this guideline, that any mitigating circumstance that forms 
the basis for such a downward departure be affirmatively and 
specifically identified as a ground for downward departure in this part 
(i.e., Chapter Five, Part K).
    (ii) Application of Subsection (b)(2).--The commentary in 
Application Note 3 of this policy statement, except for the commentary 
in Application Note 3(A)(ii) relating to unidentified circumstances, 
shall apply to the court's determination of whether a case meets the 
requirement, set forth in subsection 18 U.S.C. 3553(b)(2)(A)(ii)(II) 
and subsection (b)(2) of this policy statement, that the mitigating 
circumstance forming the basis for a downward departure in child crimes 
and sexual offenses be of kind, or to a degree, not adequately taken 
into consideration by the Commission.
    5. Departures Based on Plea Agreements.--Subsection (d)(4) 
prohibits a downward departure based only on the defendant's decision, 
in and of itself, to plead guilty to the offense or to enter a plea 
agreement with respect to the offense. Even though a departure may not 
be based merely on the fact that the defendant agreed to plead guilty 
or enter a plea agreement, a departure may be based on justifiable, 
non-prohibited reasons for departure as part of a sentence that is 
recommended, or agreed to, in the plea agreement and accepted by the 
court. See Sec.  6B1.2 (Standards for Acceptance of Plea Agreements). 
In cases in which the court departs based on such reasons as set forth 
in the plea agreement, the court must state the reasons for departure 
with specificity in the statement of reasons form, as required by 
subsection (e).
    Background: This policy statement sets forth the standards for 
departing from the applicable guideline range based on offense and 
offender characteristics of a kind, or to a degree, not adequately 
considered by the Commission. Circumstances the Commission has 
determined are not ordinarily relevant to determining whether a 
departure is warranted or are prohibited as bases for departure are 
addressed in Chapter Five, Part H (Offender Characteristics) and in 
this policy statement. Other departures, such as those based on the 
defendant's criminal history, the defendant's substantial assistance to 
authorities, and early disposition programs, are addressed elsewhere in 
the guidelines.
    As acknowledged by Congress in the Sentencing Reform Act and by the 
Commission when the first set of guidelines was promulgated, `it is 
difficult to prescribe a single set of guidelines that encompasses the 
vast range of human conduct potentially relevant to a sentencing 
decision.' (See Chapter One, Part A). Departures, therefore, perform an 
integral function in the sentencing guideline system. Departures permit 
courts to impose an appropriate sentence in the exceptional case in 
which mechanical application of the guidelines would fail to achieve 
the statutory purposes and goals of sentencing. Departures also help 
maintain `sufficient flexibility to permit individualized sentences 
when warranted by mitigating or aggravating factors not taken into 
account in the establishment of general sentencing practices.' 28 
U.S.C. 991(b)(1)(B). By monitoring when courts depart from the 
guidelines and by analyzing their stated reasons for doing so, along 
with appellate cases reviewing these departures, the Commission can 
further refine the guidelines to specify more precisely when departures 
should and should not be permitted.
    As reaffirmed in the Prosecutorial Remedies and Other Tools to end 
the Exploitation of Children Today Act of 2003 (the `PROTECT Act', 
Public Law 108-21), circumstances warranting departure should be rare. 
Departures were never intended to permit sentencing courts to 
substitute their policy judgments for those of Congress and the 
Sentencing Commission. Departure in such circumstances would produce 
unwarranted sentencing disparity, which the Sentencing Reform Act was 
designed to avoid.
    In order for appellate courts to fulfill their statutory duties 
under 18 U.S.C. 3742 and for the Commission to fulfill its ongoing 
responsibility to refine the guidelines in light of information it 
receives on departures, it is essential that sentencing courts state 
with specificity the reasons for departure, as required by the PROTECT 
Act.
    This policy statement, including its commentary, was substantially 
revised, effective October 27, 2003, in response to directives 
contained in the PROTECT Act, particularly the directive in section 
401(m) of that Act to--
    `(1) review the grounds of downward departure that are authorized 
by the sentencing guidelines, policy statements, and official 
commentary of the Sentencing Commission; and
    (2) promulgate, pursuant to section 994 of title 28, United States 
Code--
    (A) appropriate amendments to the sentencing guidelines, policy 
statements, and official commentary to ensure that the incidence of 
downward departures is substantially reduced;
    (B) a policy statement authorizing a departure pursuant to an early 
disposition program; and
    (C) any other conforming amendments to the sentencing guidelines, 
policy statements, and official commentary of the Sentencing Commission 
necessitated by the Act, including a revision of . . . section 5K2.0'.
    The substantial revision of this policy statement in response to 
the PROTECT Act was intended to refine the standards applicable to 
departures while giving due regard for concepts, such as the 
`heartland', that have evolved in departure jurisprudence over time.
    Section 401(b)(1) of the PROTECT Act directly amended this policy 
statement to add subsection (b), effective April 30, 2003.

Sec.  5K2.1. Death (Policy Statement)

    If death resulted, the court may increase the sentence above the 
authorized guideline range.
    Loss of life does not automatically suggest a sentence at or near 
the statutory maximum. The sentencing judge must give consideration to 
matters that would normally distinguish among levels of homicide, such 
as the defendant's state of mind and the degree of planning or 
preparation. Other appropriate factors are whether multiple deaths 
resulted, and the means by

[[Page 89208]]

which life was taken. The extent of the increase should depend on the 
dangerousness of the defendant's conduct, the extent to which death or 
serious injury was intended or knowingly risked, and the extent to 
which the offense level for the offense of conviction, as determined by 
the other Chapter Two guidelines, already reflects the risk of personal 
injury. For example, a substantial increase may be appropriate if the 
death was intended or knowingly risked or if the underlying offense was 
one for which base offense levels do not reflect an allowance for the 
risk of personal injury, such as fraud.

Sec.  5K2.2. Physical Injury (Policy Statement)

    If significant physical injury resulted, the court may increase the 
sentence above the authorized guideline range. The extent of the 
increase ordinarily should depend on the extent of the injury, the 
degree to which it may prove permanent, and the extent to which the 
injury was intended or knowingly risked. When the victim suffers a 
major, permanent disability and when such injury was intentionally 
inflicted, a substantial departure may be appropriate. If the injury is 
less serious or if the defendant (though criminally negligent) did not 
knowingly create the risk of harm, a less substantial departure would 
be indicated. In general, the same considerations apply as in Sec.  
5K2.1.

Sec.  5K2.3. Extreme Psychological Injury (Policy Statement)

    If a victim or victims suffered psychological injury much more 
serious than that normally resulting from commission of the offense, 
the court may increase the sentence above the authorized guideline 
range. The extent of the increase ordinarily should depend on the 
severity of the psychological injury and the extent to which the injury 
was intended or knowingly risked.
    Normally, psychological injury would be sufficiently severe to 
warrant application of this adjustment only when there is a substantial 
impairment of the intellectual, psychological, emotional, or behavioral 
functioning of a victim, when the impairment is likely to be of an 
extended or continuous duration, and when the impairment manifests 
itself by physical or psychological symptoms or by changes in behavior 
patterns. The court should consider the extent to which such harm was 
likely, given the nature of the defendant's conduct.

Sec.  5K2.4. Abduction or Unlawful Restraint (Policy Statement)

    If a person was abducted, taken hostage, or unlawfully restrained 
to facilitate commission of the offense or to facilitate the escape 
from the scene of the crime, the court may increase the sentence above 
the authorized guideline range.

Sec.  5K2.5. Property Damage or Loss (Policy Statement)

    If the offense caused property damage or loss not taken into 
account within the guidelines, the court may increase the sentence 
above the authorized guideline range. The extent of the increase 
ordinarily should depend on the extent to which the harm was intended 
or knowingly risked and on the extent to which the harm to property is 
more serious than other harm caused or risked by the conduct relevant 
to the offense of conviction.

Sec.  5K2.6. Weapons and Dangerous Instrumentalities (Policy Statement)

    If a weapon or dangerous instrumentality was used or possessed in 
the commission of the offense the court may increase the sentence above 
the authorized guideline range. The extent of the increase ordinarily 
should depend on the dangerousness of the weapon, the manner in which 
it was used, and the extent to which its use endangered others. The 
discharge of a firearm might warrant a substantial sentence increase.

Sec.  5K2.7. Disruption of Governmental Function (Policy Statement)

    If the defendant's conduct resulted in a significant disruption of 
a governmental function, the court may increase the sentence above the 
authorized guideline range to reflect the nature and extent of the 
disruption and the importance of the governmental function affected. 
Departure from the guidelines ordinarily would not be justified when 
the offense of conviction is an offense such as bribery or obstruction 
of justice; in such cases interference with a governmental function is 
inherent in the offense, and unless the circumstances are unusual the 
guidelines will reflect the appropriate punishment for such 
interference.

Sec.  5K2.8. Extreme Conduct (Policy Statement)

    If the defendant's conduct was unusually heinous, cruel, brutal, or 
degrading to the victim, the court may increase the sentence above the 
guideline range to reflect the nature of the conduct. Examples of 
extreme conduct include torture of a victim, gratuitous infliction of 
injury, or prolonging of pain or humiliation.

Sec.  5K2.9. Criminal Purpose (Policy Statement)

    If the defendant committed the offense in order to facilitate or 
conceal the commission of another offense, the court may increase the 
sentence above the guideline range to reflect the actual seriousness of 
the defendant's conduct.

Sec.  5K2.10. Victim's Conduct (Policy Statement)

    If the victim's wrongful conduct contributed significantly to 
provoking the offense behavior, the court may reduce the sentence below 
the guideline range to reflect the nature and circumstances of the 
offense. In deciding whether a sentence reduction is warranted, and the 
extent of such reduction, the court should consider the following:
    (1) The size and strength of the victim, or other relevant physical 
characteristics, in comparison with those of the defendant.
    (2) The persistence of the victim's conduct and any efforts by the 
defendant to prevent confrontation.
    (3) The danger reasonably perceived by the defendant, including the 
victim's reputation for violence.
    (4) The danger actually presented to the defendant by the victim.
    (5) Any other relevant conduct by the victim that substantially 
contributed to the danger presented.
    (6) The proportionality and reasonableness of the defendant's 
response to the victim's provocation.
    Victim misconduct ordinarily would not be sufficient to warrant 
application of this provision in the context of offenses under Chapter 
Two, Part A, Subpart 3 (Criminal Sexual Abuse). In addition, this 
provision usually would not be relevant in the context of non-violent 
offenses. There may, however, be unusual circumstances in which 
substantial victim misconduct would warrant a reduced penalty in the 
case of a non-violent offense. For example, an extended course of 
provocation and harassment might lead a defendant to steal or destroy 
property in retaliation.

Sec.  5K2.11. Lesser Harms (Policy Statement)

    Sometimes, a defendant may commit a crime in order to avoid a 
perceived greater harm. In such instances, a reduced sentence may be 
appropriate, provided that the circumstances significantly diminish 
society's interest in punishing the conduct, for example, in the case 
of a mercy killing. Where the

[[Page 89209]]

interest in punishment or deterrence is not reduced, a reduction in 
sentence is not warranted. For example, providing defense secrets to a 
hostile power should receive no lesser punishment simply because the 
defendant believed that the government's policies were misdirected.
    In other instances, conduct may not cause or threaten the harm or 
evil sought to be prevented by the law proscribing the offense at 
issue. For example, where a war veteran possessed a machine gun or 
grenade as a trophy, or a school teacher possessed controlled 
substances for display in a drug education program, a reduced sentence 
might be warranted.

Sec.  5K2.12. Coercion and Duress (Policy Statement)

    If the defendant committed the offense because of serious coercion, 
blackmail or duress, under circumstances not amounting to a complete 
defense, the court may depart downward. The extent of the decrease 
ordinarily should depend on the reasonableness of the defendant's 
actions, on the proportionality of the defendant's actions to the 
seriousness of coercion, blackmail, or duress involved, and on the 
extent to which the conduct would have been less harmful under the 
circumstances as the defendant believed them to be. Ordinarily coercion 
will be sufficiently serious to warrant departure only when it involves 
a threat of physical injury, substantial damage to property or similar 
injury resulting from the unlawful action of a third party or from a 
natural emergency. Notwithstanding this policy statement, personal 
financial difficulties and economic pressures upon a trade or business 
do not warrant a downward departure.

Sec.  5K2.13. Diminished Capacity (Policy Statement)

    A downward departure may be warranted if (1) the defendant 
committed the offense while suffering from a significantly reduced 
mental capacity; and (2) the significantly reduced mental capacity 
contributed substantially to the commission of the offense. Similarly, 
if a departure is warranted under this policy statement, the extent of 
the departure should reflect the extent to which the reduced mental 
capacity contributed to the commission of the offense.
    However, the court may not depart below the applicable guideline 
range if (1) the significantly reduced mental capacity was caused by 
the voluntary use of drugs or other intoxicants; (2) the facts and 
circumstances of the defendant's offense indicate a need to protect the 
public because the offense involved actual violence or a serious threat 
of violence; (3) the defendant's criminal history indicates a need to 
incarcerate the defendant to protect the public; or (4) the defendant 
has been convicted of an offense under chapter 71, 109A, 110, or 117, 
of title 18, United States Code.

Commentary

    Application Note:
    1. For purposes of this policy statement--
    `Significantly reduced mental capacity' means the defendant, 
although convicted, has a significantly impaired ability to (A) 
understand the wrongfulness of the behavior comprising the offense or 
to exercise the power of reason; or (B) control behavior that the 
defendant knows is wrongful.
    Background: Section 401(b)(5) of Public Law 108-21 directly amended 
this policy statement to add subdivision (4), effective April 30, 2003.

Sec.  5K2.14. Public Welfare (Policy Statement)

    If national security, public health, or safety was significantly 
endangered, the court may depart upward to reflect the nature and 
circumstances of the offense.

Sec.  5K2.16. Voluntary Disclosure of Offense (Policy Statement)

    If the defendant voluntarily discloses to authorities the existence 
of, and accepts responsibility for, the offense prior to the discovery 
of such offense, and if such offense was unlikely to have been 
discovered otherwise, a downward departure may be warranted. For 
example, a downward departure under this section might be considered 
where a defendant, motivated by remorse, discloses an offense that 
otherwise would have remained undiscovered. This provision does not 
apply where the motivating factor is the defendant's knowledge that 
discovery of the offense is likely or imminent, or where the 
defendant's disclosure occurs in connection with the investigation or 
prosecution of the defendant for related conduct.

Sec.  5K2.17. Semiautomatic Firearms Capable of Accepting Large 
Capacity Magazine (Policy Statement)

    If the defendant possessed a semiautomatic firearm capable of 
accepting a large capacity magazine in connection with a crime of 
violence or controlled substance offense, an upward departure may be 
warranted. A `semiautomatic firearm capable of accepting a large 
capacity magazine' means a semiautomatic firearm that has the ability 
to fire many rounds without reloading because at the time of the 
offense (1) the firearm had attached to it a magazine or similar device 
that could accept more than 15 rounds of ammunition; or (2) a magazine 
or similar device that could accept more than 15 rounds of ammunition 
was in close proximity to the firearm. The extent of any increase 
should depend upon the degree to which the nature of the weapon 
increased the likelihood of death or injury in the circumstances of the 
particular case.

Commentary

    Application Note:
    1. `Crime of violence' and `controlled substance offense' are 
defined in Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1).

Sec.  5K2.18. Violent Street Gangs (Policy Statement)

    If the defendant is subject to an enhanced sentence under 18 U.S.C. 
521 (pertaining to criminal street gangs), an upward departure may be 
warranted. The purpose of this departure provision is to enhance the 
sentences of defendants who participate in groups, clubs, 
organizations, or associations that use violence to further their ends. 
It is to be noted that there may be cases in which 18 U.S.C. 521 
applies, but no violence is established. In such cases, it is expected 
that the guidelines will account adequately for the conduct and, 
consequently, this departure provision would not apply.

Sec.  5K2.20. Aberrant Behavior (Policy Statement)

    (a) In General.--Except where a defendant is convicted of an 
offense involving a minor victim under section 1201, an offense under 
section 1591, or an offense under chapter 71, 109A, 110, or 117, of 
title 18, United States Code, a downward departure may be warranted in 
an exceptional case if (1) the defendant's criminal conduct meets the 
requirements of subsection (b); and (2) the departure is not prohibited 
under subsection (c).
    (b) Requirements.--The court may depart downward under this policy 
statement only if the defendant committed a single criminal occurrence 
or single criminal transaction that (1) was committed without 
significant planning; (2) was of limited duration; and (3) represents a 
marked deviation by the defendant from an otherwise law-abiding life.
    (c) Prohibitions Based on the Presence of Certain Circumstances.--
The court may not depart downward pursuant to

[[Page 89210]]

this policy statement if any of the following circumstances are 
present:
    (1) The offense involved serious bodily injury or death.
    (2) The defendant discharged a firearm or otherwise used a firearm 
or a dangerous weapon.
    (3) The instant offense of conviction is a serious drug trafficking 
offense.
    (4) The defendant has either of the following: (A) more than one 
criminal history point, as determined under Chapter Four (Criminal 
History and Criminal Livelihood) before application of subsection (b) 
of Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category); or (B) a prior federal or state felony conviction, or any 
other significant prior criminal behavior, regardless of whether the 
conviction or significant prior criminal behavior is countable under 
Chapter Four.

Commentary

    Application Notes:
    1. Definitions.--For purposes of this policy statement:
    `Dangerous weapon,' `firearm,' `otherwise used,' and `serious 
bodily injury' have the meaning given those terms in the Commentary to 
Sec.  1B1.1 (Application Instructions).
    `Serious drug trafficking offense' means any controlled substance 
offense under title 21, United States Code, other than simple 
possession under 21 U.S.C. 844, that provides for a mandatory minimum 
term of imprisonment of five years or greater, regardless of whether 
the defendant meets the criteria of Sec.  5C1.2 (Limitation on 
Applicability of Statutory Mandatory Minimum Sentences in Certain 
Cases).
    2. Repetitious or Significant, Planned Behavior.--Repetitious or 
significant, planned behavior does not meet the requirements of 
subsection (b). For example, a fraud scheme generally would not meet 
such requirements because such a scheme usually involves repetitive 
acts, rather than a single occurrence or single criminal transaction, 
and significant planning.
    3. Other Circumstances to Consider.--In determining whether the 
court should depart under this policy statement, the court may consider 
the defendant's (A) mental and emotional conditions; (B) employment 
record; (C) record of prior good works; (D) motivation for committing 
the offense; and (E) efforts to mitigate the effects of the offense.
    Background: Section 401(b)(3) of Public Law 108-21 directly amended 
subsection (a) of this policy statement, effective April 30, 2003.

Sec.  5K2.21. Dismissed and Uncharged Conduct (Policy Statement)

    The court may depart upward to reflect the actual seriousness of 
the offense based on conduct (1) underlying a charge dismissed as part 
of a plea agreement in the case, or underlying a potential charge not 
pursued in the case as part of a plea agreement or for any other 
reason; and (2) that did not enter into the determination of the 
applicable guideline range.

Sec.  5K2.22. Specific Offender Characteristics as Grounds for Downward 
Departure in Child Crimes and Sexual Offenses (Policy Statement)

    In sentencing a defendant convicted of an offense involving a minor 
victim under section 1201, an offense under section 1591, or an offense 
under chapter 71, 109A, 110, or 117, of title 18, United States Code:
    (1) Age may be a reason to depart downward only if and to the 
extent permitted by Sec.  5H1.1.
    (2) An extraordinary physical impairment may be a reason to depart 
downward only if and to the extent permitted by Sec.  5H1.4.
    (3) Drug, alcohol, or gambling dependence or abuse is not a reason 
to depart downward.

Commentary

    Background: Section 401(b)(2) of Public Law 108-21 directly amended 
Chapter Five, Part K, to add this policy statement, effective April 30, 
2003.

Sec.  5K2.23. Discharged Terms of Imprisonment (Policy Statement)

    A downward departure may be appropriate if the defendant (1) has 
completed serving a term of imprisonment; and (2) subsection (b) of 
Sec.  5G1.3 (Imposition of a Sentence on a Defendant Subject to 
Undischarged Term of Imprisonment or Anticipated Term of Imprisonment) 
would have provided an adjustment had that completed term of 
imprisonment been undischarged at the time of sentencing for the 
instant offense. Any such departure should be fashioned to achieve a 
reasonable punishment for the instant offense.

Sec.  5K2.24. Commission of Offense While Wearing or Displaying 
Unauthorized or Counterfeit Insignia or Uniform (Policy Statement)

    If, during the commission of the offense, the defendant wore or 
displayed an official, or counterfeit official, insignia or uniform 
received in violation of 18 U.S.C. 716, an upward departure may be 
warranted.

Commentary

    Application Note:
    1. Definition.--For purposes of this policy statement, `official 
insignia or uniform' has the meaning given that term in 18 U.S.C. Sec.  
716(c)(3).

3. Early Disposition Programs

Sec.  5K3.1. Early Disposition Programs (Policy Statement)

    Upon motion of the Government, the court may depart downward not 
more than 4 levels pursuant to an early disposition program authorized 
by the Attorney General of the United States and the United States 
Attorney for the district in which the court resides.

Commentary

    Background: This policy statement implements the directive to the 
Commission in section 401(m)(2)(B) of the Prosecutorial Remedies and 
Other Tools to end the Exploitation of Children Today Act of 2003 (the 
`PROTECT Act', Public Law 108-21).''.
    Chapter Eight is amended--
    by redesignating Chapter Eight as Chapter Nine;
    in the heading by striking ``Chapter Eight'' and inserting 
``Chapter Nine'';
    in Part A by redesignating Sec. Sec.  8A1.1 and 8A1.2 as Sec. Sec.  
9A1.1 and 9A1.2, respectively;
    in Part B, Subpart 1 by redesignating Sec. Sec.  8B1.1, 8B1.2, 
8B1.3, and 8B1.4 as Sec. Sec.  9B1.1, 9B1.2, 9B1.3, and 9B1.4, 
respectively;
    in Part B, Subpart 2 by redesignating Sec.  8B2.1 as Sec.  9B2.1;
    in Part C, Subpart 1 by redesignating Sec.  8C1.1 as Sec.  9C1.1;
    in Part C, Subpart 2 by redesignating Sec. Sec.  8C2.1, 8C2.2, 
8C2.3, 8C2.4, 8C2.5, 8C2.6, 8C2.7, 8C2.8, 8C2.9, and 8C2.10 as 
Sec. Sec.  9C2.1, 9C2.2, 9C2.3, 9C2.4, 9C2.5, 9C2.6, 9C2.7, 9C2.8, 
9C2.9, and 9C2.10, respectively;
    in Part C, Subpart 3 by redesignating Sec. Sec.  8C3.1, 8C3.2, 
8C3.3, and 8C3.4 as Sec. Sec.  9C3.1, 9C3.2, 9C3.3, and 9C3.4, 
respectively;
    in Part C, Subpart 4--
    by redesignating Sec.  8C4.1 as Sec.  9C4.1;
    and striking Sec. Sec.  8C4.2 through 8C4.11 as follows:

``Sec.  8C4.2. Risk of Death or Bodily Injury (Policy Statement)

    If the offense resulted in death or bodily injury, or involved a 
foreseeable risk of death or bodily injury, an upward departure may be 
warranted. The extent of any such departure should depend, among other 
factors, on the nature of the harm and the extent to which the harm was 
intended or knowingly risked, and the extent to

[[Page 89211]]

which such harm or risk is taken into account within the applicable 
guideline fine range.

Sec.  8C4.3. Threat to National Security (Policy Statement)

    If the offense constituted a threat to national security, an upward 
departure may be warranted.

Sec.  8C4.4. Threat to the Environment (Policy Statement)

    If the offense presented a threat to the environment, an upward 
departure may be warranted.

Sec.  8C4.5. Threat to a Market (Policy Statement)

    If the offense presented a risk to the integrity or continued 
existence of a market, an upward departure may be warranted. This 
section is applicable to both private markets (e.g., a financial 
market, a commodities market, or a market for consumer goods) and 
public markets (e.g., government contracting).

Sec.  8C4.6. Official Corruption (Policy Statement)

    If the organization, in connection with the offense, bribed or 
unlawfully gave a gratuity to a public official, or attempted or 
conspired to bribe or unlawfully give a gratuity to a public official, 
an upward departure may be warranted.

Sec.  8C4.7. Public Entity (Policy Statement)

    If the organization is a public entity, a downward departure may be 
warranted.

Sec.  8C4.8. Members or Beneficiaries of the Organization as Victims 
(Policy Statement)

    If the members or beneficiaries, other than shareholders, of the 
organization are direct victims of the offense, a downward departure 
may be warranted. If the members or beneficiaries of an organization 
are direct victims of the offense, imposing a fine upon the 
organization may increase the burden upon the victims of the offense 
without achieving a deterrent effect. In such cases, a fine may not be 
appropriate. For example, departure may be appropriate if a labor union 
is convicted of embezzlement of pension funds.

Sec.  8C4.9. Remedial Costs that Greatly Exceed Gain (Policy Statement)

    If the organization has paid or has agreed to pay remedial costs 
arising from the offense that greatly exceed the gain that the 
organization received from the offense, a downward departure may be 
warranted. In such a case, a substantial fine may not be necessary in 
order to achieve adequate punishment and deterrence. In deciding 
whether departure is appropriate, the court should consider the level 
and extent of substantial authority personnel involvement in the 
offense and the degree to which the loss exceeds the gain. If an 
individual within high-level personnel was involved in the offense, a 
departure would not be appropriate under this section. The lower the 
level and the more limited the extent of substantial authority 
personnel involvement in the offense, and the greater the degree to 
which remedial costs exceeded or will exceed gain, the less will be the 
need for a substantial fine to achieve adequate punishment and 
deterrence.

Sec.  8C4.10. Mandatory Programs to Prevent and Detect Violations of 
Law (Policy Statement)

    If the organization's culpability score is reduced under Sec.  
8C2.5(f) (Effective Compliance and Ethics Program) and the organization 
had implemented its program in response to a court order or 
administrative order specifically directed at the organization, an 
upward departure may be warranted to offset, in part or in whole, such 
reduction.
    Similarly, if, at the time of the instant offense, the organization 
was required by law to have an effective compliance and ethics program, 
but the organization did not have such a program, an upward departure 
may be warranted.

Sec.  8C4.11. Exceptional Organizational Culpability (Policy Statement)

    If the organization's culpability score is greater than 10, an 
upward departure may be appropriate.
    If no individual within substantial authority personnel 
participated in, condoned, or was willfully ignorant of the offense; 
the organization at the time of the offense had an effective program to 
prevent and detect violations of law; and the base fine is determined 
under Sec.  8C2.4(a)(1), Sec.  8C2.4(a)(3), or a special instruction 
for fines in Chapter Two (Offense Conduct), a downward departure may be 
warranted. In a case meeting these criteria, the court may find that 
the organization had exceptionally low culpability and therefore a fine 
based on loss, offense level, or a special Chapter Two instruction 
results in a guideline fine range higher than necessary to achieve the 
purposes of sentencing. Nevertheless, such fine should not be lower 
than if determined under Sec.  8C2.4(a)(2).'';
    in Part D by redesignating Sec. Sec.  8D1.1, 8D1.2, 8D1.3, and 
8D1.4 as Sec. Sec.  9D1.1, 9D1.2, 9D1.3, and 9D1.4, respectively;
    in Part E by redesignating Sec. Sec.  8E1.1, 8E1.2, and 8E1.3 as 
Sec. Sec.  9E1.1, 9E1.2, and 9E1.3, respectively;
    and in Part F by redesignating Sec.  8F1.1 as Sec.  9F1.1.
    Chapter Seven is amended--
    by redesignating Chapter Seven as Chapter Eight;
    in the heading by striking ``Chapter Seven'' and inserting 
``Chapter Eight'';
    and in Part B by redesignating Sec. Sec.  7B1.1, 7B1.2, 7B1.3, 
7B1.4, and 7B1.5 as Sec. Sec.  8B1.1, 8B1.2, 8B1.3, 8B1.4, and 8B1.5.
    Chapter Six is amended--
    by redesignating Chapter Six as Chapter Seven;
    in the heading by striking ``Chapter Six'' and inserting ``Chapter 
Seven'';
    in Part A--
    by redesignating Sec. Sec.  6A1.1, 6A1.2, 6A1.3, and 6A1.5 as 
Sec. Sec.  7A1.1, 7A1.2, 7A1.3, and 7A1.4, respectively;
    and by striking Sec.  6A1.4 as follows:

``Sec.  6A1.4. Notice of Possible Departure (Policy Statement)

    Before the court may depart from the applicable sentencing 
guideline range on a ground not identified for departure either in the 
presentence report or in a party's prehearing submission, the court 
must give the parties reasonable notice that it is contemplating such a 
departure. The notice must specify any ground on which the court is 
contemplating a departure. Rule 32(h), Fed. R. Crim. P.

Commentary

    Background: The Federal Rules of Criminal Procedure were amended, 
effective December 1, 2002, to incorporate into Rule 32(h) the holding 
in Burns v. United States, 501 U.S. 129, 138-39 (1991). This policy 
statement parallels Rule 32(h), Fed. R. Crim. P.'';
    and in Part B by redesignating Sec. Sec.  6B1.1, 6B1.2, 6B1.3, and 
6B1.4 as Sec. Sec.  7B1.1, 7B1.2, 7B1.3, and 7B1.4, respectively.
    The Guidelines Manual is amended by inserting before Chapter Seven 
(Sentencing Procedures, Plea Agreements, and Crime Victims' Rights) (as 
so redesignated) the following new Chapter Six:

``Chapter Six

Determining the Sentence

Introductory Commentary

    The Sentencing Reform Act of 1984 (Title II of the Comprehensive 
Crime Control Act of 1984) (the `Act') provides that courts must 
consider a variety of factors when imposing a sentence `sufficient but 
not greater than necessary' to comply with the purposes

[[Page 89212]]

of sentencing as set forth in the Act. 18 U.S.C. 3553(a). The Act 
provides for the development of guidelines that will further the basic 
purposes of criminal punishment. 28 U.S.C. 994(f). Originally, those 
guidelines were mandatory under the Act, with limited exceptions. See 
18 U.S.C. 3553(b). Later, in United States v. Booker, 543 U.S. 220 
(2005), the Supreme Court held that the provision in 18 U.S.C. 3553(b) 
making the guidelines mandatory was unconstitutional. Following Booker, 
the guideline ranges established by application of the Guidelines 
Manual remain `the starting point and the initial benchmark' of 
sentencing, though the guidelines are advisory in nature. See Gall v. 
United States, 552 U.S. 38, 49 (2007); Peugh v. United States, 569 U.S. 
530 (2013) (noting that `the post-Booker federal sentencing system 
adopted procedural measures that make the guidelines the `lodestone' of 
sentencing'). Consistent with 18 U.S.C. 3553(a), which remains binding 
on courts following Booker, courts must also consider a variety of 
additional factors when determining the sentence to be imposed.
    As background, Congress provided specific directives to the 
Commission when setting a guideline range for `each category of offense 
involving each category of defendant.' 28 U.S.C. 994(b)(1).
    First, to effectuate Congress's intent that sentences not `afford 
preferential treatment to defendants of a particular race or religion 
or level of affluence, or to relegate to prisons defendants who are 
poor, uneducated, and in need of education and vocational training,' 
Rep. 225, 98th Cong., 1st Sess. 171 (1983), the Act directs the 
Commission to ensure that the guidelines and policy statements `are 
entirely neutral' as to five characteristics--race, sex, national 
origin, creed, and socioeconomic status. See 28 U.S.C. 994(d).
    Second, the Act directs the Commission to consider (a) whether 
seven matters, `among others,' have any relevance to the nature, 
extent, place of service, or other aspects of an appropriate sentence 
for purposes of establishing categories of offenses, and (b) whether 
eleven matters, `among others', have any relevance to the nature, 
extent, place of service, or other aspects of an appropriate sentence 
for purposes of establishing categories of defendants, and to take them 
into account in the guidelines and policy statements only to the extent 
that they do have relevance. See 28 U.S.C. 994(d).
    Third, to effectuate Congress's intent to `guard against the 
inappropriate use of incarceration for those defendants who lack 
education, employment, and stabilizing ties.' S. Rep. 225, 98th Cong., 
1st Sess. 174 (1983), the Act directs the Commission to ensure that the 
guidelines and policy statements, in recommending a term of 
imprisonment or length of a term of imprisonment, reflect the `general 
inappropriateness' of considering five of those characteristics--
education; vocational skills; employment record; family ties and 
responsibilities; and community ties. See 28 U.S.C. 994(e).
    The statutory requirements placed by Congress upon courts in 18 
U.S.C. 3553(a), however, do not include the same limitations placed 
upon the Commission. Accordingly, the purpose of this chapter is to 
assist courts in complying with their obligation under 18 U.S.C. 
3553(a) to consider a variety of factors, including the `nature and 
circumstances of the offense and the history and characteristics of the 
defendant,' in addition to the guideline range when determining the 
sentence to be imposed. This chapter provides examples of factors that 
are generally not considered in the calculation of the guideline range 
in Chapters Two through Five, but which courts regularly consider 
pursuant to section 3553(a). The Commission recognizes that the nature, 
extent, and significance of various considerations may be difficult or 
impossible to quantify for purposes of establishing the guideline 
ranges. As such, the factors identified in this chapter are neither 
weighted in any manner nor intended to be comprehensive so as to 
otherwise infringe upon the court's unique position to determine the 
most appropriate sentence.

Part A--Consideration of Factors in 18 U.S.C. 3553(a)

Sec.  6A1.1. Factors To Be Considered in Imposing a Sentence (Policy 
Statement)

    (a) After determining the kinds of sentence and guidelines range 
pursuant to subsection (a) of Sec.  1B1.1 (Application Instructions) 
and 18 U.S.C. 3553(a)(4) and (5), the court shall consider the other 
applicable factors in 18 U.S.C. 3553(a) to determine a sentence that is 
sufficient but not greater than necessary. Specifically, as set forth 
in 18 U.S.C. 3553(a), in determining the particular sentence to be 
imposed, the court shall also consider--
    (1) the nature and circumstances of the offense and the history and 
characteristics of the defendant;
    (2) the need for the sentence imposed to meet the purposes of 
sentencing listed in 18 U.S.C. 3553(a)(2);
    (3) the kinds of sentences available;
    (4) the need to avoid unwarranted sentence disparities among 
defendants with similar records who have been found guilty of similar 
conduct; and
    (5) the need to provide restitution to any victims of the offense.

Commentary

    Section 3553(a) of title 18, United States Code, requires courts to 
impose a sentence `sufficient, but not greater than necessary,' to 
comply with the purposes of sentencing set forth in 18 U.S.C. 
3553(a)(2). See 18 U.S.C. 3553(a). After determining the kinds of 
sentence and guidelines range, the court must also fully consider the 
factors in 18 U.S.C. 3553(a), including, among other factors, `the 
nature and circumstances of the offense and the history and 
characteristics of the defendant,' to determine an appropriate 
sentence. To the extent that any of the above-noted statutory 
provisions conflict with the provisions of this policy statement, the 
applicable statutory provision shall control.

Sec.  6A1.2. Factors Relating to Individual Circumstances (Policy 
Statement)

    (a) In considering the history and characteristics of the defendant 
pursuant to 18 U.S.C. 3553(a)(1), the following factors may be 
relevant:
    (1) Age.
    (2) Education.
    (3) Vocational Skills.
    (4) Mental and Emotional Conditions.
    (5) Diminished Mental Capacity.
    (6) Physical Condition.
    (7) Drug or Alcohol Dependence.
    (8) Gambling Addiction.
    (9) Previous Employment Record.
    (10) Family Ties and Responsibilities.
    (11) Lack of Guidance as a Youth and Similar Circumstances.
    (12) Community Ties.
    (13) Role in the Offense.
    (14) Personal Financial Difficulties and Economic Pressures.
    (15) Degree of Dependence Upon Criminal Activity for a Livelihood.
    (16) Military Service.
    (17) Civic, Charitable, or Public Service.
    (18) Employment-Related Contributions.
    (19) Record of Prior Good Works.
    (20) Aberrant Behavior.
    (21) Other Individual Circumstances Relating to the Culpability of 
or the Need to Incapacitate the Defendant.

Commentary

    This policy statement recognizes that the nature, extent, and 
significance of individual circumstances can involve a range of 
considerations that are difficult or impossible to quantify for 
purposes of

[[Page 89213]]

establishing the guideline range. This policy statement provides 
examples of factors relating to the history and characteristics of the 
defendant that are generally not considered in the calculation of the 
guideline range in Chapters Two through Five, but which courts 
regularly consider pursuant to 18 U.S.C. 3553(a). The factors 
identified in this policy statement are not weighted in any manner or 
intended to be comprehensive or to otherwise infringe upon the court's 
unique position to determine the most appropriate sentence.

Sec.  6A1.3. Factors Relating to the Nature and Circumstances of the 
Offense (Policy Statement)

    (a) In considering the nature and circumstances of the offense 
pursuant to 18 U.S.C. 3553(a)(1), the following factors, if not 
accounted for in the applicable Chapter Two guideline, may be relevant:
    (1) Other Offense Specific Conduct Over- or Under-Representing 
Serious of Offense.--Additional factors the court determines support a 
finding that the offense level determined under the applicable 
guideline over- or under-represents the seriousness of the offense. 
Such factors may be identified in specific Chapter Two guidelines as 
`Additional Considerations.'
    (2) Death.--In cases in which death resulted, the court may 
consider, for example, whether multiple deaths resulted, the means by 
which life was taken, the defendant's state of mind, and the degree of 
planning or preparation.
    (3) Extreme Physical Injury.--In cases in which extreme physical 
injury resulted, the court may consider, for example, whether multiple 
victims suffered such injury, the nature of the injury, and the extent 
to which the defendant intended the injury or knowingly created risk.
    (4) Extreme Psychological Injury.--The defendant caused extended or 
continuous substantial impairment of the intellectual, psychological, 
emotional, or behavioral functioning of the victim that is more serious 
than that normally resulting from the commission of the offense.
    (5) Abduction or Unlawful Restraint.--The defendant abducted, took 
hostage, or unlawfully restrained a person to facilitate the commission 
of the offense or escape.
    (6) Extreme Conduct.--The defendant engaged in unusually heinous, 
cruel, brutal, or degrading conduct such as the torture of a victim, 
gratuitous infliction of injury, or prolonging of pain or humiliation.
    (7) Weapons and Dangerous Instrumentalities.--In cases in which the 
defendant possessed a weapon or dangerous instrumentality, the court 
may consider, for example, the dangerousness of the weapon, the manner 
in which it was used, and the extent to which its use endangered 
others.
    (8) Semiautomatic Firearms Capable of Accepting Large Capacity 
Magazine.--The defendant possessed a semiautomatic firearm capable of 
accepting a large capacity magazine in connection with a crime of 
violence or controlled substance offense.
    (9) Property Damage or Loss.--In cases in which the offense caused 
property damage or loss not taken into account within the guidelines, 
the court may consider, for example, the extent to which the defendant 
knowingly intended or risked harm, and the extent to which the harm to 
property is more serious than other harm caused or risked by the 
defendant's conduct.
    (10) Disruption of a Governmental Function.--The defendant's 
conduct resulted in a significant disruption of a governmental 
function.
    (11) Public Welfare.--The defendant's conduct significantly 
endangered national security, public health, or safety.
    (12) Commission of Offense While Wearing or Displaying Unauthorized 
or Counterfeit Insignia or Uniform.--The defendant wore or displayed an 
official, or counterfeit official, insignia or uniform during the 
commission of the offense.
    (13) Criminal Purpose.--The defendant committed the offense in 
order to facilitate or conceal the commission of another offense.
    (14) Victim's Conduct.--The victim's wrongful conduct contributed 
significantly to provoking the offense behavior.
    (15) Lesser Harms.--The defendant committed the offense in order to 
avoid a perceived greater harm.
    (16) Coercion or Duress.--The defendant committed the offense under 
coercion, blackmail, duress, or circumstances not amounting to a 
complete defense.
    (17) Dismissed and Uncharged Conduct.--The offense level determined 
under the applicable guideline under-represents the seriousness of the 
offense because conduct underlying a charge dismissed as part of a plea 
agreement in the case or conduct underlying a potential charge not 
pursued in the case as part of a plea agreement or for any other reason 
did not enter into the determination of the applicable guideline range.
    (18) Voluntary Disclosure of Offense.--The defendant voluntarily 
disclosed to authorities the existence of, and accepted responsibility 
for, an offense that was unlikely to have been discovered otherwise.
    (19) Discharged Terms of Imprisonment.--In the case of a discharged 
term of imprisonment, (A) the defendant has completed serving a term of 
imprisonment; and (B) subsection (b) of Sec.  5G1.3 (Imposition of a 
Sentence on a Defendant Subject to Undischarged Term of Imprisonment or 
Anticipated Term of Imprisonment) would have provided an adjustment had 
that completed term of imprisonment been undischarged at the time of 
sentencing for the instant offense.
    (20) Violent Street Gangs.--The defendant is subject to an enhanced 
sentence under 18 U.S.C. 521 (pertaining to criminal street gangs) and 
the offense involved violence.

Commentary

    This policy statement recognizes that the nature, extent, and 
significance of individual circumstances can involve a range of 
considerations that are difficult or impossible to quantify for 
purposes of establishing the guideline range. This policy statement 
provides examples of factors relating to the nature and circumstances 
of the offense that are generally not considered in the calculation of 
the guideline range in Chapters Two through Five, but which courts 
regularly consider pursuant to 18 U.S.C. 3553(a). The factors 
identified in this policy statement are not weighted in any manner or 
intended to be comprehensive or to otherwise infringe upon the court's 
unique position to determine the most appropriate sentence.''.
    Chapter Seven, Part B (as so redesignated) is amended in the 
Introductory Commentary by striking ``The policy statements also ensure 
that the basis for any judicial decision to depart from the guidelines 
will be explained on the record.''.
    The Commentary to Sec.  7B1.1 (as so redesignated) is amended in 
the second paragraph by striking ``Section 6B1.1(c)'' and inserting 
``Section 7B1.1(c)''.
    The Commentary to Sec.  7B1.2 (as so redesignated) is amended--
    in the paragraph that begins ``Similarly, the court'' by striking 
``As set forth in subsection (d) of Sec.  5K2.0 (Grounds for 
Departure), however, the court may not depart below the applicable 
guideline range merely because of the defendant's decision to plead 
guilty to the offense or to enter a plea agreement with respect to the 
offense.'';

[[Page 89214]]

    and in the paragraph that begins ``The second paragraph of 
subsection (a)'' by striking ``Section 5K2.21 (Dismissed and Uncharged 
Conduct) addresses the use, as a basis for upward departure, of conduct 
underlying a charge dismissed as part of a plea agreement in the case, 
or underlying a potential charge not pursued in the case as part of a 
plea agreement.''.
    The Commentary to Sec.  7B1.4 (as so redesignated) is amended--
    in the paragraph that begins ``Because of the importance'' by 
striking ``Sec.  6A1.2'' and inserting ``Sec.  7A1.2'';
    and in the final paragraph by striking ``Section 6B1.4(d)'' and 
inserting ``Section 7B1.4(d)''.
    Chapter Eight, Part A (as so redesignated) is amended in the 
heading by striking ``CHAPTER SEVEN'' and inserting ``CHAPTER EIGHT''.
    Section 8B1.3(b) (as so redesignated) is amended by striking 
``Sec.  7B1.4'' and inserting ``Sec.  8B1.4''.
    Section 8B1.3(c)(1) (as so redesignated) is amended by striking 
``Sec.  7B1.4'' and inserting ``Sec.  8B1.4''.
    Section 8B1.3(c)(2) (as so redesignated) is amended by striking 
``Sec.  7B1.4'' and inserting ``Sec.  8B1.4''.
    Section 8B1.3(d) (as so redesignated) is amended by striking 
``Sec.  7B1.4'' and inserting ``Sec.  8B1.4''.
    The Commentary to Sec.  8B1.4 (as so redesignated) captioned 
``Application Notes'' is amended--
    by striking Notes 2, 3, and 4 as follows:
    ``2. Departure from the applicable range of imprisonment in the 
Revocation Table may be warranted when the court departed from the 
applicable range for reasons set forth in Sec.  4A1.3 (Departures Based 
on Inadequacy of Criminal History Category) in originally imposing the 
sentence that resulted in supervision. Additionally, an upward 
departure may be warranted when a defendant, subsequent to the federal 
sentence resulting in supervision, has been sentenced for an offense 
that is not the basis of the violation proceeding.
    3. In the case of a Grade C violation that is associated with a 
high risk of new felonious conduct (e.g., a defendant, under 
supervision for conviction of criminal sexual abuse, violates the 
condition that the defendant not associate with children by loitering 
near a schoolyard), an upward departure may be warranted.
    4. Where the original sentence was the result of a downward 
departure (e.g., as a reward for substantial assistance), or a charge 
reduction that resulted in a sentence below the guideline range 
applicable to the defendant's underlying conduct, an upward departure 
may be warranted.'';
    and by redesignating Notes 5 and 6 as Notes 2 and 3, respectively.
    The Commentary to Sec.  8B1.4 (as so redesignated) is amended by 
inserting at the end the following new Commentary:
    ``Additional Consideration:
    1. Aggravating Factors.--In determining the appropriate term of 
imprisonment upon revocation pursuant to 18 U.S.C. 3553(a), the 
following factors may be relevant:
    (A) The court previously departed or varied on the basis that the 
defendant's criminal history category at the original sentencing 
substantially over- or under-represented the seriousness of the 
defendant's criminal history.
    (B) The defendant, subsequent to the federal sentence resulting in 
supervision, has been sentenced for an offense that is not the basis of 
the violation proceeding.
    (C) The revocation is the result of a Grade C violation that is 
associated with a high risk of new felonious conduct (e.g., a 
defendant, under supervision for conviction of criminal sexual abuse, 
violates the condition that the defendant not associate with children 
by loitering near a schoolyard).
    (D) The defendant was originally sentenced below the applicable 
guideline range as the result of a departure or variance (e.g., as a 
reward for substantial assistance) or charge reduction.''.
    Section 9A1.1 (as so redesignated) is amended in the heading by 
striking ``Chapter Eight'' and inserting ``Chapter Nine''.
    The Commentary to Sec.  9A1.1 (as so redesignated) captioned 
``Application Notes'' is amended in Note 2 by striking ``Sec. Sec.  
8C2.2 through 8C2.9'' both places such phrase appears and inserting 
``Sec. Sec.  9C2.2 through 9C2.9''.
    Section 9A1.2(b) (as so redesignated) is amended--
    in paragraph (1) by striking ``Sec.  8C1.1'' and inserting ``Sec.  
9C1.1''.
    in paragraph (2) by striking ``Sec.  8C2.1'' and inserting ``Sec.  
9C2.1''; and by striking ``Sec. Sec.  8C2.2 through 8C2.9'' and 
inserting ``Sec. Sec.  9C2.2 through 9C2.9'';
    in paragraph (2)(A) by striking ``Sec.  8C2.2'' and inserting 
``Sec.  9C2.2'';
    in paragraph (2)(B) by striking ``Sec.  8C2.3'' and inserting 
``Sec.  9C2.3'';
    in paragraph (2)(C) by striking ``Sec.  8C2.4'' and inserting 
``Sec.  9C2.4'';
    in paragraph (2)(D) by striking ``Sec.  8C2.5 (Culpability Score)'' 
and inserting ``Sec.  9C2.5 (Culpability Score)''; by striking ``Sec.  
8C2.5(f)'' and inserting ``Sec.  9C2.5(f)''; and by striking ``Sec.  
8B2.1'' and inserting ``Sec.  9B2.1'';
    in paragraph (2)(E) by striking ``Sec.  8C2.6'' and inserting 
``Sec.  9C2.6'';
    in paragraph (2)(F) by striking ``Sec.  8C2.7'' and inserting 
``Sec.  9C2.7'';
    in paragraph (2)(G) by striking ``Sec.  8C2.8'' and inserting 
``Sec.  9C2.8'';
    in paragraph (2)(H) by striking ``Sec.  8C2.9'' and inserting 
``Sec.  9C2.9'';
    in the paragraph that begins ``For any count'' by striking ``Sec.  
8C2.1'' and inserting ``Sec.  9C2.1''; and by striking ``Sec.  8C2.10'' 
and inserting ``Sec.  9C2.10'';
    in paragraph (4) by striking ``For grounds for departure from the 
applicable guideline fine range, refer to Part C, Subpart 4 (Departures 
from the Guideline Fine Range)'' and inserting ``Determine whether a 
sentence below the otherwise applicable guideline range is appropriate 
upon motion of the government pursuant to Sec.  9C4.1 (Substantial 
Assistance to Authorities--Organizations (Policy Statement))'';
    and by inserting at the end the following new paragraph (5):
    ``(5) Consider as a whole the additional factors identified in 18 
U.S.C. 3553(a) and the guidance provided in Part C, Subpart 5 
(Consideration of Factors in Determining the Guideline Fine Range) of 
this chapter to determine the sentence that is sufficient, but not 
greater than necessary, to comply with the purposes set forth in 18 
U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a).''.
    The Commentary to Sec.  9A1.2 (as so redesignated) captioned 
``Application Notes'' is amended--
    in Note 2 by striking ``and E (Acceptance of Responsibility)'' and 
inserting ``E (Acceptance of Responsibility), and F (Early Disposition 
Program)''; by striking ``Chapter Six (Sentencing Procedures, Plea 
Agreements, and Crime Victims' Rights)'' and inserting ``Chapter Seven 
(Sentencing Procedures, Plea Agreements, and Crime Victims' Rights)''; 
and by striking ``Chapter Seven (Violations of Probation and Supervised 
Release)'' and inserting ``Chapter Eight (Violations of Probation and 
Supervised Release)'';
    and in Note 3(B) by striking ``Sec.  8C2.5'' and inserting ``Sec.  
9C2.5''.
    Section 9B1.2(a) (as so redesignated) is amended by striking 
``Sec.  8B1.1'' and inserting ``Sec.  9B1.1''.
    Section 9B2.1(a) (as so redesignated) is amended by striking 
``Sec.  8C2.5'' and inserting ``Sec.  9C2.5''; and by striking ``Sec.  
8D1.4'' and inserting ``Sec.  9D1.4''.
    The Commentary to Sec.  9B2.1 (as so redesignated) captioned 
``Application Notes'' is amended--
    in Note 1 by striking ``Sec.  8A1.2'' and inserting ``Sec.  
9A1.2'';
    and in Note 2(D) by striking ``Sec.  8A1.2'' and inserting ``Sec.  
9A1.2''.

[[Page 89215]]

    Section 9C1.1 (as so redesignated) is amended by striking ``Sec.  
8C3.4'' and inserting ``Sec.  9C3.4''.
    Section 9C2.1 (as so redesignated) is amended by striking 
``Sec. Sec.  8C2.2 through 8C2.9'' and inserting ``Sec. Sec.  9C2.2 
through 9C2.9''.
    The Commentary to Sec.  9C2.1 (as so redesignated) captioned 
``Applications Notes'' is amended--
    in Note 1 by striking ``Sec. Sec.  8C2.2 through 8C2.9'' in both 
places such phrase appears and inserting ``Sec. Sec.  9C2.2 through 
9C2.9'';
    and in Note 2 by striking ``Sec. Sec.  8C2.2 through 8C2.9'' in 
both places such phrase appears and inserting ``Sec. Sec.  9C2.2 
through 9C2.9''.
    The Commentary to Sec.  9C2.1 (as so redesignated) captioned 
``Background'' is amended by striking ``Sec. Sec.  8C2.2 through 
8C2.9'' and inserting ``Sec. Sec.  9C2.2 through 9C2.9''; and by 
striking ``Sec.  8C2.10'' and inserting ``Sec.  9C2.10''.
    Section 9C2.2(a) (as so redesignated) is amended by striking 
``Sec.  8B1.1'' and inserting ``Sec.  9B1.1''; and by striking ``Sec.  
8C3.3(a)'' and inserting ``Sec.  9C3.3(a)''.
    Section 9C2.2(b) (as so redesignated) is amended by striking 
``Sec. Sec.  8C2.3 through 8C2.7'' and inserting ``Sec. Sec.  9C2.3 
through 9C2.7''; and by striking ``Sec.  8C3.3'' and inserting ``Sec.  
9C3.3''.
    The Commentary to Sec.  9C2.2 (as so redesignated) captioned 
``Background'' is amended by striking ``Sec.  8C2.7(a)'' and inserting 
``Sec.  9C2.7(a)''; by striking ``Sec.  8C2.7 (Guideline Fine Range--
Organizations)'' and inserting ``Sec.  9C2.7 (Guideline Fine Range--
Organizations)''; and by striking ``Sec.  8C3.3'' and inserting ``Sec.  
9C3.3''.
    Section 9C2.3(a) (as so redesignated) is amended by striking 
``Sec.  8C2.1'' and inserting ``Sec.  9C2.1''.
    The Commentary to Sec.  9C2.3 (as so redesignated) captioned 
``Application Notes'' is amended in Note 2 by striking ``and E 
(Acceptance of Responsibility)'' and inserting ``E (Acceptance of 
Responsibility), and F (Early Disposition Program)''.
    Section 9C2.4(a)(1) (as so redesignated) is amended by striking 
``Sec.  8C2.3'' and inserting ``Sec.  9C2.3''.
    The Commentary to Sec.  9C2.4 (as so redesignated) captioned 
``Application Notes'' is amended--
    in Note 1 by striking ``Sec.  8A1.2'' and inserting ``Sec.  
9A1.2'';
    and in Note 4 by striking ``Sec.  8C2.4(a)(3)'' and inserting 
``Sec.  9C2.4(a)(3)''.
    The Commentary to Sec.  9C2.4 (as so redesignated) captioned 
``Background'' is amended by striking ``Sec.  8C2.5'' and inserting 
``Sec.  9C2.5''.
    Section 9C2.5(f) (as so redesignated) is amended--
    in paragraph (1) by striking ``Sec.  8B2.1'' and inserting ``Sec.  
9B2.1'';
    in paragraph (3)(A) by striking ``Sec.  8B2.1(b)(2)(B) or (C)'' and 
inserting ``Sec.  9B2.1(b)(2)(B) or (C)'';
    and in paragraph (3)(C)(i) by striking ``Sec.  8B2.1(b)(2)(C)'' and 
inserting ``Sec.  9B2.1(b)(2)(C)''.
    The Commentary to Sec.  9C2.5 (as so redesignated) captioned 
``Application Notes'' is amended--
    in Note 1 by striking ``Sec.  8A1.2'' and inserting ``Sec.  
9A1.2'';
    and in Note 3 by striking ``Sec.  8A1.2'' and inserting ``Sec.  
9A1.2''.
    Section 9C2.6 (as so redesignated) is amended by striking ``Sec.  
8C2.5'' and inserting ``Sec.  9C2.5''.
    Section 9C2.7(a) (as so redesignated) is amended by striking 
``Sec.  8C2.4'' and inserting ``Sec.  9C2.4''; and by striking ``Sec.  
8C2.6'' and inserting ``Sec.  9C2.6''.
    Section 9C2.7(b) (as so redesignated) is amended by striking 
``Sec.  8C2.4'' and inserting ``Sec.  9C2.4''; and by striking ``Sec.  
8C2.6'' and inserting ``Sec.  9C2.6''.
    Section 9C2.8(a)(7) (as so redesignated) is amended by striking 
``Sec.  8C2.5(c)'' and inserting ``Sec.  9C2.5(c)''.
    Section 9C2.8(a)(8) (as so redesignated) is amended by striking 
``Sec.  8C2.5'' and inserting ``Sec.  9C2.5''.
    Section 9C2.8(a)(9) (as so redesignated) is amended by striking 
``Sec.  8C2.5'' and inserting ``Sec.  9C2.5''.
    Section 9C2.8(a)(11) (as so redesignated) is amended by striking 
``Sec.  8B2.1'' and inserting ``Sec.  9B2.1''.
    The Commentary to Sec.  9C2.8 (as so redesignated) captioned 
``Application Notes'' is amended--
    in Note 5 by striking ``Sec.  8C2.5(c)'' each place such term 
appears and inserting ``Sec.  9C2.5(c)''; and by striking ``In a case 
involving a pattern of illegality, an upward departure may be 
warranted.'';
    and in Note 7 by striking ``Sec.  8C2.5(c)(2)'' and inserting 
``Sec.  9C2.5(c)(2)''.
    The Commentary to Sec.  9C2.8 (as so redesignated) is amended by 
inserting before the Commentary captioned ``Background'' the following 
new Commentary:
    ``Additional Consideration:
    1. Pattern of Illegality.--In determining the appropriate fine 
pursuant to 18 U.S.C. 3553(a) and 3572(a), evidence of a pattern of 
illegality may be relevant.''.
    The Commentary to Sec.  9C2.8 (as so redesignated) captioned 
``Background'' is amended by striking ``a basis for departure'' and 
inserting ``a basis for setting the fine either above or below the 
otherwise applicable guideline fine range''.
    Section 9C2.9 (as so redesignated) is amended by striking ``Sec.  
8C2.8'' and inserting ``Sec.  9C2.8''.
    Section 9C2.10 (as so redesignated) is amended by striking ``Sec.  
8C2.1'' and inserting ``Sec.  9C2.1''; by striking ``Sec.  8C2.8'' and 
inserting ``Sec.  9C2.8''; and by striking ``Sec.  8C2.9'' and 
inserting ``Sec.  9C2.9''.
    The Commentary to Sec.  9C2.10 (as so redesignated) captioned 
``Background'' is amended by striking ``Sec.  8C2.1'' and inserting 
``Sec.  9C2.1''.
    Section 9C3.1(a) (as so redesignated) is amended by striking 
``Sec.  8C1.1'' and inserting ``Sec.  9C1.1''; by striking ``Sec.  
8C2.7'' and inserting ``Sec.  9C2.7''; by striking ``Sec.  8C2.9'' and 
inserting ``Sec.  9C2.9''; and by striking ``Sec.  8C2.10'' and 
inserting ``Sec.  9C2.10''.
    Section 9C3.3(a) (as so redesignated) is amended by striking 
``Sec.  8C1.1'' and inserting ``Sec.  9C1.1''; by striking ``Sec.  
8C2.7'' and inserting ``Sec.  9C2.7''; and by striking ``Sec.  8C2.9'' 
and inserting ``Sec.  9C2.9''.
    Section 9C3.3(b) (as so redesignated) is amended by striking 
``Sec.  8C2.7'' both places such term appears and inserting ``Sec.  
9C2.7''; and by striking ``Sec.  8C2.9'' both places such term appears 
and inserting ``Sec.  9C2.9''.
    The Commentary to Sec.  9C3.3 (as so redesignated) captioned 
``Application Notes'' is amended in Note 1 by striking ``Sec.  8C3.2'' 
and inserting ``Sec.  9C3.2''.
    Chapter Nine, Part C, Subpart 4 (as so redesignated) is amended--
    in the heading by striking ``DEPARTURES FROM THE GUIDELINE FINE 
RANGE'' and inserting ``SUBSTANTIAL ASSISTANCE TO AUTHORITIES'';
    and by striking the Introductory Commentary as follows:

``Introductory Commentary

    The statutory provisions governing departures are set forth in 18 
U.S.C. 3553(b). Departure may be warranted if the court finds `that 
there exists an aggravating or mitigating circumstance of a kind, or to 
a degree, not adequately taken into consideration by the Sentencing 
Commission in formulating the guidelines that should result in a 
sentence different from that described.' This subpart sets forth 
certain factors that, in connection with certain offenses, may not have 
been adequately taken into consideration by the guidelines. In deciding 
whether departure is warranted, the court should consider the extent to 
which that factor is adequately taken into consideration by the 
guidelines and the relative importance or substantiality of that factor 
in the particular case.
    To the extent that any policy statement from Chapter Five, Part K 
(Departures) is relevant to the organization, a departure from the

[[Page 89216]]

applicable guideline fine range may be warranted. Some factors listed 
in Chapter Five, Part K that are particularly applicable to 
organizations are listed in this subpart. Other factors listed in 
Chapter Five, Part K may be applicable in particular cases. While this 
subpart lists factors that the Commission believes may constitute 
grounds for departure, the list is not exhaustive.''.
    Section 9C4.1(a) (as so redesignated) is amended by striking ``the 
court may depart from the guidelines'' and inserting ``the court may 
set a fine that is below the otherwise applicable guideline fine 
range''.
    The Commentary to Sec.  9C4.1 (as so redesignated) captioned 
``Application Note'' is amended in Note 1 by striking ``Departure'' and 
inserting ``Fine reduction''.
    Chapter Nine, Part C (as so redesignated) is amended by inserting 
at the end the following new Subpart 5:

``5. Consideration of Factors in Determining the Guideline Fine Range

Introductory Commentary

    Following United States v. Booker, 543 U.S. 220 (2005), the fine 
range established in this chapter remains `the starting point and the 
initial benchmark,'but the ranges established by application of the 
Guidelines Manual are advisory. See Gall v. United States, 552 U.S. 38, 
49 (2007); Peugh v. United States, 569 U.S. 530 (2013). Consistent with 
18 U.S.C. 3553(a), which remains binding on courts, courts must also 
consider a variety of additional factors when determining the sentence 
to be im-posed. This subpart sets forth certain factors that, in 
connection with certain offenses, may not have been adequately taken 
into consideration by the guidelines. These factors are provided to 
assist courts in complying with their obligation under 18 U.S.C. 
3553(a).
    To the extent that any policy statement from Chapter Six, Part A 
(Consideration of Factors in 18 U.S.C. 3553(a)) is relevant to the 
organization, the court may consider such policy statement when 
determining the applicable guideline fine range. Some factors listed in 
Chapter Six, Part A that are particularly applicable to organizations 
are listed in this subpart. Other factors listed in Chapter Six, Part A 
may be applicable in particular cases. While this subpart lists factors 
that the Commission believes may be relevant, the list is not 
exhaustive.

Sec.  9C5.1. Factors Relating to the Nature and Circumstances of the 
Organization's Offense (Policy Statement)

    (a) In considering the nature and circumstances of the offense 
pursuant to 18 U.S.C. 3553(a)(1), the following factors, if not 
accounted for in the applicable Chapter Two guideline, may be relevant:
    (1) Risk of Death or Bodily Injury--The court may consider whether 
the offense resulted in death or bodily injury or involved a 
foreseeable risk of death or bodily injury, the nature of the harm and 
the extent to which the harm was intended or knowingly risked, and the 
extent to which such harm or risk is taken into account within the 
applicable guideline fine range.
    (2) Threat to National Security.--The offense constituted a threat 
to national security.
    (3) Threat to the Environment.--The offense presented a threat to 
the environment.
    (4) Threat to a Market.--The offense presented a risk to the 
integrity or continued existence of a market, including either private 
markets (e.g., a financial market, a commodities market, or a market 
for consumer goods) or public markets (e.g., government contracting).
    (5) Official Corruption.--The organization, in connection with the 
offense, bribed or unlawfully gave a gratuity to a public official, or 
at-tempted or conspired to bribe or unlawfully give a gratuity to a 
public official.
    (6) Public Entity.--The organization is a public entity.
    (7) Members or Beneficiaries of the Organization as Victims.--In 
cases in which the members or beneficiaries, other than shareholders, 
of the organization are direct victims of the offense, the court may 
consider whether imposing a fine upon the organization may increase the 
burden upon the victims of the offense without achieving a deterrent 
effect.
    (8) Remedial Costs that Greatly Exceed Gain.--In cases in which the 
organization has paid or has agreed to pay remedial costs arising from 
the offense that greatly exceed the gain that the organization received 
from the offense, the court may consider whether a substantial fine is 
necessary in order to achieve adequate punishment and deterrence, the 
level and extent of substantial authority personnel involvement in the 
offense, and the degree to which the loss exceeds the gain.
    (9) Mandatory Programs to Prevent and Detect Violations of Law.--
The organization's culpability score is reduced under Sec.  9C2.5(f) 
(Effective Compliance and Ethics Program) and the organization had 
implemented its program in response to a court order or administrative 
order specifically directed at the organization, or the organization 
was required by law to have an effective compliance and ethics pro-gram 
but did not have such a program.
    (10) Exceptionally High Organizational Culpability.--The 
organization's culpability score is greater than 10.
    (11) Exceptionally Low Organizational Culpability.--No individual 
within substantial authority personnel participated in, condoned, or 
was willfully ignorant of the offense; the organization at the time of 
the offense had an effective program to prevent and detect violations 
of law; and the base fine is determined under Sec.  9C2.4(a)(1), Sec.  
9C2.4(a)(3), or a special instruction for fines in Chapter Two (Offense 
Conduct).

Commentary

    This policy statement recognizes that the nature, extent, and 
significance of offense specific characteristics can involve a range of 
considerations that are difficult or impossible to quantify for 
purposes of establishing the guideline fine range. This policy 
statement provides examples of factors relating to the nature and 
circumstances of the offense that are generally not considered in the 
calculation of the guideline fine range, but which courts regularly 
consider pursuant to 18 U.S.C. 3553(a). The factors identified in this 
policy statement are not weighted in any manner or intended to be 
comprehensive or to otherwise infringe upon the court's unique position 
to determine the most appropriate sentence.''.
    Chapter Nine, Part D is amended in the Introductory Commentary by 
striking ``Section 8D1.1'' and inserting ``Section 9D1.1''; and by 
striking ``Sections 8D1.2 through 8D1.4, and 8F1.1'' and inserting 
``Sections 9D1.2 through 9D1.4, and 9F1.1''.
    Section 9D1.1(a)(1) (as so redesignated) is amended by striking 
``Sec.  8B1.1'' and inserting ``Sec.  9B1.1''; by striking ``Sec.  
8B1.2'' and inserting ``Sec.  9B1.2''; and by striking ``Sec.  8B1.3'' 
and inserting ``Sec.  9B1.3''.
    Section 9D1.4(b) (as so redesignated) is amended by striking 
``Sec.  8D1.1'' and inserting ``Sec.  9D1.1''.
    Section 9D1.4(b)(1) (as so redesignated) is amended by striking 
``Sec.  8B2.1'' and inserting ``Sec.  9B2.1''.
    The Commentary to Sec.  9D1.4 captioned ``Application Notes'' is 
amended in

[[Page 89217]]

Note 1 by striking ``Sec.  8D1.1'' and inserting ``Sec.  9D1.1''; and 
by striking ``Sec.  8B2.1'' and inserting ``Sec.  9B2.1''.
    The Commentary to Sec.  9F1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``Sec. Sec.  8D1.3 (Conditions of 
Probation--Organizations) and 8D1.4 (Recommended Conditions of 
Probation--Organizations)'' and inserting ``Sec. Sec.  9D1.3 
(Conditions of Probation--Organizations) and 9D1.4 (Recommended 
Conditions of Probation--Organizations)''.

[FR Doc. 2023-28317 Filed 12-22-23; 8:45 am]
BILLING CODE 2210-40-P