[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
[Notices]
[Pages 36853-36868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09709]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of submission to Congress of amendments to the
sentencing guidelines effective November 1, 2024, and request for
comment.
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SUMMARY: The United States Sentencing Commission hereby gives notice
that the Commission has promulgated amendments to the sentencing
guidelines, policy statements, commentary, and statutory index; and the
Commission requests comment regarding whether it should include in the
Guidelines Manual as changes that may be applied retroactively to
previously sentenced defendants any or all of the following amendments:
Amendment 1; Part A of Amendment 3; Part B of Amendment 3; and Part D
of Amendment 5. This notice sets forth the text of the amendments and
the reason for each amendment, and the request for comment regarding
possible retroactive application of the amendments listed above.
DATES: Effective Date of Amendments. The Commission has specified an
effective date of November 1, 2024, for the amendments set forth in
this notice.
Written Public Comment. Written public comment regarding possible
retroactive application of Amendment 1, Part A of Amendment 3, Part B
of Amendment 3, and Part D of Amendment 5, should be received by the
Commission not later than June 21, 2024. Written reply comments, which
may only respond to issues raised during the original comment period,
should be received by the Commission not later than July 22, 2024. Any
public
[[Page 36854]]
comment received after the close of the comment period, and reply
comment received on issues not raised during the original comment
period, may not be considered.
ADDRESSES: There are two methods for submitting written public comment
and reply comments.
Electronic Submission of Comments. Comments may be submitted
electronically via the Commission's Public Comment Submission Portal at
https://comment.ussc.gov. Follow the online instructions for submitting
comments.
Submission of Comments by Mail. Comments may be submitted by mail
to the following address: United States Sentencing Commission, One
Columbus Circle, NE, Suite 2-500, Washington, DC 20002-8002, Attention:
Public Affairs--Issue for Comment on Retroactivity.
FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs
Specialist, (202) 502-4597.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day of May each
year pursuant to 28 U.S.C. 994(p). Absent action of the Congress to the
contrary, submitted amendments become effective by operation of law on
the date specified by the Commission (generally November 1 of the year
in which the amendments are submitted to Congress).
(1) Amendments to the Sentencing Guidelines, Policy Statements,
Official Commentary, and Statutory Index
Pursuant to its authority under 28 U.S.C. 994(p), the Commission
has promulgated amendments to the sentencing guidelines, policy
statements, commentary, and statutory index. Notice of the proposed
amendment was published in the Federal Register on December 26, 2023
(see 88 FR 89142). The Commission held public hearings on the proposed
amendments in Washington, DC, on March 6-7, 2024. On April 30, 2024,
the Commission submitted the promulgated amendments to the Congress and
specified an effective date of November 1, 2024.
The text of the amendments to the sentencing guidelines, policy
statements, commentary, and statutory index, and the reason for each
amendment, is set forth below. Additional information pertaining to the
amendments described in this notice may be accessed through the
Commission's website at www.ussc.gov.
(2) Request for Comment on Possible Retroactive Application of
Amendment 1, Part A of Amendment 3, Part B of Amendment 3, and Part D
of Amendment 5
This notice sets forth a request for comment regarding whether the
Commission should list 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 any or all of the following amendments:
Amendment 1 (relating to acquitted conduct); Part A of Amendment 3
(relating to Sec. 2K2.1(b)(4)(B) enhancement); Part B of Amendment 3
(relating to the interaction between Sec. 2K2.4 and Sec. 3D1.2(c));
and Part D of Amendment 5 (relating to enhanced penalties for drug
offenders).
The Background Commentary to Sec. 1B1.10 lists the purpose of the
amendment, the magnitude of the change in the guideline range made by
the amendment, and the difficulty of applying the amendment
retroactively to determine an amended guideline range under Sec.
1B1.10(b) as among the factors the Commission considers in selecting
the amendments included in Sec. 1B1.10(d). To the extent practicable,
public comment should address each of these factors.
Authority: 28 U.S.C. 994(a), (o), (p), and (u); USSC Rules of
Practice and Procedure 2.2, 4.1, and 4.1A.
Carlton W. Reeves,
Chair.
(1) Amendments to the Sentencing Guidelines, Policy Statements,
Official Commentary, and Statutory Index
1. Amendment: Section 1B1.3 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.--Relevant conduct does not include conduct
for which the defendant was criminally charged and acquitted in federal
court, unless such conduct also establishes, in whole or in part, the
instant offense of conviction.''.
The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is
amended by inserting at the end the following new Note 10:
``10. Acquitted Conduct.--Subsection (c) provides that relevant
conduct does not include conduct for which the defendant was criminally
charged and acquitted in federal court, unless such conduct
establishes, in whole or in part, the instant offense of conviction.
There may be cases in which certain conduct underlies both an acquitted
charge and the instant offense of conviction. In those cases, the court
is in the best position to determine whether such overlapping conduct
establishes, in whole or in part, the instant offense of conviction and
therefore qualifies as relevant conduct.''.
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 Sec.
1B1.3(c) (Relevant Conduct). Nonetheless, nothing in the Guidelines
Manual abrogates a court's authority under 18 U.S.C. 3661.''.
Reason for Amendment: This amendment revises Sec. 1B1.3 (Relevant
[[Page 36855]]
Conduct (Factors that Determine the Guideline Range)) to exclude
acquitted conduct from the scope of relevant conduct used in
calculating a sentence range under the federal guidelines. Acquitted
conduct is unique, and this amendment does not comment on the use of
uncharged, dismissed, or other relevant conduct as defined in Sec.
1B1.3 for purposes of calculating the guideline range.
The use of acquitted conduct to increase a defendant's sentence has
been a persistent concern for many within the criminal justice system
and the subject of robust debate over the past several years. A number
of jurists, including current and past Supreme Court Justices, have
urged reconsideration of acquitted-conduct sentencing. See, e.g.,
McClinton v. United States, 143 S. Ct. 2400, 2401 & n.2 (2023)
(Sotomayor, J., Statement respecting the denial of certiorari)
(collecting cases and statements opposing acquitted-conduct
sentencing). In denying certiorari last year in McClinton, multiple
Justices suggested that it would be appropriate for the Commission to
resolve the question of how acquitted conduct is considered under the
guidelines. See id. at 2402-03; id. at 2403 (Kavanaugh, J., joined by
Gorsuch, J. and Barrett, J., Statement respecting the denial of
certiorari), but see id. (Alito, J., concurring in the denial of
certiorari). Many states have prohibited consideration of acquitted
conduct. See id. at 2401 n.2 (collecting cases). And, currently,
Congress is considering bills to prohibit its consideration at
sentencing, with bipartisan support. See Prohibiting Punishment of
Acquitted Conduct Act of 2023, S. 2788, 118th Cong. (1st Sess. 2023);
Prohibiting Punishment of Acquitted Conduct Act of 2023, H.R. 5430,
118th Cong. (1st Sess. 2023).
First, the amendment revises Sec. 1B1.3 by adding new subsection
(c), which provides that ``[r]elevant conduct does not include conduct
for which the defendant was criminally charged and acquitted in federal
court unless such conduct also establishes, in whole or in part, the
instant offense of conviction.'' This rule seeks to promote respect for
the law, which is a statutory obligation of the Commission. See 28
U.S.C Sec. 994(a)(2); id. Sec. 991(b)(1)(A) & (B); 18 U.S.C.
3553(a)(2).
This amendment seeks to promote respect for the law by addressing
some of the concerns that numerous commenters have raised about
acquitted-conduct sentencing, including those involving the ``perceived
fairness'' of the criminal justice system. McClinton, 143 S. Ct. at
2401 (Sotomayor, J., Statement respecting the denial of certiorari).
Some commenters were concerned that consideration of acquitted conduct
to increase the guideline range undermines the historical role of the
jury and diminishes ``the public's perception that justice is being
done, a concern that is vital to the legitimacy of the criminal justice
system.'' McClinton, 143 S. Ct. at 2402-03 (Sotomayor, J., Statement
respecting the denial of certiorari); see United States v. Settles, 530
F.3d 920, 924 (D.C. Cir. 2008) (expressing concern that ``using
acquitted conduct to increase a defendant's sentence undermines respect
for the law and the jury system''). They argue that consideration of
acquitted conduct at sentencing contributes to the erosion of the jury-
trial right and enlarges the already formidable power of the
government, reasoning that defendants who choose to put the government
to its proof ``face all the risks of conviction, with no practical
upside to acquittal unless they . . . are absolved of all charges.''
United States v. Bell, 808 F.3d 926, 932 (D.C. Cir. 2015) (Millett, J.,
concurring in the denial of reh'g en banc). For these reasons,
``acquittals have long been `accorded special weight,' distinguishing
them from conduct that was never charged and passed upon by a jury,''
McClinton, 143 S. Ct. at 2402 (Sotomayor, J., Statement respecting the
denial of certiorari (quoting United States v. DiFrancesco, 449 U.S.
117, 129 (1980))) and viewed as ``inviolate,'' McElrath v. Georgia, 601
U.S. 87, 94 (2024).
Second, the amendment adds new Application Note 10 to Sec.
1B1.3(c), which instructs that in ``cases in which certain conduct
underlies both an acquitted charge and the instant offense of
conviction . . . , the court is in the best position to determine
whether such overlapping conduct establishes, in whole or in part, the
instant offense of conviction and therefore qualifies as relevant
conduct.'' The amendment thus clarifies that while ``acquitted
conduct'' cannot be considered in determining the guideline range, any
conduct that establishes--in whole or in part--the instant offense of
conviction is properly considered, even as relevant conduct and even if
that same conduct also underlies a charge of which the defendant has
been acquitted. During the amendment cycle, commenters raised questions
about how a court would be able to parse out acquitted conduct in a
variety of specific scenarios, including those involving ``linked or
related charges'' or ``overlapping conduct'' (e.g., conspiracy counts
in conjunction with substantive counts or obstruction of justice counts
in conjunction with substantive civil rights counts). Commission data
demonstrate that cases involving acquitted conduct will be rare. In
fiscal year 2022, of 62,529 sentenced individuals, 1,613 were convicted
and sentenced after a trial (2.5% of all sentenced individuals), and of
those, only 286 (0.4% of all sentenced individuals) were acquitted of
at least one offense or found guilty of only a lesser included offense.
To ensure that courts may continue to appropriately sentence
defendants for conduct that establishes counts of conviction, rather
than define the specific boundaries of ``acquitted conduct'' and
``convicted conduct'' in such cases, the Commission determined that the
court that presided over the proceeding will be best positioned to
determine which conduct can properly be considered as part of relevant
conduct based on the individual facts in those cases.
The amendment limits the scope of ``acquitted conduct'' to only
those charges of which the defendant has been acquitted in federal
court. This limitation reflects the principles of the dual-sovereignty
doctrine and responds to concerns about administrability. The chief
concern regarding administrability raised by commenters throughout the
amendment cycle was whether courts would be able to parse acquitted
conduct from convicted conduct in cases in which some conduct relates
to both the acquitted and convicted counts. The Commission appreciates
that federal courts may have greater difficulty making this
determination if it involves proceedings that occurred in another
jurisdiction and at different times.
Third, and finally, the amendment makes corresponding changes to
Sec. 6A1.3 (Resolution of Disputed Factors (Policy Statement)),
restating the principle provided in Sec. 1B1.3(c) and further
clarifying that ``nothing in the Guidelines Manual abrogates a court's
authority under 18 U.S.C. 3661.''
2. 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--
[[Page 36856]]
(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
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(I) 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''.
Reason for Amendment: This 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.
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.'' Following Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019),
which limited deference to executive agencies' interpretation of
regulations to situations in which the regulation is ``genuinely
ambiguous,'' the deference afforded to various guideline commentary
provisions has been
[[Page 36857]]
debated and is the subject of conflicting court decisions.
Applying Kisor, the Third Circuit has held that Application Note
3(A) of the commentary to Sec. 2B1.1 (Theft, Property Destruction, and
Fraud) is not entitled to deference. See United States v. Banks, 55
F.4th 246 (3d Cir. 2022). Application Note 3(A) provides a general rule
that ``loss is the greater of actual loss or intended loss'' for
purposes of the loss table in Sec. 2B1.1(b)(1), which increases an
individual's offense level based on loss amount. In Banks, the Third
Circuit held that ``the term `loss' [wa]s unambiguous in the context of
Sec. 2B1.1'' and that it unambiguously referred to ``actual loss.''
The Third Circuit reasoned that ``the commentary expand[ed] the
definition of `loss' by explaining that generally `loss is the greater
of actual loss or intended loss,' '' and therefore ``accord[ed] the
commentary no weight.'' Banks, 55 F.4th at 253, 258.
The loss calculations for individuals in the Third Circuit are now
computed differently than elsewhere, where other circuit courts have
uniformly applied the general rule in Application Note 3(A). The
Commission estimates that before the Banks decision approximately 50
individuals per year were sentenced using intended loss in the Third
Circuit.
To ensure consistent loss calculation across circuits, the
amendment creates Notes to the loss table in Sec. 2B1.1(b)(1) and
moves 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 amendment also moves rules 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 amendment makes 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.
While the Commission may undertake a comprehensive review of Sec.
2B1.1 in a future amendment cycle, this amendment aims to ensure
consistent guideline application in the meantime without taking a
position on how loss may be calculated in the future.
3. Amendment:
Part A (Sec. 2K2.1(b)(4)(B) Enhancement)
Section 2K2.1(b)(4)(B)(i) is amended by striking ``any firearm had
an altered or obliterated serial number'' and inserting ``any firearm
had a serial number that was modified such that the original
information is rendered illegible or unrecognizable to the unaided
eye''.
The Commentary to Sec. 2K2.1 is amended--
in Note 8(A) by striking ``if the offense involved a firearm with
an altered or obliterated serial number'' and inserting ``if the
offense involved a firearm with a serial number that was modified such
that the original information is rendered illegible or unrecognizable
to the unaided eye''; and by striking ``This is because the base
offense level takes into account that the firearm had an altered or
obliterated serial number.'';
and in Note 8(B) by striking ``regardless of whether the defendant
knew or had reason to believe that the firearm was stolen or had an
altered or obliterated serial number'' and inserting ``regardless of
whether the defendant knew or had reason to believe that the firearm
was stolen or had a serial number that was modified such that the
original information is rendered illegible or unrecognizable to the
unaided eye''.
Part B (Interaction Between Sec. 2K2.4 and Sec. 3D1.2(c))
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
[[Page 36858]]
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.
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).''.
Reason for Amendment: This amendment addresses 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). Part
A addresses whether the serial number of a firearm must be illegible
for application of the enhancement for an ``altered or obliterated''
serial number at Sec. 2K2.1(b)(4)(B), and Part B addresses 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 an 18 U.S.C. 924(c)
conviction.
Part A--Section 2K2.1(b)(4)(B) Enhancement
Part A of the amendment resolves the differences in how the
circuits interpret the term ``altered'' in the 4-level enhancement at
Sec. 2K2.1(b)(4)(B), which applies when the serial number of a firearm
has been ``altered or obliterated.'' A circuit conflict has arisen as
to whether the serial number must be illegible for this enhancement to
apply and as to what test for legibility should be employed.
The Sixth and Second Circuits have adopted the naked eye test. The
Sixth Circuit held that a serial number must be illegible, noting that
``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). The Sixth Circuit reasoned
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 followed the Sixth Circuit in holding
that ``altered'' means illegible for the same reasons. United States v.
St. Hilaire, 960 F.3d 61, 66 (2d Cir. 2020).
By contrast, the Fourth, Fifth, and Eleventh Circuits have upheld
the enhancement where a serial number is ``less legible.'' 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.''
United States v. Harris, 720 F.3d 499, 501 (4th Cir. 2013). The Fifth
Circuit similarly affirmed the enhancement even though the damage did
not render the serial number unreadable because ``the serial number of
the firearm [ ] had been materially changed in a way that made its
accurate information less accessible.'' United States v. Perez, 585
F.3d 880, 884 (5th Cir. 2009). In an unpublished opinion, the Eleventh
Circuit reasoned that an interpretation where ``altered'' means
illegible ``would render `obliterated' superfluous.'' United States v.
Millender, 791 F. App'x 782, 783 (11th Cir. 2019).
[[Page 36859]]
This amendment resolves this circuit conflict by amending the
enhancement to adopt the holdings of the Second and Sixth Circuits. As
amended, the enhancement applies if ``any firearm had a serial number
that was modified such that the original information is rendered
illegible or unrecognizable to the unaided eye.'' This amendment is
consistent with the Commission's recognition in 2006 of ``both the
difficulty in tracing firearms with altered and obliterated serial
numbers, and the increased market for these types of weapons.'' See
USSG, App. C, amend. 691 (effective Nov. 1, 2006). By employing the
``unaided eye'' test for legibility, the amendment also seeks to
resolve the circuit split and ensure uniform application.
Part B--Grouping: Sec. 2K2.4, Application Note 4
Part B resolves a difference among circuits 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). Section 3D1.2 (Grouping of Closely Related Counts)
contains four rules for determining whether multiple counts should
group because they are closely related. 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.''
While there is little disagreement that the felon-in-possession and
drug trafficking counts ordinarily group under Sec. 3D1.2(c), courts
differ regarding the extent to which the presence of the count under 18
U.S.C. 924(c) prohibits grouping under the guidelines. Section 2K2.4
(Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in
Relation to Certain Crimes) is applicable to certain statutes with
mandatory minimum terms of imprisonment (e.g., 18 U.S.C. 924(c)). 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.''
The Sixth, Eighth, and Eleventh Circuits have held that such counts
can group together under Sec. 3D1.2(c) because the felon-in-possession
convictions and drug trafficking convictions each include conduct that
is treated as specific offense characteristics in the other offense,
even if those specific offense characteristics do not apply due to
Sec. 2K2.4. United States v. Gibbs, 395 F. App'x 248, 250 (6th Cir.
2010); United States v. Bell, 477 F.3d 607, 615-16 (8th Cir. 2007);
United States v. King, 201 F. App'x 715, 718 (11th Cir. 2006). By
contrast, the Seventh Circuit has held that felon-in-possession and
drug trafficking counts do not group under these circumstances because
the grouping rules apply 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).
This amendment revises Application Note 4 to Sec. 2K2.4 and
reorganizes it into three subparagraphs. Subparagraph A retains the
same instruction on the non-applicability of certain enhancements;
subparagraph B explains the impact on grouping; and subparagraph C
retains the upward departure provision. As amended, subparagraph B
resolves the circuit conflict by explicitly instructing that ``[i]f 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).''
This amendment aligns with the holdings of the majority of circuits
involved in the circuit conflict. Additionally, this amendment
clarifies the Commission's view that promulgation of this Application
Note originally was not intended to place any limitations on grouping.
4. 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 or prior offenses. Certain risk
factors may affect a youthful individual's development into the mid-
20's and contribute to involvement in criminal justice systems,
including environment, adverse childhood experiences, substance use,
lack of educational opportunities, and familial relationships. In
addition, youthful individuals generally are more impulsive, risk-
seeking, and susceptible to outside influence as their brains continue
to develop into young adulthood. Youthful individuals also are more
amenable to rehabilitation.
The age-crime curve, one of the most consistent findings in
criminology, demonstrates that criminal behavior tends to decrease with
age. Age-appropriate interventions and other protective factors may
promote desistance from crime. Accordingly, 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.
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).''.
Reason for Amendment: This amendment makes several revisions to
Sec. 5H1.1 (Age (Policy Statement)), which addresses the relevance of
age in sentencing. Before the amendment, Sec. 5H1.1 provided, 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.''
[[Page 36860]]
The amendment revises the first sentence in Sec. 5H1.1 to provide
more broadly that ``[a]ge may be relevant in determining whether a
departure is warranted.'' It also adds language specifically providing
that a downward departure may be warranted in cases in which the
defendant was youthful at the time of the instant offense or any prior
offenses. In line with the Commission's statutory duty to establish
sentencing policies that reflect ``advancement in knowledge of human
behavior as it relates to the criminal justice process,'' 28 U.S.C.
991(b)(1)(C), this amendment reflects the evolving science and data
surrounding youthful individuals, including recognition of the age-
crime curve and that cognitive changes lasting into the mid-20s affect
individual behavior and culpability. The amendment also reflects expert
testimony to the Commission indicating that certain risk factors may
contribute to youthful involvement in criminal justice systems, while
protective factors, including appropriate interventions, may promote
desistance from crime.
5. Amendment:
Part A (Export Control Reform Act of 2018)
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.''.
Appendix A (Statutory Index) is amended in the line referenced to
50 U.S.C. 4610 by striking ``Sec. 4610'' and inserting ``Sec. 4819''.
Part B (Offenses Involving Records and Reports on Monetary Instruments
Transactions)
Section 2S1.3(b)(2)(B) is amended by striking ``committed the
offense as part of a pattern of unlawful activity involving more than
$100,000 in a 12-month period'' and inserting ``committed the offense
while violating another law of the United States or as part of a
pattern of unlawful activity involving more than $100,000 in a 12-month
period''.
Part C (Antitrust Offenses)
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.--'';
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''.
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)''.
Part D (Enhanced Penalties for Drug Offenders)
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
[[Page 36861]]
(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 is convicted of an offense 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), to which the mandatory statutory term of life
imprisonment applies; or (B) the parties stipulate to (i) such an
offense for purposes of calculating the guideline range under Sec.
1B1.2 (Applicable Guidelines); or (ii) such base offense level; or
(2) 38, if (A) the defendant is convicted of an offense 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), to which the statutory term of imprisonment of not
less than 20 years to life applies; or (B) the parties stipulate to (i)
such an offense for purposes of calculating the guideline range under
Sec. 1B1.2 (Applicable Guidelines); or (ii) such base offense level;
or
(3) 30, if (A) the defendant is convicted of an offense under 21
U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5) to which the statutory
maximum term of imprisonment of 30 years applies; or (B) the parties
stipulate to (i) such an offense for purposes of calculating the
guideline range under Sec. 1B1.2 (Applicable Guidelines); or (ii) such
base offense level; or
(4) 26, if (A) the defendant is convicted of an offense under 21
U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5) to which the statutory
maximum term of imprisonment of 15 years applies; or (B) the parties
stipulate to (i) such an offense for purposes of calculating the
guideline range under Sec. 1B1.2 (Applicable Guidelines); or (ii) such
base offense level; or''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended--
by striking Notes 1 through 4 as follows:
``1. Definitions.--
For purposes of the guidelines, a `plant' is an organism having
leaves and a readily observable root formation (e.g., a marihuana
cutting having roots, a rootball, or root hairs is a marihuana plant).
For purposes of subsection (a), `serious drug felony,' `serious
violent felony,' and `felony drug offense' have the meaning given those
terms in 21 U.S.C. 802.
2. `Mixture or Substance'.--`Mixture or substance' as used in this
guideline has the same meaning as in 21 U.S.C. 841, except as expressly
provided. Mixture or substance does not include materials that must be
separated from the controlled substance before the controlled substance
can be used. Examples of such materials include the fiberglass in a
cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax
statue, and waste water from an illicit laboratory used to manufacture
a controlled substance. If such material cannot readily be separated
from the mixture or substance that appropriately is counted in the Drug
Quantity Table, the court may use any reasonable method to approximate
the weight of the mixture or substance to be counted.
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.
Similarly, in the case of marihuana having a moisture content that
renders the marihuana unsuitable for consumption without drying (this
might occur, for example, with a bale of rain-soaked marihuana or
freshly harvested marihuana that had not been dried), an approximation
of the weight of the marihuana without such excess moisture content is
to be used.
3. Classification of Controlled Substances.--Certain pharmaceutical
preparations are classified as Schedule III, IV, or V controlled
substances by the Drug Enforcement Administration under 21 CFR 1308.13-
15 even though they contain a small amount of a Schedule I or II
controlled substance. For example, Tylenol 3 is classified as a
Schedule III controlled substance even though it contains a small
amount of codeine, a Schedule II opiate. For the purposes of the
guidelines, the classification of the controlled substance under 21 CFR
1308.13-15 is the appropriate classification.
4. Applicability to `Counterfeit' Substances.--The statute and
guideline also apply to `counterfeit' substances, which are defined in
21 U.S.C. 802 to mean controlled substances that are falsely labeled so
as to appear to have been legitimately manufactured or distributed.'';
and inserting the following new Notes 1 through 4:
``1. Definition of `Plant'.--For purposes of the guidelines, a
`plant' is an organism having leaves and a readily observable root
formation (e.g., a marihuana cutting having roots, a rootball, or root
hairs is a marihuana plant).
2. Application of Subsection (a).--Subsection (a) provides base
offense levels for offenses under 21 U.S.C. 841 and 960 based upon the
quantity of the controlled substance involved, the defendant's criminal
history, and whether death or serious bodily injury resulted from the
offense.
Subsection (a)(1) provides a base offense level of 43 for offenses
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), to which the mandatory statutory term of
life imprisonment applies because death or serious bodily injury
resulted from the use of the controlled substance and the defendant
committed the offense after one or more prior convictions for a serious
drug felony, serious violent felony, or felony drug offense.
Subsection (a)(2) provides a base offense level of 38 for offenses
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), to which the statutory minimum term of
imprisonment of not less than 20 years to life applies because death or
serious bodily injury resulted from the use of the controlled
substance.
Subsection (a)(3) provides a base offense level of 30 for offenses
under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5) to which the
statutory maximum term of imprisonment of 30 years applies because
death or serious bodily injury resulted from the use of the controlled
substance and the defendant committed the offense after one or more
prior convictions for a felony drug offense.
Subsection (a)(4) provides a base offense level of 26 for offenses
under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5) to which the
statutory maximum term of imprisonment of 15 years applies because
death or serious bodily injury resulted from the use of the controlled
substance.
The terms `serious drug felony,' `serious violent felony,' and
`felony drug offense' are defined in 21 U.S.C. 802. The base offense
levels in subsections (a)(1) through (a)(4) would also apply if the
parties stipulate to the applicable offense described in those
provisions for purposes of calculating the guideline range under Sec.
1B1.2 (Applicable Guidelines) or to any such base offense level.
3. `Mixture or Substance'.--`Mixture or substance' as used in this
guideline has the same meaning as in 21 U.S.C. 841, except as expressly
provided. Mixture or substance does not include materials that must be
separated from the controlled substance before the controlled substance
can be used. Examples of such materials include the
[[Page 36862]]
fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a
cocaine/beeswax statue, and waste water from an illicit laboratory used
to manufacture a controlled substance. If such material cannot readily
be separated from the mixture or substance that appropriately is
counted in the Drug Quantity Table, the court may use any reasonable
method to approximate the weight of the mixture or substance to be
counted.
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.
Similarly, in the case of marihuana having a moisture content that
renders the marihuana unsuitable for consumption without drying (this
might occur, for example, with a bale of rain-soaked marihuana or
freshly harvested marihuana that had not been dried), an approximation
of the weight of the marihuana without such excess moisture content is
to be used.
4. In General.--
(A) Classification of Controlled Substances.--Certain
pharmaceutical preparations are classified as Schedule III, IV, or V
controlled substances by the Drug Enforcement Administration under 21
CFR 1308.13-15 even though they contain a small amount of a Schedule I
or II controlled substance. For example, Tylenol 3 is classified as a
Schedule III controlled substance even though it contains a small
amount of codeine, a Schedule II opiate. For the purposes of the
guidelines, the classification of the controlled substance under 21 CFR
1308.13-15 is the appropriate classification.
(B) Applicability to `Counterfeit' Substances.--The statute and
guideline also apply to `counterfeit' substances, which are defined in
21 U.S.C. 802 to mean controlled substances that are falsely labeled so
as to appear to have been legitimately manufactured or distributed.''.
Part E (``Sex Offense'' Definition in Sec. 4C1.1 (Adjustment for
Certain Zero-Point Offenders))
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''.
Reason for Amendment: This multi-part amendment responds to
recently enacted legislation and miscellaneous guideline application
issues.
Part A--Export Control Reform Act of 2018
Part A of the amendment amends Appendix A (Statutory Index) to
reference the new statutory provisions from the Export Control Reform
Act (ECRA) of 2018, enacted as part of the John S. McCain National
Defense Authorization Act for Fiscal Year 2019, Public Law 115-232
(Aug. 13, 2018), to Sec. 2M5.1 (Evasion of Export Controls; Financial
Transactions with Countries Supporting International Terrorism). The
ECRA repealed the Export Administration Act (EAA) of 1979 regarding
dual-use export controls, previously codified at 50 U.S.C. 4601-4623.
At the same time, the Act promulgated new provisions, codified at 50
U.S.C. 4811-4826, relating to export controls for national security and
foreign policy purposes. Section 4819 prohibits a willful violation of
the Act or attempts and conspiracies to violate any regulation, order,
license, or other authorization issued under the Act, with a maximum
term of imprisonment of 20 years. Section 4819 replaced the penalty
provision of the repealed Act, at 50 U.S.C. 4610 (Violations), which
had been referenced in Appendix A to Sec. 2M5.1. The Commission
determined that Sec. 2M5.1 remains the most analogous guideline for
the offenses prohibited under the new section 4819. As such, the
amendment revises Appendix A to delete the reference to 50 U.S.C. 4610
and replaces it with a reference to 50 U.S.C. 4819, with conforming
changes in the Commentary.
Part B--Offenses Involving Records and Reports on Monetary Instruments
Transactions
Part B of the amendment revises the 2-level enhancement at
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 better account for certain enhanced
penalty provisions in subchapter II (Records and Reports on Monetary
Instruments Transactions) of chapter 53 (Monetary Transactions) of
title 31 (Money and Finance), United States Code (``subchapter II'').
Most substantive criminal offenses in subchapter II are punishable
at 31 U.S.C. 5322 (Criminal penalties). Section 5322(a) provides a
maximum term of imprisonment of five years for a simple violation.
Section 5322(b) provides an enhanced maximum term of imprisonment of
ten years if the offense was committed while ``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.'' Two additional
criminal offenses in subchapter II provide substantially similar
enhanced maximum terms of imprisonment, at sections 5324(d)(2)
(Structuring transactions to evade reporting requirement prohibited)
and 5336(h)(3)(B)(ii)(II) (Beneficial ownership information reporting
requirements).
While Sec. 2S1.3(b)(2)(B) accounted for offenses involving a ``a
pattern of any illegal activity involving more than $100,000,'' the
Department of Justice raised concerns that it does not address the
other aggravating statutory condition of committing the offense while
``violating another law of the United States.'' Addressing these
concerns, the Commission determined that an amendment to Sec.
2S1.3(b)(2)(B) that expressly provides for this additional alternative
factor more fully gives effect to the enhanced penalty provisions
provided for in sections 5322(b), 5324(d)(2), and
5336(h)(3)(B)(ii)(II).
Part C--Antitrust Offenses
Part C of the amendment 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). 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 section
3(a) and added a new criminal offense at a new section 3(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). At the time, the Commission
referenced section 3(b) in Appendix A to Sec. 2R1.1 but did not
reference section 3(a) to any guideline.
Part C of the amendment amends 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.
[[Page 36863]]
3(a). This change reflects the fact that Sec. 2R1.1 is intended to
apply to antitrust offenses involving agreements among competitors,
such as horizontal price-fixing (including bid-rigging) and horizontal
market-allocation, the type of conduct proscribed at section 3(a), and
does not address monopolization offenses, the type of conduct
prohibited by section 3(b).
Part D--Enhanced Penalties for Drug Offenders
Part D of the amendment clarifies that the alternative enhanced
base offense levels at Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy) are based on the offense of
conviction, not relevant conduct. Sections 841 and 960 of title 21,
United States Code, contain crimes with mandatory minimum penalties for
defendants whose instant offense resulted in death or serious bodily
injury and crimes with mandatory minimum penalties for defendants with
the combination of both an offense resulting in death or serious bodily
injury and prior convictions for certain specified offenses. The
Commission received public comment and testimony that it was unclear
whether the Commission intended for Sec. Sec. 2D1.1(a)(1)-(a)(4) to
apply only when the defendant was convicted of one of these crimes or
whenever a defendant meets the applicable requirements based on
relevant conduct.
The amendment resolves the issue by amending Sec. Sec.
2D1.1(a)(1)-(4) to clarify that the base offense levels in those
provisions apply only when the individual is convicted of an offense
under sections 841(b) or 960(b) to which the applicable enhanced
statutory mandatory minimum term of imprisonment applies, or when the
parties have stipulated to: (i) such an offense for purposes of
calculating the guideline range under Sec. 1B1.2 (Applicable
Guidelines); or (ii) such base offense level. The amendment is intended
to clarify the Commission's original intent that the enhanced base
offense levels apply because the statutory elements have been
established and the defendant was convicted under the enhanced penalty
provision provided in sections 841(b) or 960(b). The amendment also
responds to comments made by the Federal Public and Community Defenders
and the Department of Justice that the enhanced penalties should also
apply when the parties stipulate to their application. The amendment
also amends the Commentary to Sec. 2D1.1 to add an application note
explaining the applicable mandatory minimum terms of imprisonment that
apply ``based upon the quantity of the controlled substance involved,
the defendant's criminal history, and whether death or serious bodily
injury resulted from the offense.''
Part E--``Sex Offense'' Definition in Sec. 4C1.1 (Adjustment for
Certain Zero-Point Offenders)
Part E of the amendment responds to concerns that the definition of
``sex offense'' in subsection (b)(2) of Sec. 4C1.1 (Adjustment for
Certain Zero-Point Offenders) was too restrictive because it applied
only to offenses perpetrated against minors.
In 2023, the Commission added a new Chapter Four guideline at Sec.
4C1.1 that provides a 2-level decrease from the offense level
determined under Chapters Two and Three for ``zero-point'' offenders
who meet certain criteria. See USSG App. C, amend. 821 (effective Nov.
1, 2023). The 2-level decrease 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) defined ``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; or (B) an attempt or
a conspiracy to commit any offense described in subparagraphs (A)(i)
through (iv) of this definition.''
The amendment revises the definition of ``sex offense'' at Sec.
4C1.1(b)(2) by striking the phrase ``perpetrated against a minor'' to
ensure that any individual who commits a covered sex offense against
any victim, regardless of age, is excluded from receiving the 2-level
reduction under Sec. 4C1.1. In making this revision, the Commission
determined that expanding the definition to cover all conduct in the
provisions listed in the definition regardless of the victim's age was
appropriate for two reasons. First, given the egregious nature of
sexual assault and the gravity of the physical, emotional, and
psychological harms that victims experience, the Commission determined
that its initial policy determination to treat adult and minor victims
differently for purposes of the 2-level reduction should be revised.
Second, the Commission concluded that while some individuals would
already be excluded from the 2-level reduction if they employed
violence or their conduct resulted in death or serious bodily injury to
the victim (conduct which is taken into account at Sec. 4C1.1(a)(3)
and (a)(4), respectively), many serious sex offenses are committed
through coercion and other non-violent means and can leave lasting
consequences on victims.
6. Amendment: Section 1B1.1(a)(6) is amended by striking ``Part B
of Chapter Four'' and inserting ``Parts B and C of Chapter Four''.
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:
``Cumulative Application of Multiple Adjustments.--'';
in Note 4(A) by striking ``specific offense characteristic
subsection'' and inserting ``specific offense characteristic''; and 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.--''.
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)''.
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--
[[Page 36864]]
in Note 1 by striking `` `Equity securities' '' and inserting ``
`Equity security' '';
in Note 3(E), as redesignated by Amendment 2 of this document, by
striking ``subdivision (A)'' and inserting ``subparagraph (A)'';
in Note 3(E)(i), as redesignated by Amendment 2 of this document,
by striking ``this subdivision'' and inserting ``this clause'';
in Note 3(E)(viii), as redesignated by Amendment 2 of this
document, 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 (B)'' and inserting ``subparagraph (B)''.
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 680 gm
(PCC) =.
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 500 gm'';
(MDEA) =.
and inserting the following:
``1 gm of 1-Piperidinocyclohexanecarbonitrile 680 gm
(PCC) =.
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 500 gm
(MDEA) =.
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:
[[Page 36865]]
``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''.
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 Note'' 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 places such
term appears and inserting ``United States Code''.
The Commentary to Sec. 2S1.1 captioned ``Application Notes'' is
amended--
in Note 1 by striking ``authorized Federal official'' and inserting
``authorized federal official'';
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).--''.
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)''.
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 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
[[Page 36866]]
(11) the defendant was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. 848;''.
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 Note'' 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 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,''.
Reason for Amendment: This amendment makes technical, stylistic,
and other non-substantive changes to the Guidelines Manual.
The amendment makes technical and conforming changes in response to
the recent promulgation of Sec. 4C1.1 (Adjustment for Certain Zero-
Point Offenders), which provides a 2-level decrease for certain
defendants who have zero criminal history points. The decrease applies
only if none of the exclusionary criteria set forth in subsection (a)
applies. Currently, the exclusionary criteria include 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.'' Since
promulgation of Sec. 4C1.1, several stakeholders have questioned
whether either condition in subsection (a)(10) is disqualifying or
whether only the combination of both conditions is disqualifying. The
Commission intended Sec. 4C1.1(a)(10) to track the safety valve
criteria at 18 U.S.C. 3553(f)(4), such that defendants are ineligible
for safety valve relief if they either have an aggravating role or
engaged in a continuing criminal enterprise. 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). To clarify the Commission's intention that a defendant is
ineligible for the adjustment if the defendant meets either of the
disqualifying conditions in the provision, the amendment makes
technical changes to Sec. 4C1.1 to divide subsection (a)(10) into two
separate provisions (subsections (a)(10) and (a)(11)).
The amendment also adds references to Chapter Four, Part C
(Adjustment for Certain Zero-Point Offenders) in 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 provisions of the Guidelines Manual
should be applied.
Finally, the amendment makes technical and clerical changes to--
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;
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'';
the Commentary to Sec. 2B1.6 (Aggravated Identity Theft),
to correct some typographical errors and provide stylistic consistency
in how subdivisions are designated;
Sec. 2B3.1 (Robbery), to provide stylistic consistency in
how subdivisions are designated and add headings to the application
notes in the Commentary;
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;
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;
Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting,
or Trafficking
[[Page 36867]]
(Including Possession with Intent to Commit These Offenses)), to
provide stylistic consistency in how subdivisions are designated, make
clerical changes to some controlled substance 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;
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;
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;
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;
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;
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;
Sec. 2K1.4 (Arson; Property Damage by Use of Explosives),
to provide stylistic consistency in how subdivisions are designated;
the Commentary to Sec. 2K2.4 (Use of Firearm, Armor-
Piercing Ammunition, or Explosive During or in Relation to Certain
Crimes), to correct typographical errors;
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;
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;
the Commentary to Sec. 3D1.1 (Procedure for Determining
Offense Level on Multiple Counts), to add a heading to an application
note;
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;
Sec. 4A1.2 (Definitions and Instructions for Computing
Criminal History), to provide stylistic consistency in how subdivisions
are designated;
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, Public Law 115-391
(Dec. 21, 2018) to limit the ``stacking'' of certain mandatory minimum
penalties imposed under 18 U.S.C. 924(c) for multiple offenses that
involve using, carrying, possessing, brandishing, or discharging a
firearm in furtherance of a crime of violence or drug trafficking
offense);
the Commentary to Sec. 5K1.1 (Substantial Assistance to
Authorities (Policy Statement)), to add headings to application notes
and correct a typographical error;
Sec. 5K2.0 (Grounds for Departure (Policy Statement)), to
correct a typographical error and provide stylistic consistency in how
subdivisions are designated;
Sec. 5E1.2 (Fines for Individual Defendants), to provide
stylistic consistency in how subdivisions are designated;
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;
Sec. 6A1.5 (Crime Victims' Rights (Policy Statement)), to
provide consistency in the use of capitalization; and
the Commentary to Sec. 8B2.1 (Effective Compliance and
Ethics Program), to provide consistency in the use of capitalization.
(2) Request for Comment on Possible Retroactive Application of
Amendment 1, Part A of Amendment 3, Part B of Amendment 3, and Part D
of Amendment 5
On April 30, 2024, the Commission submitted to the Congress
amendments to the sentencing guidelines, policy statements, official
commentary, and Statutory Index, which become effective on November 1,
2024, unless Congress acts to the contrary. Such amendments and the
reason for each amendment are included in this notice.
Section 3582(c)(2) of title 18, United States Code, provides that
``in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon
motion of the defendant or the Director of the Bureau of Prisons, or on
its own motion, the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that
they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.'' Pursuant to 28
U.S.C. 994(u), ``[i]f the Commission reduces the term of imprisonment
recommended in the guidelines applicable to a particular offense or
category of offenses, it shall specify in what circumstances and by
what amount the sentences of prisoners serving terms of imprisonment
for the offense may be reduced.'' The Commission lists in subsection
(d) of Sec. 1B1.10 (Reduction in Term of Imprisonment as a Result of
Amended Guideline Range (Policy Statement)) the specific guideline
amendments that the court may apply retroactively under 18 U.S.C.
3582(c)(2).
The following amendments may have the effect of lowering guideline
ranges: Amendment 1 (relating to acquitted conduct); Part A of
Amendment 3 (relating to Sec. 2K2.1(b)(4)(B) enhancement); Part B of
Amendment 3 (relating to the interaction between Sec. 2K2.4 and Sec.
3D1.2(c)); and Part D of Amendment 5 (relating to enhanced penalties
for drug offenders). The Commission intends to consider whether,
pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any or all of
these amendments should be included in Sec. 1B1.10(d) as an amendment
that may be applied retroactively to previously sentenced defendants.
In considering whether to do so, the Commission will consider, among
other things, a retroactivity impact analysis and public comment.
Accordingly, the Commission seeks public comment on whether it should
make any or all of these amendments available for retroactive
application. To help inform public comment, the retroactivity impact
analyses of these amendments will be made available to the public as
soon as practicable.
The Background Commentary to Sec. 1B1.10 lists the purpose of the
amendment, the magnitude of the change in the guideline range made by
the amendment, and the difficulty of applying the amendment
retroactively to determine an amended guideline range under Sec.
1B1.10(b) as among the factors the Commission considers in selecting
the amendments included in Sec. 1B1.10(d). To the extent practicable,
[[Page 36868]]
public comment should address each of these factors.
The Commission seeks comment on whether it should list in Sec.
1B1.10(d) as changes that may be applied retroactively to previously
sentenced defendants any or all of the following amendments: Amendment
1 (relating to acquitted conduct); Part A of Amendment 3 (relating to
Sec. 2K2.1(b)(4)(B) enhancement); Part B of Amendment 3 (relating to
the interaction between Sec. 2K2.4 and Sec. 3D1.2(c)); and Part D of
Amendment 5 (relating to enhanced penalties for drug offenders). For
each of these amendments, the Commission requests comment on whether
any such amendment should be listed in Sec. 1B1.10(d) as an amendment
that may be applied retroactively.
If the Commission does list any or all of these amendments in Sec.
1B1.10(d) as an amendment that may be applied retroactively to
previously sentenced defendants, should the Commission provide further
guidance or limitations regarding the circumstances in which and the
amount by which sentences may be reduced?
[FR Doc. 2024-09709 Filed 5-2-24; 8:45 am]
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