[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]
BILLING CODE 2210-40-P