[Federal Register Volume 90, Number 22 (Tuesday, February 4, 2025)]
[Notices]
[Pages 8968-8999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-02129]
[[Page 8967]]
Vol. 90
Tuesday,
No. 22
February 4, 2025
Part II
United States Sentencing Commission
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Sentencing Guidelines for United States Courts; Notice
Federal Register / Vol. 90, No. 22 / Tuesday, February 4, 2025 /
Notices
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice and request for public comment and hearing.
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SUMMARY: The United States Sentencing Commission is considering
promulgating amendments to the sentencing guidelines, policy
statements, and commentary. This notice sets forth the proposed
amendments and, for each proposed amendment, a synopsis of the issues
addressed by that proposed amendment. This notice also sets forth
several issues for comment, some of which are set forth together with
the proposed amendments, and one of which (regarding retroactive
application of proposed amendments) is set forth in the Supplementary
Information section of this notice.
DATES:
Written Public Comment. Written public comment regarding the
proposed amendments and issues for comment set forth in this notice,
including public comment regarding retroactive application of any of
the proposed amendments, should be received by the Commission not later
than March 3, 2025. Written reply comments, which may only respond to
issues raised during the original comment period, should be received by
the Commission not later than March 18, 2025. Public comment regarding
a proposed amendment 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.
Public Hearing. The Commission may hold a public hearing regarding
the proposed amendments and issues for comment set forth in this
notice. Further information regarding any public hearing that may be
scheduled, including requirements for testifying and providing written
testimony, as well as the date, time, location, and scope of the
hearing, will be provided by the Commission on its website at
www.ussc.gov.
ADDRESSES: There are two methods for submitting public comment.
Electronic Submission of Comments. Comments may be submitted
electronically via the Commission's Public Comment Submission Portal at
https://comment.ussc.gov. Follow the online instructions for submitting
comments.
Submission of Comments by Mail. Comments may be submitted by mail
to the following address: United States Sentencing Commission, One
Columbus Circle NE, Suite 2-500, Washington, DC 20002-8002, Attention:
Public Affairs--Proposed Amendments.
FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs
Specialist, (202) 502-4597.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day of May each
year pursuant to 28 U.S.C. 994(p).
Publication of a proposed amendment requires the affirmative vote
of at least three voting members of the Commission and is deemed to be
a request for public comment on the proposed amendment. See USSC Rules
of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote
of at least four voting members is required to promulgate an amendment
and submit it to Congress. See id. 2.2; 28 U.S.C. 994(p).
The Commission published a notice of proposed amendments in the
Federal Register on January 2, 2025 (see 90 FR 128). Those proposed
amendments have a public comment period ending on February 3, 2025, and
a reply comment period ending on February 18, 2025. The Commission is
now considering promulgating additional amendments to the sentencing
guidelines, policy statements, and commentary. This notice sets forth
those proposed amendments.
The proposed amendments in this notice are presented in one of two
formats. First, some of the amendments are proposed as specific
revisions to a guideline, policy statement, or commentary. Bracketed
text within a proposed amendment indicates a heightened interest on the
Commission's part in comment and suggestions regarding alternative
policy choices; for example, a proposed enhancement of [2][4][6] levels
indicates that the Commission is considering, and invites comment on,
alternative policy choices regarding the appropriate level of
enhancement. Similarly, bracketed text within a specific offense
characteristic or application note means that the Commission
specifically invites comment on whether the proposed provision is
appropriate. Second, the Commission has highlighted certain issues for
comment and invites suggestions on how the Commission should respond to
those issues.
In summary, the proposed amendments and issues for comment set
forth in this notice are as follows:
(1) A two-part proposed amendment relating to supervised release,
including (A) amendments to Chapter Five, Part D (Supervised Release)
to provide courts greater discretion to impose a term of supervised
release in the manner it determines is most appropriate based on an
individualized assessment of the defendant and to ensure the provisions
in this Chapter fulfill rehabilitative ends, distinct from those of
incarceration, and related issues for comment; and (B) amendments to
Chapter Seven (Violations of Probation and Supervised Release) to
provide courts greater discretion to respond to a violation of a
condition of supervised release and to ensure the provisions in this
Chapter reflect the differences between probation and supervised
release, and related issues for comment.
(2) A multi-part proposed amendment relating to drug offenses,
including (A) (i) three options for amending Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) to set the highest base offense level in the Drug Quantity
Table at subsection (c) at a lower base offense level, and related
issues for comment; and (ii) two options for amending Sec. 2D1.1 to
add a new specific offense characteristic providing for a reduction
relating to low-level trafficking functions, and related issues for
comment; (B) (i) amendments to Sec. 2D1.1 to address offenses
involving ``Ice,'' and related issues for comment; and (ii) two options
for amending Sec. 2D1.1 to address the purity distinction between
methamphetamine in ``actual'' form and methamphetamine as part of a
mixture, and related issues for comment; (C) amendments to Sec. 2D1.1
to revise the enhancement for misrepresentation of fentanyl and
fentanyl analogue at subsection (b)(13), and related issues for
comment; (D) amendments to Sec. 2D1.1 to address the application of
subsection (b)(1) to machineguns, and a related issue for comment; and
(E) amendments to the Commentary to Sec. 5C1.2 (Limitation on
Applicability of Statutory Minimum Sentences in Certain Cases) to
address the manner by which a defendant may satisfy Sec. 5C1.2(a)(5)'s
requirement of providing truthful information and
[[Page 8969]]
evidence to the Government, and a related issue for comment.
In addition, the Commission requests public comment regarding
whether, pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any
proposed amendment published in this notice should be included in
subsection (d) of Sec. 1B1.10 (Reduction in Term of Imprisonment as a
Result of Amended Guideline Range (Policy Statement)) as an amendment
that may be applied retroactively to previously sentenced defendants.
The Commission lists in Sec. 1B1.10(d) the specific guideline
amendments that the court may apply retroactively under 18 U.S.C.
3582(c)(2). The Background Commentary to Sec. 1B1.10 lists the purpose
of the amendment, the magnitude of the change in the guideline range
made by the amendment, and the difficulty of applying the amendment
retroactively to determine an amended guideline range under Sec.
1B1.10(b) as among the factors the Commission considers in selecting
the amendments included in Sec. 1B1.10(d). To the extent practicable,
public comment should address each of these factors.
The text of the proposed amendments and related issues for comment
are set forth below. Additional information pertaining to the proposed
amendments and issues for comment described in this notice may be
accessed through the Commission's website at www.ussc.gov. In addition,
as required by 5 U.S.C. 553(b)(4), plain-language summaries of the
proposed amendments are available at https://www.ussc.gov/guidelines/amendments/proposed-2025-amendments-federal-sentencing-guidelines-published-january-2025.
Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice
and Procedure 2.2, 4.3, 4.4.
Carlton W. Reeves,
Chair.
Proposed Amendments to the Sentencing Guidelines, Policy Statements,
and Official Commentary
1. Supervised Release
Synopsis of Proposed Amendment: The Sentencing Reform Act of 1984
establishes a framework for courts to order supervised release to be
served after a term of imprisonment. See 18 U.S.C. 3583. For certain
offenses, the court is statutorily required to impose a term of
supervised release. See id. This framework aims to ``assure that
[those] who will need post-release supervision will receive it'' while
``prevent[ing] probation system resources from being wasted on
supervisory services for releasees who do not need them.'' See S. Rep.
No. 225, 98th Cong., 1st Sess. 54 (1983); see also Johnson v. United
States, 529 U.S. 694, 701 (2000) (``Supervised release departed from
the parole system it replaced by giving district courts the freedom to
provide postrelease supervision for those, and only those, who needed
it.'').
The length of the term of supervised release that a court may
select depends on the class of the offense of conviction. The term may
be not more than five years for a Class A or Class B felony, not more
than three years for a Class C or Class D felony, and not more than one
year for a Class E felony or a misdemeanor (other than a petty
offense). See 18 U.S.C. 3583(b). There is an exception for certain sex
offenses and terrorism offenses, for which the term of supervised
release may be up to life. See 18 U.S.C. 3583(j) and (k).
If a court imposes a term of supervised release, the court must
order certain conditions of supervised release, such as that the
defendant not commit another crime or unlawfully possess a controlled
substance during the term, and that the defendant make restitution. See
18 U.S.C. 3583(d). The court may order other discretionary conditions
it considers appropriate, as long as the condition meets certain
criteria. See id. In determining whether to impose a term of supervised
release and the length of the term and conditions of supervised
release, the court must consider certain 18 U.S.C. 3553 factors. See 18
U.S.C. 3583(c).
Courts are authorized, under certain conditions, to extend or
terminate a term of supervised release, or modify, enlarge, or reduce
the conditions thereof. See 18 U.S.C. 3583(f). Before doing so, the
court must consider the 18 U.S.C. 3553 factors listed above. See id.
For certain violations, courts are required to revoke supervised
release. See 18 U.S.C. 3583(g).
The Sentencing Commission's policies regarding supervised release
are included in Part D (Supervised Release) of Chapter Five
(Determining the Sentence) and Part B (Probation and Supervised Release
Violations) of Chapter Seven (Probation and Supervised Release
Violations) of the Guidelines Manual. This proposed amendment contains
two parts revising those policies:
Part A would amend Part D of Chapter Five, which addresses the
imposition of a term of supervised release. Issues for comment are also
provided.
Part B would amend Chapter Seven, which addresses the procedures
for handling a violation of the terms of probation and supervised
release. Issues for comment are also provided.
The Commission is considering whether to implement one or both
parts, as they are not mutually exclusive.
(A) Imposition of a Term of Supervised Release
Synopsis of Proposed Amendment: Chapter Five, Part D (Supervised
Release) of the Guidelines Manual covers supervised release, including
the imposition decision itself, the length of a term of supervised
release, and the conditions of supervised release.
Section 5D1.1 (Imposition of a Term of Supervised Release) governs
the imposition of a term of supervised release. Under Sec. 5D1.1(a), a
court shall order a term of supervised release (1) when it is required
by statute or (2) when a sentence of more than one year is imposed. In
any other case, Sec. 5D1.1(b) treats the decision to impose a term of
supervised release as discretionary. The commentary to Sec. 5D1.1
describes the factors to consider in determining whether to impose a
term of supervised release: (1) certain 18 U.S.C. 3553 factors, which
the court is statutorily required to consider (see 18 U.S.C. 3583(c));
(2) an individual's criminal history; (3) whether an individual is an
abuser of controlled substances or alcohol; and (4) whether an offense
involved domestic violence or stalking. USSG Sec. 5D1.1 comment.
(n.3).
Section 5D1.1(c) provides an exception to the rule in Sec.
5D1.1(a), directing that ``[t]he court ordinarily should not impose a
term of supervised release in a case in which supervised release is not
required by statute and the defendant is a deportable alien who likely
will be deported after imprisonment.'' However, Application Note 5
directs that a court should consider imposing a term of supervised
release if ``it would provide an added measure of deterrence and
protection based on the facts and circumstances of a particular case.''
Section 5D1.2 (Term of Supervised Release) governs the length of a
term of supervised release. First, Sec. 5D1.2(a) sets forth the
recommended terms of supervised release for each classification of
offense: (1) two to five years for an individual convicted of a Class A
or B felony; (2) one to three years for an individual convicted of a
Class C or D felony; and (3) one year for an individual convicted of a
Class E felony or a Class A misdemeanor. Second, for offenses involving
terrorism or a sex offense, Sec. 5D1.2(b) provides for a term of
supervised release up to life, and a policy statement further directs
that for a sex offense, as defined in Application Note 1, the statutory
maximum term of supervised release is
[[Page 8970]]
recommended. Lastly, Sec. 5D1.2(c) instructs that the term of
supervised release shall not be less than any statutorily required term
of supervised release.
The Commentary to Sec. 5D1.2 provides further guidance for setting
a term of supervised release. Application Note 4 directs that the
factors to be considered in selecting the length of a term of
supervised release are the same as those for determining whether to
impose such a term. Application Note 5 states that courts have
``authority to terminate or extend a term of supervised release'' and
encourages courts to ``exercise this authority in appropriate cases.''
Section 5D1.3 (Conditions of Supervised Release) sets forth the
mandatory, ``standard,'' ``special,'' and additional conditions of
supervised release. It provides a framework for courts to use when
imposing the standard, special, and additional conditions--those
considered ``discretionary.''
The Commission has received feedback from commenters that the
guidelines should provide courts with greater discretion to make
determinations regarding the imposition of supervised release that are
based on an individualized assessment of the defendant. Additionally, a
bipartisan coalition in Congress has sought to address similar
concerns. See, e.g., Safer Supervision Act of 2023, S.2681, 118th Cong.
(2023) and H.R. 5005, 118th Cong. (1st Sess. 2023).
Part A of the proposed amendment seeks to revise Chapter Five, Part
D to accomplish two goals. The first is to provide courts greater
discretion to impose a term of supervised release in the manner it
determines is most appropriate based on an individualized assessment of
the defendant. The second is to ensure the provisions in Chapter Five
``fulfill[] rehabilitative ends, distinct from those of
incarceration.'' United States v. Johnson, 529 U.S. 53, 59 (2000).
Part A of the proposed amendment would make a number of changes to
the supervised release provisions in Chapters Five to serve these
goals.
First, Part A of the proposed amendment would add introductory
commentary to Part D of Chapter Five expressing the Commission's view
that, when making determinations regarding supervised release, courts
should assess a wide range of factors to ensure its decisions fulfill
the rehabilitative needs of the defendant and protect the public from
further crimes of the defendant.
Second, Part A of the proposed amendment would amend the provisions
of Sec. 5D1.1 addressing the imposition of a term of supervised
release. It would remove the requirement that a court impose a term of
supervised release when a sentence of imprisonment of more than one
year is imposed, so a court would be required to impose supervised
release only when required by statute. For cases in which the decision
whether to impose supervised release is discretionary, the court may
order a term of supervised release when warranted by an individualized
assessment of the need for supervision. Additionally, the court should
state the reason for its decision on the record.
Third, Part A of the proposed amendment would amend Sec. 5D1.2,
which addresses the length of the term of supervised release. The
proposed amendment would remove the provisions requiring a minimum term
of supervised release of two years for a Class A or B felony and one
year for a Class C, D, or E felony or Class A misdemeanor. Instead,
Part A of the proposed amendment would require the court to conduct an
individualized assessment to determine the length of the term of
supervised release, which must not exceed the maximum term allowed by
statute. It would remove the policy statement recommending a supervised
release term of life for sex offense cases and add a policy statement
that the court should state on the record its reasons for selecting the
length of the term of supervised release.
Fourth, Part A of the proposed amendment would amend Sec. 5D1.3,
which addresses the conditions of supervised release. It would add a
provision stating that courts should conduct an individualized
assessment to determine what discretionary conditions are warranted. It
brackets the possibility of redesignating ``standard'' conditions as
``examples of common conditions'' and brackets either that such
conditions may be warranted in some appropriate cases or may be
modified, omitted, or expanded in appropriate cases. It would also add
an example of a ``special'' condition that would require a defendant
who has not obtained a high school or equivalent diploma to participate
in a program to obtain such a diploma.
Finally, Part A of the proposed amendment would add a new policy
statement at Sec. 5D1.4 (Modification, Early Termination, and
Extension of Supervised Release (Policy Statement)) addressing a
court's authority to extend or terminate a term of supervised release
or modify the conditions thereof. It would encourage a court, as soon
as practicable after a defendant's release from imprisonment, to
conduct an individualized assessment to determine whether it is
warranted to modify, reduce, or enlarge the conditions of supervised
release. Additionally, any time after the expiration of one year of
supervised release, it would encourage a court to terminate the
remaining term of supervision and discharge the defendant if the court
determines, following consultation with the government and the
probation officer, that the termination is warranted by the conduct of
the defendant and the interest of justice. Part A of the proposed
amendment provides an option to list factors for a court to consider
when determining whether to terminate supervised release. It would also
provide that a court, any time before the expiration of a term of
supervised release, may extend the term in a case in which the maximum
term was not imposed.
Conforming changes are also made to Sec. 1B1.10 (Reduction in Term
of Imprisonment as a Result of Amended Guideline Range (Policy
Statement)), the Commentary to Sec. 4B1.5 (Repeat and Dangerous Sex
Offenders Against Minors), Sec. 5B1.3 (Conditions of Probation), Sec.
5H1.3 (Mental and Emotional Conditions (Policy Statement)), and Sec.
5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or
Abuse; Gambling Addiction (Policy Statement)).
Issues for comment are also provided.
Proposed Amendment
Chapter Five, Part D is amended by inserting at the beginning the
following new Introductory Commentary:
``Introductory Commentary
The Sentencing Reform Act of 1984 requires the court to assess a
wide range of factors `in determining whether to include a term of
supervised release, and, if a term of supervised release is to be
included, in determining the length of the term and the conditions of
supervised release.' 18 U.S.C. 3583(c). These determinations aim to
make the imposition and scope of supervised release `dependent on the
needs of the defendant for supervision.' See S. Rep. No. 225, 98th
Cong., 1st Sess. 124 (1983). In conducting such an individualized
assessment, the court can `assure that [those] who will need post-
release supervision will receive it' while `prevent[ing] probation
system resources from being wasted on supervisory services for
releasees who do not need them.' Id. at 54; see also Johnson v. United
States, 529 U.S. 694, 701 (2000) (`Supervised release departed from the
parole system it replaced by giving district courts the freedom to
[[Page 8971]]
provide postrelease supervision for those, and only those, who needed
it. . . . Congress aimed, then, to use the district courts'
discretionary judgment to allocate supervision to those releasees who
needed it most.'). Supervised release `fulfills rehabilitative ends,
distinct from those served by incarceration,' United States v. Johnson,
529 U.S. 53, 59 (2000). Accordingly, a court should consider whether
the defendant needs supervision in order to ease transition into the
community or to provide further rehabilitation and whether supervision
will promote public safety. See 18 U.S.C. 3583(c), 3553(a)(2)(C)); see
also S. Rep. No. 225, 98th Cong., 1st Sess. 124 (1983) (indicating that
a `primary goal of [a term of supervised release] is to ease the
defendant's transition into the community after the service of a long
prison term for a particularly serious offense, or to provide
rehabilitation to a defendant who has spent a fairly short period in
prison for punishment or other purposes but still needs supervision and
training programs after release').''.
Section 5D1.1 is amended--
by striking subsections (a) and (b) as follows:
``(a) The court shall order a term of supervised release to follow
imprisonment--
(1) when required by statute (see 18 U.S.C. 3583(a)); or
(2) except as provided in subsection (c), when a sentence of
imprisonment of more than one year is imposed.
(b) The court may order a term of supervised release to follow
imprisonment in any other case. See 18 U.S.C. 3583(a).'';
and inserting the following new subsections (a) and (b):
``(a) The court shall order a term of supervised release to follow
imprisonment when required by statute (see 18 U.S.C. 3583(a)).
(b) When a term of supervised release is not required by statute,
the court should order a term of supervised release to follow
imprisonment when, and only when, warranted by an individualized
assessment of the need for supervision.'';
and by inserting at the end the following new subsection (d):
``(d) The court should state on the record the reasons for imposing
[or not imposing] a term of supervised release.''.
The Commentary to Sec. 5D1.1 captioned ``Application Notes'' is
amended--
by striking Notes 1, 2, and 3 as follows:
``1. Application of Subsection (a).--Under subsection (a), the
court is required to impose a term of supervised release to follow
imprisonment when supervised release is required by statute or, except
as provided in subsection (c), when a sentence of imprisonment of more
than one year is imposed. The court may depart from this guideline and
not impose a term of supervised release if supervised release is not
required by statute and the court determines, after considering the
factors set forth in Note 3, that supervised release is not necessary.
2. Application of Subsection (b).--Under subsection (b), the court
may impose a term of supervised release to follow a term of
imprisonment in any other case, after considering the factors set forth
in Note 3.
3. Factors to Be Considered.--
(A) Statutory Factors.--In determining whether to impose a term of
supervised release, the court is required by statute to consider, among
other factors:
(i) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(ii) the need to afford adequate deterrence to criminal conduct, to
protect the public from further crimes of the defendant, and to provide
the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner;
(iii) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and
(iv) the need to provide restitution to any victims of the offense.
See 18 U.S.C. 3583(c).
(B) Criminal History.--The court should give particular
consideration to the defendant's criminal history (which is one aspect
of the `history and characteristics of the defendant' in subparagraph
(A)(i), above). In general, the more serious the defendant's criminal
history, the greater the need for supervised release.
(C) Substance Abuse.--In a case in which a defendant sentenced to
imprisonment is an abuser of controlled substances or alcohol, it is
highly recommended that a term of supervised release also be imposed.
See Sec. 5H1.4 (Physical Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling Addiction).
(D) Domestic Violence.--If the defendant is convicted for the first
time of a domestic violence crime as defined in 18 U.S.C. 3561(b), a
term of supervised release is required by statute. See 18 U.S.C.
3583(a). Such a defendant is also required by statute to attend an
approved rehabilitation program, if available within a 50-mile radius
of the legal residence of the defendant. See 18 U.S.C. 3583(d); Sec.
5D1.3(a)(3). In any other case involving domestic violence or stalking
in which the defendant is sentenced to imprisonment, it is highly
recommended that a term of supervised release also be imposed.'';
by redesignating Notes 4 and 5 as Notes 5 and 6, respectively;
and by inserting at the beginning the following new Notes 1, 2, 3,
and 4:
``1. Individualized Assessment.--The statutory framework of
supervised release aims to `assure that [those] who will need post-
release supervision will receive it' while `prevent[ing] probation
system resources from being wasted on supervisory services for
releasees who do not need them.' See S. Rep. No. 225, 98th Cong., 1st
Sess. 54 (1983). To that end, 18 U.S.C. 3583(c) requires the court to,
`in determining whether to include a term of supervised release, and,
if a term of supervised release is to be included, in determining the
length of the term and the conditions of supervised release,' consider
the following:
(A) the nature and circumstances of the offense and the history and
characteristics of the defendant (18 U.S.C. 3553(a)(1));
(B) the need to afford adequate deterrence to criminal conduct, to
protect the public from further crimes of the defendant, and to provide
the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner (18
U.S.C. 3553(a)(2)(B)-(D));
(C) the kinds of sentence and the sentencing range established for
the applicable category of offense committed by the applicable category
of defendant as set forth in the guidelines (18 U.S.C. 3553(a)(4));
(D) any pertinent policy statement issued by the Sentencing
Commission (18 U.S.C. 3553(a)(5));
(E) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct (18 U.S.C. 3553(a)(6)); and
(F) the need to provide restitution to any victims of the offense
(18 U.S.C. 3553(a)(7)).
See 18 U.S.C. 3583(c).
2. Criminal History.--The court should give particular
consideration to the defendant's criminal history (which is one aspect
of the `history and characteristics of the defendant' in Application
Note 1(A) above). In general, the more serious the defendant's criminal
history, the greater the need for supervised release.
[[Page 8972]]
3. Substance Abuse.--In a case in which a defendant sentenced to
imprisonment is an abuser of controlled substances or alcohol, it is
highly recommended that a term of supervised release also be imposed.
See Sec. 5H1.4 (Physical Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling Addiction).
4. Domestic Violence.--If the defendant is convicted for the first
time of a domestic violence crime as defined in 18 U.S.C. 3561(b), a
term of supervised release is required by statute. See 18 U.S.C.
3583(a). Such a defendant is also required by statute to attend an
approved rehabilitation program, if available within a 50-mile radius
of the legal residence of the defendant. See 18 U.S.C. 3583(d); Sec.
5D1.3(a)(3). In any other case involving domestic violence or stalking
in which the defendant is sentenced to imprisonment, it is highly
recommended that a term of supervised release also be imposed.''.
Section 5D1.2 is amended--
by striking subsections (a) and (b) as follows:
``(a) Except as provided in subsections (b) and (c), if a term of
supervised release is ordered, the length of the term shall be:
(1) At least two years but not more than five years for a defendant
convicted of a Class A or B felony. See 18 U.S.C. 3583(b)(1).
(2) At least one year but not more than three years for a defendant
convicted of a Class C or D felony. See 18 U.S.C. 3583(b)(2).
(3) One year for a defendant convicted of a Class E felony or a
Class A misdemeanor. See 18 U.S.C. 3583(b)(3).
(b) Notwithstanding subdivisions (a)(1) through (3), the length of
the term of supervised release shall be not less than the minimum term
of years specified for the offense under subdivisions (a)(1) through
(3) and may be up to life, if the offense is--
(1) any offense listed in 18 U.S.C. 2332b(g)(5)(B), the commission
of which resulted in, or created a foreseeable risk of, death or
serious bodily injury to another person; or
(2) a sex offense.
(Policy Statement) If the instant offense of conviction is a sex
offense, however, the statutory maximum term of supervised release is
recommended.'';
by inserting at the beginning the following new subsection (a):
``(a) If a term of supervised release is ordered, the court shall
conduct an individualized assessment to determine the length of the
term, not to exceed the relevant statutory maximum term.'';
by redesignating subsection (c) as subsection (b);
and by inserting at the end the following new subsection (c):
``(c) The court should state on the record the reasons for the
length of the term imposed.''.
The Commentary to Sec. 5D1.2 captioned ``Application Notes'' is
amended--
by striking Note 1 as follows:
``1. Definitions.--For purposes of this guideline:
`Sex offense' means (A) an offense, perpetrated against a minor,
under (i) chapter 109A of title 18, United States Code; (ii) chapter
110 of such title, not including a recordkeeping offense; (iii) chapter
117 of such title, not including transmitting information about a minor
or filing a factual statement about an alien individual; (iv) an
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591;
or (B) an attempt or a conspiracy to commit any offense described in
subdivisions (A)(i) through (v) of this note. Such term does not
include an offense under 18 U.S.C. 2250 (Failure to register).
`Minor' means (A) an individual who had not attained the age of 18
years; (B) an individual, whether fictitious or not, who a law
enforcement officer represented to a participant (i) had not attained
the age of 18 years; and (ii) could be provided for the purposes of
engaging in sexually explicit conduct; or (C) an undercover law
enforcement officer who represented to a participant that the officer
had not attained the age of 18 years.'';
by redesignating Notes 2, 3, and 4 as Notes 1, 2, and 3,
respectively;
in Note 1 (as so redesignated) by striking ``shall be'' and
inserting ``is'';
in Note 2 (as so redesignated) by striking ``or the guidelines'';
in Note 3 (as so redesignated) by striking ``Factors Considered.--
The factors to be considered in determining the length of a term of
supervised release'' and inserting ``Individualized Assessment.--When
conducting an individualized assessment to determine the length of a
term of supervised release, the factors to be considered''; by striking
``Application Note 3'' and inserting ``Application Note 1''; and by
striking ``long enough'' and inserting ``sufficient'';
by striking Notes 5 and 6 as follows:
``5. Early Termination and Extension.--The court has authority to
terminate or extend a term of supervised release. See 18 U.S.C.
3583(e)(1), (2). The court is encouraged to exercise this authority in
appropriate cases. The prospect of exercising this authority is a
factor the court may wish to consider in determining the length of a
term of supervised release. For example, the court may wish to consider
early termination of supervised release if the defendant is an abuser
of narcotics, other controlled substances, or alcohol who, while on
supervised release, successfully completes a treatment program, thereby
reducing the risk to the public from further crimes of the defendant.
6. Application of Subsection (c).--Subsection (c) specifies how a
statutorily required minimum term of supervised release may affect the
minimum term of supervised release provided by the guidelines.
For example, if subsection (a) provides a range of two years to
five years, but the relevant statute requires a minimum term of
supervised release of three years and a maximum term of life, the term
of supervised release provided by the guidelines is restricted by
subsection (c) to three years to five years. Similarly, if subsection
(a) provides a range of two years to five years, but the relevant
statute requires a minimum term of supervised release of five years and
a maximum term of life, the term of supervised release provided by the
guidelines is five years.
The following example illustrates the interaction of subsections
(a) and (c) when subsection (b) is also involved. In this example,
subsection (a) provides a range of two years to five years; the
relevant statute requires a minimum term of supervised release of five
years and a maximum term of life; and the offense is a sex offense
under subsection (b). The effect of subsection (b) is to raise the
maximum term of supervised release from five years (as provided by
subsection (a)) to life, yielding a range of two years to life. The
term of supervised release provided by the guidelines is then
restricted by subsection (c) to five years to life. In this example, a
term of supervised release of more than five years would be a guideline
sentence. In addition, subsection (b) contains a policy statement
recommending that the maximum--a life term of supervised release--be
imposed.'';
and by inserting at the end the following new Note 4:
``4. Early Termination and Extension.--The court has authority to
terminate or extend a term of supervised release. See 18 U.S.C.
3583(e)(1), (2); Sec. 5D1.4 (Modification, Early Termination, and
Extension of Supervised Release (Policy Statement)).''.
The Commentary to Sec. 5D1.2 is amended by striking the Commentary
captioned ``Background'' in its entirety as follows:
``Background: This section specifies the length of a term of
supervised
[[Page 8973]]
release that is to be imposed. Subsection (c) applies to statutes, such
as the Anti-Drug Abuse Act of 1986, that require imposition of a
specific minimum term of supervised release.''.
Section 5D1.3 is amended--
by striking subsections (b), (c), and (d) as follows:
``(b) Discretionary Conditions
The court may impose other conditions of supervised release to the
extent that such conditions (1) are reasonably related to (A) the
nature and circumstances of the offense and the history and
characteristics of the defendant; (B) the need for the sentence imposed
to afford adequate deterrence to criminal conduct; (C) the need to
protect the public from further crimes of the defendant; and (D) the
need to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner; and (2) involve no greater deprivation of liberty
than is reasonably necessary for the purposes set forth above and are
consistent with any pertinent policy statements issued by the
Sentencing Commission.
(c) `Standard' Conditions (Policy Statement)
The following `standard' conditions are recommended for supervised
release. Several of the conditions are expansions of the conditions
required by statute:
(1) The defendant shall report to the probation office in the
federal judicial district where he or she is authorized to reside
within 72 hours of release from imprisonment, unless the probation
officer instructs the defendant to report to a different probation
office or within a different time frame.
(2) After initially reporting to the probation office, the
defendant will receive instructions from the court or the probation
officer about how and when to report to the probation officer, and the
defendant shall report to the probation officer as instructed.
(3) The defendant shall not knowingly leave the federal judicial
district where he or she is authorized to reside without first getting
permission from the court or the probation officer.
(4) The defendant shall answer truthfully the questions asked by
the probation officer.
(5) The defendant shall live at a place approved by the probation
officer. If the defendant plans to change where he or she lives or
anything about his or her living arrangements (such as the people the
defendant lives with), the defendant shall notify the probation officer
at least 10 days before the change. If notifying the probation officer
at least 10 days in advance is not possible due to unanticipated
circumstances, the defendant shall notify the probation officer within
72 hours of becoming aware of a change or expected change.
(6) The defendant shall allow the probation officer to visit the
defendant at any time at his or her home or elsewhere, and the
defendant shall permit the probation officer to take any items
prohibited by the conditions of the defendant's supervision that he or
she observes in plain view.
(7) The defendant shall work full time (at least 30 hours per week)
at a lawful type of employment, unless the probation officer excuses
the defendant from doing so. If the defendant does not have full-time
employment he or she shall try to find full-time employment, unless the
probation officer excuses the defendant from doing so. If the defendant
plans to change where the defendant works or anything about his or her
work (such as the position or the job responsibilities), the defendant
shall notify the probation officer at least 10 days before the change.
If notifying the probation officer in advance is not possible due to
unanticipated circumstances, the defendant shall notify the probation
officer within 72 hours of becoming aware of a change or expected
change.
(8) The defendant shall not communicate or interact with someone
the defendant knows is engaged in criminal activity. If the defendant
knows someone has been convicted of a felony, the defendant shall not
knowingly communicate or interact with that person without first
getting the permission of the probation officer.
(9) If the defendant is arrested or questioned by a law enforcement
officer, the defendant shall notify the probation officer within 72
hours.
(10) The defendant shall not own, possess, or have access to a
firearm, ammunition, destructive device, or dangerous weapon (i.e.,
anything that was designed, or was modified for, the specific purpose
of causing bodily injury or death to another person, such as nunchakus
or tasers).
(11) The defendant shall not act or make any agreement with a law
enforcement agency to act as a confidential human source or informant
without first getting the permission of the court.
(12) If the probation officer determines that the defendant poses a
risk to another person (including an organization), the probation
officer may require the defendant to notify the person about the risk
and the defendant shall comply with that instruction. The probation
officer may contact the person and confirm that the defendant has
notified the person about the risk.
(13) The defendant shall follow the instructions of the probation
officer related to the conditions of supervision.
(d) `Special' Conditions (Policy Statement)
The following `special' conditions of supervised release are
recommended in the circumstances described and, in addition, may
otherwise be appropriate in particular cases:
(1) Support of Dependents
(A) If the defendant has one or more dependents--a condition
specifying that the defendant shall support his or her dependents.
(B) If the defendant is ordered by the government to make child
support payments or to make payments to support a person caring for a
child--a condition specifying that the defendant shall make the
payments and comply with the other terms of the order.
(2) Debt Obligations
If an installment schedule of payment of restitution or a fine is
imposed--a condition prohibiting the defendant from incurring new
credit charges or opening additional lines of credit without approval
of the probation officer unless the defendant is in compliance with the
payment schedule.
(3) Access to Financial Information
If the court imposes an order of restitution, forfeiture, or notice
to victims, or orders the defendant to pay a fine--a condition
requiring the defendant to provide the probation officer access to any
requested financial information.
(4) Substance Abuse
If the court has reason to believe that the defendant is an abuser
of narcotics, other controlled substances or alcohol--(A) a condition
requiring the defendant to participate in a program approved by the
United States Probation Office for substance abuse, which program may
include testing to determine whether the defendant has reverted to the
use of drugs or alcohol; and (B) a condition specifying that the
defendant shall not use or possess alcohol.
(5) Mental Health Program Participation
If the court has reason to believe that the defendant is in need of
psychological or psychiatric treatment--a condition requiring that the
defendant participate in a mental health program approved by the United
States Probation Office.
(6) Deportation
If (A) the defendant and the United States entered into a
stipulation of deportation pursuant to section 238(c)(5) of the
Immigration and Nationality Act (8 U.S.C. 1228(c)(5)*); or
[[Page 8974]]
(B) in the absence of a stipulation of deportation, if, after notice
and hearing pursuant to such section, the Attorney General demonstrates
by clear and convincing evidence that the alien is deportable--a
condition ordering deportation by a United States district court or a
United States magistrate judge.
* So in original. Probably should be 8 U.S.C. 1228(d)(5).
(7) Sex Offenses
If the instant offense of conviction is a sex offense, as defined
in Application Note 1 of the Commentary to Sec. 5D1.2 (Term of
Supervised Release)--
(A) A condition requiring the defendant to participate in a program
approved by the United States Probation Office for the treatment and
monitoring of sex offenders.
(B) A condition limiting the use of a computer or an interactive
computer service in cases in which the defendant used such items.
(C) A condition requiring the defendant to submit to a search, at
any time, with or without a warrant, and by any law enforcement or
probation officer, of the defendant's person and any property, house,
residence, vehicle, papers, computer, other electronic communication or
data storage devices or media, and effects upon reasonable suspicion
concerning a violation of a condition of supervised release or unlawful
conduct by the defendant, or by any probation officer in the lawful
discharge of the officer's supervision functions.
(8) Unpaid Restitution, Fines, or Special Assessments
If the defendant has any unpaid amount of restitution, fines, or
special assessments, the defendant shall notify the probation officer
of any material change in the defendant's economic circumstances that
might affect the defendant's ability to pay.
(e) Additional Conditions (Policy Statement)
The following `special conditions' may be appropriate on a case-by-
case basis:
(1) Community Confinement
Residence in a community treatment center, halfway house or similar
facility may be imposed as a condition of supervised release. See Sec.
5F1.1 (Community Confinement).
(2) Home Detention
Home detention may be imposed as a condition of supervised release,
but only as a substitute for imprisonment. See Sec. 5F1.2 (Home
Detention).
(3) Community Service
Community service may be imposed as a condition of supervised
release. See Sec. 5F1.3 (Community Service).
(4) Occupational Restrictions
Occupational restrictions may be imposed as a condition of
supervised release. See Sec. 5F1.5 (Occupational Restrictions).
(5) Curfew
A condition imposing a curfew may be imposed if the court concludes
that restricting the defendant to his place of residence during evening
and nighttime hours is necessary to protect the public from crimes that
the defendant might commit during those hours, or to assist in the
rehabilitation of the defendant. Electronic monitoring may be used as a
means of surveillance to ensure compliance with a curfew order.
(6) Intermittent Confinement
Intermittent confinement (custody for intervals of time) may be
ordered as a condition of supervised release during the first year of
supervised release, but only for a violation of a condition of
supervised release in accordance with 18 U.S.C. 3583(e)(2) and only
when facilities are available. See Sec. 5F1.8 (Intermittent
Confinement).'';
and inserting the following new subsection (b):
``(b) Discretionary Conditions
(1) In General.--The court should conduct an individualized
assessment to determine what, if any, other conditions of supervised
release are warranted.
Such conditions are warranted to the extent that they (A) are
reasonably related to (i) the nature and circumstances of the offense
and the history and characteristics of the defendant; (ii) the need for
the sentence imposed to afford adequate deterrence to criminal conduct;
(iii) the need to protect the public from further crimes of the
defendant; and (iv) the need to provide the defendant with needed
educational or vocational training, medical care, or other correctional
treatment in the most effective manner; and (B) involve no greater
deprivation of liberty than is reasonably necessary for the purposes
set forth above and are consistent with any pertinent policy statements
issued by the Sentencing Commission. See 18 U.S.C. 3583(d).
(2) [`Standard'][Examples of Common] Conditions (Policy Statement)
The following are [`standard' conditions of supervised release,
which the court may modify, expand, or omit in appropriate cases]
[examples of common conditions of supervised release that may be
warranted in appropriate cases][. Several of the conditions are
expansions of the conditions required by statute]:
(A) The defendant shall report to the probation office in the
federal judicial district where he or she is authorized to reside
within 72 hours of release from imprisonment, unless the probation
officer instructs the defendant to report to a different probation
office or within a different time frame.
(B) After initially reporting to the probation office, the
defendant will receive instructions from the court or the probation
officer about how and when to report to the probation officer, and the
defendant shall report to the probation officer as instructed.
(C) The defendant shall not knowingly leave the federal judicial
district where he or she is authorized to reside without first getting
permission from the court or the probation officer.
(D) The defendant shall answer truthfully the questions asked by
the probation officer.
(E) The defendant shall live at a place approved by the probation
officer. If the defendant plans to change where he or she lives or
anything about his or her living arrangements (such as the people the
defendant lives with), the defendant shall notify the probation officer
at least 10 days before the change. If notifying the probation officer
at least 10 days in advance is not possible due to unanticipated
circumstances, the defendant shall notify the probation officer within
72 hours of becoming aware of a change or expected change.
(F) The defendant shall allow the probation officer to visit the
defendant at any time at his or her home or elsewhere, and the
defendant shall permit the probation officer to take any items
prohibited by the conditions of the defendant's supervision that he or
she observes in plain view.
(G) The defendant shall work full time (at least 30 hours per week)
at a lawful type of employment, unless the probation officer excuses
the defendant from doing so. If the defendant does not have full-time
employment he or she shall try to find full-time employment, unless the
probation officer excuses the defendant from doing so. If the defendant
plans to change where the defendant works or anything about his or her
work (such as the position or the job responsibilities), the defendant
shall notify the probation officer at least 10 days before the change.
If notifying the probation officer in advance is not possible due to
unanticipated circumstances, the defendant shall notify the probation
officer within 72 hours of becoming aware of a change or expected
change.
(H) The defendant shall not communicate or interact with someone
the defendant knows is engaged in criminal activity. If the defendant
knows someone has been convicted of a felony, the defendant shall not
[[Page 8975]]
knowingly communicate or interact with that person without first
getting the permission of the probation officer.
(I) If the defendant is arrested or questioned by a law enforcement
officer, the defendant shall notify the probation officer within 72
hours.
(J) The defendant shall not own, possess, or have access to a
firearm, ammunition, destructive device, or dangerous weapon (i.e.,
anything that was designed, or was modified for, the specific purpose
of causing bodily injury or death to another person, such as nunchakus
or tasers).
(K) The defendant shall not act or make any agreement with a law
enforcement agency to act as a confidential human source or informant
without first getting the permission of the court.
(L) If the probation officer determines that the defendant poses a
risk to another person (including an organization), the probation
officer may require the defendant to notify the person about the risk
and the defendant shall comply with that instruction. The probation
officer may contact the person and confirm that the defendant has
notified the person about the risk.
(M) The defendant shall follow the instructions of the probation
officer related to the conditions of supervision.
(3) `Special' Conditions (Policy Statement)
One or more conditions from the following non-exhaustive list of
`special' conditions of supervised release may be appropriate in a
particular case, including in the circumstances described:
(A) Support of Dependents
(i) If the defendant has one or more dependents--a condition
specifying that the defendant shall support his or her dependents.
(ii) If the defendant is ordered by the government to make child
support payments or to make payments to support a person caring for a
child--a condition specifying that the defendant shall make the
payments and comply with the other terms of the order.
(B) Debt Obligations
If an installment schedule of payment of restitution or a fine is
imposed--a condition prohibiting the defendant from incurring new
credit charges or opening additional lines of credit without approval
of the probation officer unless the defendant is in compliance with the
payment schedule.
(C) Access to Financial Information
If the court imposes an order of restitution, forfeiture, or notice
to victims, or orders the defendant to pay a fine--a condition
requiring the defendant to provide the probation officer access to any
requested financial information.
(D) Substance Abuse
If the court has reason to believe that the defendant is an abuser
of narcotics, other controlled substances or alcohol--(i) a condition
requiring the defendant to participate in a program approved by the
United States Probation Office for substance abuse, which program may
include testing to determine whether the defendant has reverted to the
use of drugs or alcohol; and (ii) a condition specifying that the
defendant shall not use or possess alcohol.
(E) Mental Health Program Participation
If the court has reason to believe that the defendant is in need of
psychological or psychiatric treatment--a condition requiring that the
defendant participate in a mental health program approved by the United
States Probation Office.
(F) Deportation
If (i) the defendant and the United States entered into a
stipulation of deportation pursuant to section 238(c)(5) of the
Immigration and Nationality Act (8 U.S.C. 1228(c)(5)*); or (ii) in the
absence of a stipulation of deportation, if, after notice and hearing
pursuant to such section, the Attorney General demonstrates by clear
and convincing evidence that the alien is deportable--a condition
ordering deportation by a United States district court or a United
States magistrate judge.
* So in original. Probably should be 8 U.S.C. 1228(d)(5).
(G) Sex Offenses
If the instant offense of conviction is a sex offense--
(i) A condition requiring the defendant to participate in a program
approved by the United States Probation Office for the treatment and
monitoring of sex offenders.
(ii) A condition limiting the use of a computer or an interactive
computer service in cases in which the defendant used such items.
(iii) A condition requiring the defendant to submit to a search, at
any time, with or without a warrant, and by any law enforcement or
probation officer, of the defendant's person and any property, house,
residence, vehicle, papers, computer, other electronic communication or
data storage devices or media, and effects upon reasonable suspicion
concerning a violation of a condition of supervised release or unlawful
conduct by the defendant, or by any probation officer in the lawful
discharge of the officer's supervision functions.
(H) Unpaid Restitution, Fines, or Special Assessments
If the defendant has any unpaid amount of restitution, fines, or
special assessments, the defendant shall notify the probation officer
of any material change in the defendant's economic circumstances that
might affect the defendant's ability to pay.
(I) High School or Equivalent Diploma
If the defendant has not obtained a high school or equivalent
diploma, a condition requiring the defendant to participate in a
program to obtain such a diploma.
(J) Community Confinement
Residence in a community treatment center, halfway house or similar
facility may be imposed as a condition of supervised release. See Sec.
5F1.1 (Community Confinement).
(K) Home Detention
Home detention may be imposed as a condition of supervised release,
but only as a substitute for imprisonment. See Sec. 5F1.2 (Home
Detention).
(L) Community Service
Community service may be imposed as a condition of supervised
release. See Sec. 5F1.3 (Community Service).
(M) Occupational Restrictions
Occupational restrictions may be imposed as a condition of
supervised release. See Sec. 5F1.5 (Occupational Restrictions).
(N) Curfew
A condition imposing a curfew may be imposed if the court concludes
that restricting the defendant to his place of residence during evening
and nighttime hours is necessary to protect the public from crimes that
the defendant might commit during those hours, or to assist in the
rehabilitation of the defendant. Electronic monitoring may be used as a
means of surveillance to ensure compliance with a curfew order.
(O) Intermittent Confinement
Intermittent confinement (custody for intervals of time) may be
ordered as a condition of supervised release during the first year of
supervised release, but only for a violation of a condition of
supervised release in accordance with 18 U.S.C. 3583(e)(2) and only
when facilities are available. See Sec. 5F1.8 (Intermittent
Confinement).''.
The Commentary to Sec. 5D1.3 captioned ``Applications Notes'' is
amended--
in the caption by striking ``Note'' and inserting ``Notes'';
by redesignating Note 1 as Note 2;
by inserting at the beginning the following new Note 1:
``1. Individualized Assessment.--When conducting an individualized
assessment under this section, the court must consider the same factors
used to determine whether to impose a term of
[[Page 8976]]
supervised release, and shall impose conditions of supervision not
required by statute only to the extent such conditions meet the
requirements listed at 18 U.S.C. 3583(d). See 18 U.S.C. 3583(c), (d);
Application Note 1 to Sec. 5D1.1 (Imposition of a Term of Supervised
Release).'';
in Note 2 (as so redesignated) by striking ``(c)(4)'' both places
it appears and inserting ``(b)(2)(D)'';
and by inserting at the end the following new Note 3:
``3. Application of Subsection (b)(3)(G).--For purposes of
subsection (b)(3)(G):
`Sex offense' means (A) an offense, perpetrated against a minor,
under (i) chapter 109A of title 18, United States Code; (ii) chapter
110 of such title, not including a recordkeeping offense; (iii) chapter
117 of such title, not including transmitting information about a minor
or filing a factual statement about an alien individual; (iv) an
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591;
or (B) an attempt or a conspiracy to commit any offense described in
subdivisions (A)(i) through (v) of this note. Such term does not
include an offense under 18 U.S.C. 2250 (Failure to register).
`Minor' means (A) an individual who had not attained the age of 18
years; (B) an individual, whether fictitious or not, who a law
enforcement officer represented to a participant (i) had not attained
the age of 18 years; and (ii) could be provided for the purposes of
engaging in sexually explicit conduct; or (C) an undercover law
enforcement officer who represented to a participant that the officer
had not attained the age of 18 years.''.
Chapter Five, Part D is amended by inserting at the end the
following new Sec. 5D1.4:
``Sec. 5D1.4. Modification, Early Termination, and Extension of
Supervised Release (Policy Statement)
(a) Modification of Conditions.--At any time prior to the
expiration or termination of the term of supervised release, the court
[should][may] modify, reduce, or enlarge the conditions of supervised
release whenever warranted by an individualized assessment of the
appropriateness of existing conditions. See 18 U.S.C. 3583(e)(2). The
court is encouraged to conduct such an assessment as soon as
practicable after the defendant's release from imprisonment.
(b) Early Termination.--Any time after the expiration of one year
of supervised release and after an individualized assessment of the
need for ongoing supervision, the court [should][may] terminate the
remaining term of supervision and discharge the defendant if the court
determines, following consultation with the government and the
probation officer, that the termination is warranted by the conduct of
the defendant and the interest of justice. See 18 U.S.C. 3583(e)(1).
[In determining whether termination is warranted, the court should
consider the following non-exhaustive list of factors:
(1) any history of court-reported violations over the term of
supervision;
(2) the ability of the defendant to lawfully self-manage beyond the
period of supervision;
(3) the defendant's substantial compliance with all conditions of
supervision;
(4) the defendant's engagement in appropriate prosocial activities
and the existence or lack of prosocial support to remain lawful beyond
the period of supervision;
(5) a demonstrated reduction in risk level over the period of
supervision; and
(6) whether termination will jeopardize public safety, as evidenced
by the nature of the defendant's offense, the defendant's criminal
history, the defendant's record while incarcerated, the defendant's
efforts to reintegrate into the community and avoid recidivism, any
statements or information provided by the victims of the offense, and
other factors the court finds relevant.]
The court is encouraged to conduct such assessments upon the
expiration of one year of supervision and periodically throughout the
term of supervision thereafter.
(c) Extending a Term of Supervised Release.--The court may, at any
time prior to the expiration or termination of a term of supervised
release, extend the term of supervised release if less than the maximum
authorized term of supervised release was previously imposed and the
extension is warranted by an individualized assessment of the need for
further supervision. See 18 U.S.C. 3583(e)(2).
Commentary
Application Notes:
1. Individualized Assessment.--When making an individualized
assessment under this section, the factors to be considered are the
same factors used to determine whether to impose a term of supervised
release. See 18 U.S.C. 3583(c), (e); Application Note 1 to Sec. 5D1.1
(Imposition of a Term of Supervised Release). [In particular, the court
is encouraged to consider (A) the defendant's needs and risks and the
conditions of supervised release imposed at the original sentencing;
and (B) the defendant's conduct in custody, post-release circumstances,
and the availability of resources required for compliance with
conditions (e.g., the availability of treatment facilities).]
2. Extension or Modification of Conditions.--In a case involving an
extension of the term or a modification of the conditions of supervised
release, the court shall comply with Rule 32.1 (Revoking or Modifying
Probation or Supervised Release) of the Federal Rules of Criminal
Procedure and the provisions applicable to the initial setting of the
terms and conditions of post-release supervision. See 18 U.S.C.
3583(e)(2). In both situations, the Commission encourages the court to
make its best effort to ensure that any victim of the offense [and of
any violation of a condition of supervised release] is reasonably,
accurately, and timely notified, and provided, to the extent
practicable, with an opportunity to be reasonably heard, unless any
such victim previously requested not to be notified.
3. Application of Subsection (c).--Subsection (c) addresses a
court's authority to extend a term of supervised release. In some
cases, extending a term may be more appropriate than taking other
measures, such as revoking the supervised release. For example, if a
defendant violates a condition of supervised release, a court should
determine whether extending the term would be more appropriate than
revocation.''.
The Commentary to Sec. 1B1.10 captioned ``Application Notes'' is
amended in Note 8(B) by inserting after ``18 U.S.C. 3583(e)(1).'' the
following: ``See Sec. 5D1.4 (Modification, Early Termination, and
Extension of Supervised Release (Policy Statement)).''.
[The Commentary to Sec. 4B1.5 captioned ``Application Notes'' is
amended by striking Note 5 as follows:
``5. Treatment and Monitoring.--
(A) Recommended Maximum Term of Supervised Release.--The statutory
maximum term of supervised release is recommended for offenders
sentenced under this guideline.
(B) Recommended Conditions of Probation and Supervised Release.--
Treatment and monitoring are important tools for supervising offenders
and should be considered as special conditions of any term of probation
or supervised release that is imposed.''.]
[The Commentary to Sec. 4B1.5 captioned ``Application Notes'' is
amended in Note 5--
by striking the following:
``Treatment and Monitoring.--
[[Page 8977]]
(A) Recommended Maximum Term of Supervised Release.--The statutory
maximum term of supervised release is recommended for offenders
sentenced under this guideline.
(B) Recommended Conditions of Probation and Supervised Release.--
Treatment and monitoring are important tools for supervising offenders
and should be considered as special conditions of any term of probation
or supervised release that is imposed.'';
and by inserting the following:
``Treatment and Monitoring.--Treatment and monitoring are important
tools for supervising offenders and may be considered as special
conditions of any term of probation or supervised release that is
imposed.''.]
Section 5B1.3(d)(7) is amended by striking ``, as defined in
Application Note 1 of the Commentary to Sec. 5D1.2 (Term of Supervised
Release)''.
The Commentary to Sec. 5B1.3 captioned ``Application Note'' is
amended--
in the caption by striking ``Note'' and inserting ``Notes'';
and by inserting at the end the following new Note 2:
``2. Application of Subsection (d)(7).--For purposes of subsection
(d)(7):
`Sex offense' means (A) an offense, perpetrated against a minor,
under (i) chapter 109A of title 18, United States Code; (ii) chapter
110 of such title, not including a recordkeeping offense; (iii) chapter
117 of such title, not including transmitting information about a minor
or filing a factual statement about an alien individual; (iv) an
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591;
or (B) an attempt or a conspiracy to commit any offense described in
subdivisions (A)(i) through (v) of this note. Such term does not
include an offense under 18 U.S.C. 2250 (Failure to register).
`Minor' means (A) an individual who had not attained the age of 18
years; (B) an individual, whether fictitious or not, who a law
enforcement officer represented to a participant (i) had not attained
the age of 18 years; and (ii) could be provided for the purposes of
engaging in sexually explicit conduct; or (C) an undercover law
enforcement officer who represented to a participant that the officer
had not attained the age of 18 years.''.
Section 5H1.3 is amended in the paragraph that begins ``Mental and
emotional conditions may be relevant in determining the conditions'' by
striking ``5D1.3(d)(5)'' and inserting ``5D1.3(b)(3)(E)''.
Section 5H1.4 is amended in the paragraph that begins ``Drug or
alcohol dependence'' by striking ``Sec. 5D1.3(d)(4)'' and inserting
``Sec. 5D1.3(b)(3)(D)''.
Issues for Comment
1. The Commission has received feedback that courts should be
afforded more discretion to tailor their supervised release decisions
based on an individualized assessment of the defendant. At the same
time, the Commission has received feedback that courts and probation
officers would benefit from more guidance concerning the imposition,
length, and conditions of supervised release.
(A) Part A of the proposed amendment would add language throughout
Chapter Five, Part D (Supervised Release) directing courts that
supervised release decisions should be based on an ``individualized
assessment'' of the statutory factors listed in 18 U.S.C. 3583(c)-(e)
and remove recommended minimum terms of supervised release. The
Commission seeks comment on whether the inclusion of an individualized
assessment based on statutory factors is sufficient to provide both
discretion and useful guidance.
(B) Part A of the proposed amendment would maintain the Commentary
to Sec. 5D1.1 (Imposition of a Term of Supervised Release) that
directs courts to pay particular attention to a defendant's criminal or
substance abuse history. In addition, new proposed policy statement at
Sec. 5D1.4 (Modification, Early Termination, and Extension of
Supervised Release (Policy Statement)) includes as a bracketed option a
non-exhaustive list of factors that a court should consider in
determining whether early termination of supervised release is
warranted. The Commission seeks comment on whether such guidance should
be retained or deleted and whether similar guidance should be included
elsewhere. If the Commission provides further guidance, what should
that guidance be?
(C) Is there any other approach the Commission should consider to
provide courts with appropriate discretion while also including useful
guidance, either throughout Chapter Five, Part D, or for certain
guideline provisions?
2. Section 5D1.1(c) instructs that ``[t]he court ordinarily should
not impose a term of supervised release in a case in which supervised
release is not required by statute and the defendant is a deportable
alien who likely will be deported after imprisonment.'' The Commission
has received feedback that imposition of a term of supervised release
in such cases varies substantially by jurisdiction, may be excessive,
and may divert resources. Should the Commission amend Sec. 5D1.1(c) to
further discourage the imposition of supervised release for individuals
who are likely to be deported?
3. In Sec. 5D1.4, Part A of the proposed amendment provides an
option to include a non-exhaustive list of factors for courts to
consider when determining whether early termination is warranted. These
factors are drawn from the Post-Conviction Supervision Policies in the
Guide to Judiciary Policy (Vol. 8E, Ch. 3, Sec. 360.20, available at
https://www.uscourts.gov/file/78805/download) and the Safer Supervision
Act--a bipartisan bill introduced in the Senate and House of
Representatives in the 118th Congress that would have amended 18 U.S.C.
3583. See S. 2861, H.R. 5005. Are the listed factors appropriate?
Should the Commission omit or amend any of the listed factors, or
should it include other specific factors?
4. The First Step Act of 2018 (FSA), Public Law 115--391, allows
individuals in custody who successfully complete evidence-based
recidivism reduction programming or productive activities to earn time
credits. See 18 U.S.C. 3632(d)(4)(A). How those time credits are
applied may depend on whether the defendant's sentence includes a term
of supervised release. Specifically, the FSA provides ``[i]f the
sentencing court included as a part of the prisoner's sentence a
requirement that the prisoner be placed on a term of supervised release
after imprisonment pursuant to [18 U.S.C. 3583], the Director of the
Bureau of Prisons may transfer the prisoner to begin any such term of
supervised release at an earlier date, not to exceed 12 months, based
on the application of time credits under [18 U.S.C. 3632].'' 18 U.S.C.
3624(g)(3).
The Commission seeks comment on whether and how the changes to
supervised release set forth in Part A of the proposed amendment may
impact defendants' eligibility to benefit from the FSA earned time
credits. Should the Commission make any additional or different changes
to Chapter Five to avoid any unintended consequences that would impact
a defendant's eligibility? If so, what changes should be made?
5. At Sec. 5D1.3 (Conditions of Supervised Release), Part A of the
proposed amendment retains two general categories of discretionary
conditions of supervised release without amending their substance--
``standard'' and ``special'' conditions. In doing so, the Commission
brackets language that would alternatively refer to ``standard''
conditions as ``examples of common conditions that may be warranted in
appropriate cases.'' Part A of the proposed amendment also includes in
[[Page 8978]]
its listing of ``special'' conditions those conditions that currently
are labeled as ``Additional Conditions.'' The Commission seeks comment
on these proposals and on whether another approach is warranted.
6. Part A of the proposed amendment would establish a new policy
statement at Sec. 5D1.4 (Modification, Early Termination, and
Extension of Supervised Release (Policy Statement)), which, among other
things, addresses a court's determination whether to terminate a term
of supervised release. The Commission seeks comment on whether it
should provide that the completion of reentry programs (more
information available at https://www.ussc.gov/education/problem-solving-court-resources), such as the Supervision to Aid Reentry
Program in the Eastern District of Pennsylvania, should be considered
by a court when determining whether to terminate the supervision.
7. Furthermore, the Commission seeks comment on whether the new
policy statement at Sec. 5D1.4 should provide guidance to courts on
the appropriate procedures to employ when determining whether to
terminate a term of supervised release. For example, should the
Commission recommend that courts make the determination pursuant to a
full public proceeding, or is a more informal proceeding sufficient? In
either case, should the Commission encourage courts to appoint counsel
to represent the defendant? How might the Commission encourage courts
to ensure that any victim of the offense (or of any violation of a
condition of supervised release) is notified of the early termination
consideration and afforded a reasonable opportunity to be heard? Are
there other appropriate approaches the Commission should recommend?
(B) Revocation of Supervised Release
Synopsis of Proposed Amendment: Chapter Seven (Violations of
Probation and Supervised Release) of the Guidelines Manual addresses
violations of probation and supervised release by means of an
introductory framework and a series of policy statements. The
introduction to Chapter Seven, Part A (Introduction to Chapter Seven)
explains the framework the Guidelines Manual uses to address violations
of probation and supervised release. It describes the Commission's
resolution of several issues. First, the Commission decided in 1990 to
promulgate policy statements rather than guidelines because of the
flexibility of this option. See generally USSG Ch.7, Pt.A. Next,
``[a]fter lengthy consideration,'' the Commission adopted a ``breach of
trust'' framework for violations of supervised release; the alternative
option would have sanctioned individuals who committed new criminal
conduct by applying the offense guidelines in Chapters Two and Three to
the criminal conduct that formed the basis of the new violation, along
with a recalculated criminal history score. Id. Under this approach,
the ``sentence imposed upon revocation [is] intended to sanction the
violator for failing to abide by the conditions of the court-ordered
supervision, leaving the punishment for any new criminal conduct to the
court responsible for imposing the sentence for that offense.'' Id.
Finally, despite some debate, the Commission opted to ``develop a
single set of policy statements for revocation of both probation and
supervised release.'' Id. The Commission signaled that it intended
ultimately to issue ``revocation guidelines,'' but it has not done so.
Id.
Section 7B1.1 (Classification of Violations (Policy Statement))
governs the classification of violations of supervised release. Grade A
Violations consist of conduct constituting (A) a federal, state, or
local offense punishable by a term of imprisonment exceeding one year
that (i) is a crime of violence, (ii) is a controlled substance
offense, or (iii) involves possession of a firearm or destructive
device of a type described in 26 U.S.C. 5845(a); or (B) any other
federal, state, or local offense punishable by a term of imprisonment
exceeding twenty years. USSG Sec. 7B1.1(a)(1). Grade B Violations
involve conduct constituting any other federal, state, or local offense
punishable by a term of imprisonment exceeding on year. USSG Sec.
7B1.1(a)(2). Grade C Violations involve conduct constituting (A) a
federal, state, or local offense punishable by a term of imprisonment
of one year or less; or (B) a violation of any other condition of
supervision. USSG Sec. 7B1.1(a)(3). In cases with more than one
violation of the conditions of supervision, or a single violation with
conduct constituting more than one offense, the grade of the violation
is determined by the violation having the most serious grade. USSG
Sec. 7B1.1(b).
Section 7B1.2 (Reporting of Violations of Probation and Supervised
Release (Policy Statement)) concerns the reporting of violations of
supervised release to the court. In cases of Grade A or B violations,
Sec. 7B1.2(a) directs that the probation officer ``shall'' promptly
report them to the court. For Grade C violations, the probation officer
also ``shall'' promptly report them to the court unless the officer
determines that (1) the violation is minor and not part of a continuing
pattern, and (2) non-reporting will not present an undue risk to the
individual or the public or be inconsistent with any directive of the
court. USSG Sec. 7B1.2(b).
Section 7B1.3 (Revocation of Probation or Supervised Release
(Policy Statement)) governs a court's options when it finds that a
violation of the terms of supervised release have occurred. Upon the
finding of a Grade A or B violation, the court shall revoke an
individual's supervised release; upon the finding of a Grade C
violation, the court may either revoke supervised release, or it may
extend the term of supervision and/or modify the conditions of
supervision. USSG Sec. 7B1.3(a). When a court does revoke supervised
release, Sec. 7B1.3(b) directs that the applicable range of
imprisonment is the one set forth in Sec. 7B1.4. Section 7B1.3(c)
provides that in the case of a Grade B or C violation, certain
community confinement or home detention sentences are available to
satisfy at least a portion of the sentence. Section 7B1.3(f) directs
that any term of imprisonment imposed upon revocation shall be ordered
to be served consecutively to any sentence of imprisonment the
individual is serving, regardless of whether that other sentence
resulted from the conduct that is the basis for the revocation. If
supervised release is revoked, the court may also include an additional
term of supervised release to be imposed upon release from
imprisonment, but that term may not exceed statutory limits. USSG Sec.
7B1.3(g).
Section 7B1.4 (Term of Imprisonment (Policy Statement)) contains
the revocation table, which sets forth recommended ranges of
imprisonment based on the grade of violation and an individual's
criminal history category. Increased sentencing ranges apply where the
individual has committed a Grade A violation while also on supervised
release following imprisonment for a Class A felony. USSG Sec.
7B1.4(a)(2). An asterisked note to the revocation table notes that the
criminal history category to be applied is the one ``applicable at the
time the defendant originally was sentenced to a term of supervision.''
USSG Sec. 7B1.4(a)(2). Trumping mechanisms apply if the terms of
imprisonment required by statute exceed or fall below the suggested
range. USSG Sec. 7B1.4(b).
Subsection (b) of 7B1.5 (No Credit for Time Under Supervision
(Policy Statement)) directs that upon revocation of supervised release,
``no credit shall be given (toward any term of imprisonment ordered)
for time previously served on post-release supervision.'' An exception
applies for individuals serving a period
[[Page 8979]]
of supervised release on a foreign sentence under the provisions of 18
U.S.C. 4106A. USSG Sec. 7B1.5(c).
Part B of the proposed amendment seeks to revise Chapter Seven to
accomplish two goals. The first is to provide courts greater discretion
to respond to a violation of a condition of supervised release. The
second is to ensure the provisions in Chapter Seven reflect the
differences between probation and supervised release.
Part B of the proposed amendment revises the introductory
commentary in Part A of Chapter Seven. It would add commentary
explaining that the Commission has updated the policy statements
addressing violations of supervised release in response to feedback
from stakeholders identifying the need for more flexible,
individualized responses to such violations. It would also add
commentary highlighting the differences between probation and
supervised release and how those differences have led the Commission to
recommend different approaches to handling violations of probation,
which serves a punitive function, and supervised release, a primary
function of which is to ``fulfill[] rehabilitative ends, distinct from
those served by incarceration.'' United States v. Johnson, 529 U.S. 53,
59 (2000).
Part B of the proposed amendment separates the provisions
addressing violations of probation from those addressing violations of
supervised release by removing all references to supervised release
from Part B of Chapter Seven. It then duplicates the provisions of Part
B as they pertain to supervised release in a new Part C.
Part B of the proposed amendment would create a new Part C in
Chapter Seven to address supervised release violations. Part C would
begin with introductory commentary explaining that--in responding to an
allegation that a supervisee has violated the terms of supervision,
addressing a violation found during revocation proceedings, or imposing
a sentence upon revocation--the court should conduct the same kind of
individualized assessment used throughout the process of imposing a
term of supervised release. It would also express the Commission's view
that courts should consider a wide array of options to address
violations of supervised release.
The specific policy statements of Part C would duplicate the
provisions of Part B as they pertain to supervised release, with a
number of changes. Under the new Sec. 7C1.1 (Classification of
Violations (Policy Statement)), which duplicates Sec. 7B1.1, there
would be a fourth classification of violation: Grade D, which would
include ``a violation of any other condition of supervised release,''
which is currently classified as a Grade C violation.
Part B of the proposed amendment would duplicate Sec. 7B1.2, which
addresses a probation officer's duty to report violations, in the new
Sec. 7C1.2.
Part B of the proposed amendment would create a new Sec. 7C1.3
(Responses to Violations of Supervised Release (Policy Statement)),
establishing the actions a court may take in response to an allegation
of non-compliance with supervised release. Under the policy statement,
upon an allegation of non-compliance, the court would be instructed to
conduct an individualized assessment to determine the appropriate
response. Part B of the proposed amendment brackets the possibility of
creating in the guideline a non-exhaustive list of possible responses
and brackets the possibility of including a list of other possible
responses in an Application Note. It provides two options for
addressing a court's response to a finding of a violation. Under Option
1, upon a finding of a violation for which revocation is not required,
the court would be authorized, subject to an individualized assessment,
to continue the term of supervised release without modification, extend
the term of supervised release or modify the conditions, terminate the
term, or revoke supervised release. Upon a finding of a violation for
which revocation is required by statute, the court would be required to
revoke supervised release. Under Option 2, the court would be required
to revoke supervised release upon a finding of a violation for which
revocation is required by statute or for a Grade A or B violation. Upon
a finding of any other violation, the court would be authorized,
subject to an individualized assessment, to continue the term of
supervised release without modification, extend the term of supervised
release or modify the conditions, terminate the term, or revoke
supervised release.
Section 7C1.4 (Revocation of Supervised Release (Policy Statement))
would address instances of revocation. In such a case, the court would
be required to conduct an individualized assessment to determine the
appropriate length of the term of imprisonment. Part B of the proposed
amendment provides two options, Option 1 and Option 2, for addressing
whether such a term should be served concurrently or consecutively to
any sentence of imprisonment the defendant is serving. Under Option 1,
the court would be instructed to conduct an individualized assessment
to determine whether that term should be served concurrently, partially
concurrently, or consecutively to any sentence of imprisonment the
defendant is serving. Option 2 would maintain the current provision
requiring the term to be served consecutively. Part B of the proposed
amendment would also continue to recognize the court's authority to
include a requirement that the defendant be placed on a term of
supervised release upon release from imprisonment.
Section 7C1.5 (Term of Imprisonment--Supervised Release (Policy
Statement)), which duplicates Sec. 7B1.4, would set forth the
Supervised Release Revocation Table. The Supervised Release Revocation
Table would include recommended ranges of imprisonment, which would be
subject to an individualized assessment conducted by the court. The
Table would also include recommended ranges for Grade D violations. It
would also remove the guidance addressing statutory maximum and minimum
terms of imprisonment.
Finally, Sec. 7C1.6 (No Credit for Time Under Supervision (Policy
Statement)) would duplicate Sec. 7B1.5, which provides that, upon
revocation of supervised release, no credit shall be given for time
previously served on post-release supervision.
Issues for comment are also provided.
Proposed Amendment
Chapter Seven, Part A is amended--
in Subpart 1 by striking ``Under 28 U.S.C. 994(a)(3), the
Sentencing Commission is required to issue guidelines or policy
statements applicable to the revocation of probation and supervised
release. At this time, the Commission has chosen to promulgate policy
statements only. These policy statements will provide guidance while
allowing for the identification of any substantive or procedural issues
that require further review. The Commission views these policy
statements as evolutionary and will review relevant data and materials
concerning revocation determinations under these policy statements.
Revocation guidelines will be issued after federal judges, probation
officers, practitioners, and others have the opportunity to evaluate
and comment on these policy statements.'' and inserting ``Under 28
U.S.C. 994(a)(3), the Sentencing Commission is required to issue
guidelines or policy statements applicable to the revocation of
probation and supervised release. Initially, the Commission chose to
promulgate policy statements only. These policy
[[Page 8980]]
statements were intended to provide guidance and allow for the
identification of any substantive or procedural issues that require
further review. The Commission viewed these policy statements as
evolutionary and intended to review relevant data and materials
concerning revocation determinations under these policy statements.
Updated policies would be issued after federal judges, probation
officers, practitioners, and others had the opportunity to evaluate and
comment on these policy statements.'';
in Subpart 3(a), in the paragraph that begins ``Moreover, the
Commission'' by striking ``anticipates'' and inserting ``anticipated'';
by striking ``will provide'' and inserting ``would provide''; by
striking ``represent'' and inserting ``represented''; and by striking
``intends to promulgate revocation guidelines'' and inserting
``intended to promulgate updated revocation policies'';
in Subpart 3(b)--
in the paragraph that begins ``The Commission debated'' by
inserting after ``the Commission'' the following: ``initially'';
in the paragraph that begins ``After lengthy consideration'' by
inserting after ``the Commission'' the following: ``initially'';
in the paragraph that begins ``Given the relatively narrow'' by
inserting after ``the Commission'' the following: ``initially'';
and in the paragraph that begins ``Accordingly, the Commission'' by
inserting after ``the Commission'' the following: ``initially'';
in Subpart 4--
in the paragraph that begins ``The revocation policy'' by striking
``categorize'' and inserting ``initially categorized''; and by striking
``fix'' and inserting ``fixed'';
and in the paragraph that begins ``The Commission'' by striking
``has elected'' and inserting ``initially elected''; by striking ``the
Commission determined'' and inserting ``the Commission had
determined''; and by striking ``the Commission has initially
concluded'' and inserting ``the Commission initially concluded'';
by striking Subpart 5 as follows:
``5. A Concluding Note
The Commission views these policy statements for revocation of
probation and supervised release as the first step in an evolutionary
process. The Commission expects to issue revocation guidelines after
judges, probation officers, and practitioners have had an opportunity
to apply and comment on the policy statements.
In developing these policy statements, the Commission assembled two
outside working groups of experienced probation officers representing
every circuit in the nation, officials from the Probation Division of
the Administrative Office of the U.S. Courts, the General Counsel's
office at the Administrative Office of the U.S. Courts, and the U.S.
Parole Commission. In addition, a number of federal judges, members of
the Criminal Law and Probation Administration Committee of the Judicial
Conference, and representatives from the Department of Justice and
federal and community defenders provided considerable input into this
effort.'';
and by inserting at the end the following new Subpart 5:
``5. Updating the Approach
The Commission viewed the original policy statements for revocation
of probation and supervised release as the first step in an
evolutionary process. The Commission intended to revise its approach
after judges, probation officers, and practitioners have had an
opportunity to apply and comment on the policy statements. In the three
decades since the promulgation of those policy statements, a broad
array of stakeholders has identified the need for more flexible,
individualized responses to violations of supervised release.
In response, the Commission updated the policy statements in this
Chapter to ensure judges have the discretion necessary to properly
manage supervised release. The revised policy statements encourage
judges to take an individualized approach in: (1) responding to
allegations of non-compliance before initiating revocation proceedings;
(2) addressing violations found during revocation proceedings; and (3)
imposing a sentence of imprisonment upon revocation. These changes are
intended to better allocate taxpayer dollars and probation resources,
encourage compliance and improve public safety, and facilitate the
reentry and rehabilitation of defendants.
This Chapter proceeds in two parts: Part B addresses violations of
probation, and Part C addresses violations of supervised release. Both
parts maintain an approach in which the court addresses primarily the
defendant's failure to comply with court-ordered conditions, while
reflecting, to a limited degree, the seriousness of the underlying
violation and the criminal history of the individual. The Commission
determined that violations of probation and supervised release should
be addressed separately to reflect their different purposes. While
probation serves a punitive function, supervised release `fulfills
rehabilitative ends, distinct from those served by incarceration,'
United States v. Johnson, 529 U.S. 53, 59 (2000). In light of these
differences, Part B continues to recommend revocation for most
probation violations. Part C encourages courts to consider a graduated
response to a violation of supervised release, including considering
all available options focused on facilitating a defendant's transition
into the community and promoting public safety. Parts B and C both
recognize the important role of the court, which is best situated to
consider the individual defendant's risks and needs and respond
accordingly within its broad discretion.''.
Chapter Seven, Part B is amended in the Introductory Commentary--
in the paragraph that begins ``The policy statements'' by striking
``chapter'' and inserting ``part''; and by striking ``supervision'' and
inserting ``probation'';
by striking the following paragraph:
``Because these policy statements focus on the violation of the
court-ordered supervision, this chapter, to the extent permitted by
law, treats violations of the conditions of probation and supervised
release as functionally equivalent.'';
by striking the last paragraph as follows:
``This chapter is applicable in the case of a defendant under
supervision for a felony or Class A misdemeanor. Consistent with Sec.
1B1.9 (Class B or C Misdemeanors and Infractions), this chapter does
not apply in the case of a defendant under supervision for a Class B or
C misdemeanor or an infraction.''
and by inserting at the end the following new paragraph:
``This part is applicable in the case of a defendant on probation
for a felony or Class A misdemeanor. Consistent with Sec. 1B1.9 (Class
B or C Misdemeanors and Infractions), this part does not apply in the
case of a defendant on probation for a Class B or C misdemeanor or an
infraction.''.
Section 7B1.1 is amended--
in subsection (a) by striking ``and supervised release'';
in subsection (a)(3) by striking ``supervision'' and inserting
``probation'';
and in subsection (b) by striking ``supervision'' and inserting
``probation''.
The Commentary to Sec. 7B1.1 captioned ``Application Notes'' is
amended--
in Note 1 by striking ``18 U.S.C. 3563(a)(1) and 3583(d), a
mandatory condition of probation and supervised release'' and inserting
``18 U.S.C.
[[Page 8981]]
3563(a)(1), a mandatory condition of probation'';
and in Note 5 by striking ``under supervision'' and inserting ``on
probation''.
Section 7B1.2 is amended in the heading by striking ``and
Supervised Release''.
Section 7B1.3 is amended--
in the heading by striking ``or Supervised Release'';
in subsection (a)(1) by striking ``or supervised release'';
in subsection (a)(2) by striking ``revoke probation or supervised
release; or (B) extend the term of probation or supervised release and/
or modify the conditions of supervision'' and inserting ``revoke
probation; or (B) extend the term of probation and/or modify the
conditions thereof'';
in subsection (b) by striking ``or supervised release'';
in subsection (e) by striking ``or supervised release'' both places
such phrase appears;
in subsection (f) by striking ``or supervised release'' both places
such phrase appears;
in subsection (g) by striking the following:
``(1) If probation is revoked and a term of imprisonment is
imposed, the provisions of Sec. Sec. 5D1.1-1.3 shall apply to the
imposition of a term of supervised release.
(2) If supervised release is revoked, the court may include a
requirement that the defendant be placed on a term of supervised
release upon release from imprisonment. The length of such a term of
supervised release shall not exceed the term of supervised release
authorized by statute for the offense that resulted in the original
term of supervised release, less any term of imprisonment that was
imposed upon revocation of supervised release. 18 U.S.C. 3583(h).'';
and inserting the following:
``If probation is revoked and a term of imprisonment is imposed,
the provisions of Sec. Sec. 5D1.1-1.3 shall apply to the imposition of
a term of supervised release.''.
The Commentary to Sec. 7B1.3 captioned ``Application Notes'' is
amended--
in Note 1 by striking ``or supervised release''; and by striking
``supervision'' both places such term appears and inserting
``probation'';
by striking Note 2 as follows:
``2. The provisions for the revocation, as well as early
termination and extension, of a term of supervised release are found in
18 U.S.C. 3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective
September 13, 1994), the court, in the case of revocation of supervised
release, may order an additional period of supervised release to follow
imprisonment.'';
by redesignating Notes 3, 4, and 5 as Notes 2, 3, and 4,
respectively;
in Note 2 (as so redesignated) by striking ``or supervised
release''; and by striking ``Bureau of Prisons'' and inserting
``Federal Bureau of Prisons'';
in Note 3 (as so redesignated) by striking ``or supervised
release'' both places such phrase appears;
and in Note 4 (as so redesignated) by striking ``. Intermittent
confinement is authorized as a condition of supervised release during
the first year of supervised release, but only for a violation of a
condition of supervised release in accordance with 18 U.S.C. 3583(e)(2)
and only when facilities are available. See'' and inserting ``; see
also''.
Section 7B1.4 is amended in the heading by striking
``Imprisonment'' and inserting ``Imprisonment--Probation'';
Section 7B1.4(a) is amended in the Table--
in the heading by striking ``Revocation Table'' and inserting
``Probation Revocation Table'';
by striking the following:
``Grade A (1) Except as provided in subdivision (2) below:
12-18 15-21 18-24 24-30 30-37 33-41
(2) Where the defendant was on probation or supervised release as a
result of a sentence for a Class A felony:
24-30 27-33 30-37 37-46 46-57 51-63.
* The criminal history category is the category applicable at the
time the defendant originally was sentenced to a term of
supervision.'';
and by inserting at the end the following:
``Grade A 12-18 15-21 18-24 24-30 30-37 33-41.
* The criminal history category is the category applicable at the
time the defendant originally was sentenced to a term of probation.''.
The Commentary to Sec. 7B1.4 captioned ``Application Notes'' is
amended--
in Note 1 by striking ``supervision'' each place such term appears
and inserting ``probation'';
in Note 2 by striking ``Revocation Table'' and inserting
``Probation Revocation Table''; and by striking ``supervision'' both
places such term appears and inserting ``probation'';
in Note 3 by striking ``under supervision'' and inserting ``on
probation'';
in Note 5 by striking ``or supervised release'' both places such
phrase appears; and by striking ``18 U.S.C. 3565(b), 3583(g)'' and
inserting ``18 U.S.C. 3565(b)'';
and in Note 6 by striking ``18 U.S.C. 3565(b) and 3583(g). 18
U.S.C. 3563(a), 3583(d)'' and inserting ``18 U.S.C. 3565(b). 18 U.S.C.
3563(a)''.
Section 7B1.5 is amended--
in the heading by striking ``Under Supervision'' and inserting ``on
Probation'';
by striking subsections (a), (b), and (c) as follows:
``(a) Upon revocation of probation, no credit shall be given
(toward any sentence of imprisonment imposed) for any portion of the
term of probation served prior to revocation.
(b) Upon revocation of supervised release, no credit shall be given
(toward any term of imprisonment ordered) for time previously served on
post-release supervision.
(c) Provided, that in the case of a person serving a period of
supervised release on a foreign sentence under the provisions of 18
U.S.C. 4106A, credit shall be given for time on supervision prior to
revocation, except that no credit shall be given for any time in escape
or absconder status.'';
and inserting the following:
``Upon revocation of probation, no credit shall be given (toward
any sentence of imprisonment imposed) for any portion of the term of
probation served prior to revocation.''.
The Commentary to Sec. 7B1.5 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. Subsection (c) implements 18 U.S.C. 4106A(b)(1)(C), which
provides that the combined periods of imprisonment and supervised
release in transfer treaty cases shall not exceed the term of
imprisonment imposed by the foreign court.''.
The Commentary to Sec. 7B1.5 captioned ``Background'' is amended
by striking ``or supervised release''; by striking ``with supervision''
and inserting ``with probation''; and by striking ``under supervision''
and inserting ``on probation''.
Chapter Seven is amended by inserting at the end the following new
Part C:
``Part C--Supervised Release Violations
Introductory Commentary
At the time of original sentencing, the court may impose a term of
supervised release to follow the sentence of imprisonment. See 18
U.S.C. 3583(a). During that term, the court may receive allegations
that the supervisee has violated a term of supervision. In
[[Page 8982]]
responding to such allegations, addressing a violation found during
revocation proceedings, and imposing a sentence upon revocation, the
court should conduct the same kind of individualized assessment used
`in determining whether to include a term of supervised release, and,
if a term of supervised release is to be included, in determining the
length of the term and the conditions of supervised release.' See 18
U.S.C. 3583(c), (e); Application Note 1 to Sec. 5D1.1 (Imposition of a
Term of Supervised Release).
If the court finds that the defendant violated a condition of
supervised release, it may continue the defendant on supervised release
under existing conditions, modify the conditions, extend the term, or
revoke supervised release and impose a term of imprisonment. See 18
U.S.C. 3583(e)(3). The court also has authority to terminate a term of
supervised release and discharge the defendant at any time after the
expiration of one year of supervised release if it is satisfied that
such action is warranted by the conduct of the defendant and the
interest of justice. 18 U.S.C. 3583(e)(1).
Because supervised release is intended to promote rehabilitation
and ease the defendant's transition back into the community, the
Commission encourages courts--where possible--to consider a wide array
of options to respond to non-compliant behavior and violations of the
conditions of supervised release. These interim steps before revocation
are intended to allow courts to address the defendant's failure to
comply with court-imposed conditions and to better address the needs of
the defendant while also maintaining public safety. If revocation is
mandated by statute or the court otherwise determines revocation to be
necessary, the sentence imposed upon revocation should be tailored to
address the failure to abide by the conditions of the court-ordered
supervision; imposition of an appropriate punishment for new criminal
conduct is not the primary goal of a revocation sentence. The
determination of the appropriate sentence on any new criminal
conviction that is also a basis of the violation should be a separate
determination for the court having jurisdiction over such conviction.
Sec. 7C1.1. Classification of Violations (Policy Statement)
(a) There are four grades of supervised release violations:
(1) Grade A Violations--conduct constituting (A) a federal, state,
or local offense punishable by a term of imprisonment exceeding one
year that (i) is a crime of violence, (ii) is a controlled substance
offense, or (iii) involves possession of a firearm or destructive
device of a type described in 26 U.S.C. 5845(a); or (B) any other
federal, state, or local offense punishable by a term of imprisonment
exceeding twenty years;
(2) Grade B Violations--conduct constituting any other federal,
state, or local offense punishable by a term of imprisonment exceeding
one year;
(3) Grade C Violations--conduct constituting a federal, state, or
local offense punishable by a term of imprisonment of one year or less;
(4) Grade D Violations--a violation of any other condition of
supervised release.
(b) Where there is more than one violation of the conditions of
supervised release, or the violation includes conduct that constitutes
more than one offense, the grade of the violation is determined by the
violation having the most serious grade.
Commentary
Application Notes:
1. Under 18 U.S.C. 3583(d), a mandatory condition of supervised
release is that the defendant not commit another federal, state, or
local crime. A violation of this condition may be charged whether or
not the defendant has been the subject of a separate federal, state, or
local prosecution for such conduct. The grade of violation does not
depend upon the conduct that is the subject of criminal charges or of
which the defendant is convicted in a criminal proceeding. Rather, the
grade of the violation is to be based on the defendant's actual
conduct.
2. `Crime of violence' is defined in Sec. 4B1.2 (Definitions of
Terms Used in Section 4B1.1). See Sec. 4B1.2(a) and Application Note 1
of the Commentary to Sec. 4B1.2.
3. `Controlled substance offense' is defined in Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1). See Sec. 4B1.2(b) and
Application Note 1 of the Commentary to Sec. 4B1.2.
4. A `firearm or destructive device of a type described in 26
U.S.C. 5845(a)' includes a shotgun, or a weapon made from a shotgun,
with a barrel or barrels of less than 18 inches in length; a weapon
made from a shotgun or rifle with an overall length of less than 26
inches; a rifle, or a weapon made from a rifle, with a barrel or
barrels of less than 16 inches in length; a machine gun; a muffler or
silencer for a firearm; a destructive device; and certain large bore
weapons.
5. Where the defendant is on supervised release in connection with
a felony conviction, or has a prior felony conviction, possession of a
firearm (other than a firearm of a type described in 26 U.S.C. 5845(a))
will generally constitute a Grade B violation, because 18 U.S.C. 922(g)
prohibits a convicted felon from possessing a firearm. The term
`generally' is used in the preceding sentence, however, because there
are certain limited exceptions to the applicability of 18 U.S.C.
922(g). See, e.g., 18 U.S.C. 925(c).
Sec. 7C1.2. Reporting of Violations of Supervised Release (Policy
Statement)
(a) The probation officer shall promptly report to the court any
alleged Grade A or B violation.
(b) The probation officer shall promptly report to the court any
alleged Grade C or D violation unless the officer determines: (1) that
such violation is minor, and not part of a continuing pattern of
violations; and (2) that non-reporting will not present an undue risk
to an individual or the public or be inconsistent with any directive of
the court relative to the reporting of violations.
Commentary
Application Note:
1. Under subsection (b), a Grade C or D violation must be promptly
reported to the court unless the probation officer makes an affirmative
determination that the alleged violation meets the criteria for non-
reporting. For example, an isolated failure to file a monthly report or
a minor traffic infraction generally would not require reporting.
Sec. 7C1.3. Responses to Violations of Supervised Release (Policy
Statement)
(a) Allegation of Non-Compliance.--Upon receiving an allegation
that the defendant is in non-compliance with a condition of supervised
release, the court should conduct an individualized assessment to
determine what response, if any, is appropriate. [When warranted by an
individualized assessment, the court may, for example:
(1) Continue the term of supervised release without modification;
(2) Extend the term of supervised release and/or modify the
conditions thereof;
(3) Terminate the term of supervised release, if more than one year
of the term of supervised release has expired; or
(4) Initiate revocation proceedings.]
[Option 1 (Mandatory Revocation only when Statutorily Required):
(b) Finding of a Violation.--Upon a finding of a violation for
which revocation is not required by statute, the court should conduct
an individualized
[[Page 8983]]
assessment to determine what response, if any, is appropriate. When
warranted by an individualized assessment, the court may:
(1) Continue the term of supervised release without modification;
(2) Extend the term of supervised release and/or modify the
conditions thereof;
(3) Terminate the term of supervised release, if more than one year
of the term of supervised release has expired; or
(4) Revoke supervised release.
(c) Upon a finding of a violation for which revocation is required
by statute, the court shall revoke supervised release. See 18 U.S.C.
3583(g).]
[Option 2 (Mandatory Revocation when Statutorily Required and for
Grade A and B Violations):
(b) Finding of a Violation.--Upon a finding of a violation for
which revocation is required by statute (see 18 U.S.C. 3583(g)) or a
Grade A or B violation, the court shall revoke supervised release.
(c) Upon a finding of any other violation, the court should conduct
an individualized assessment to determine what response, if any, is
appropriate. When warranted by an individualized assessment, the court
may:
(1) Continue the term of supervised release without modification;
(2) Extend the term of supervised release and/or modify the
conditions thereof;
(3) Terminate the term of supervised release, if more than one year
of the term of supervised release has expired; or
(4) Revoke supervised release.]
Commentary
Application Notes:
1. Individualized Assessment.--When making an individualized
assessment under this section, the factors to be considered are the
same as the factors considered in determining whether to impose a term
of supervised release. See 18 U.S.C. 3583(c), (e); Application Note 2
to Sec. 5D1.1 (Imposition of a Term of Supervised Release).
[2. Application of Subsection (a).--Examples of responses to an
allegation of non-compliance with a condition of supervised release
include continuing a violation hearing to provide the defendant time to
come into compliance or directing the defendant to additional resources
needed to come into compliance.]
Sec. 7C1.4. Revocation of Supervised Release (Policy Statement)
[Option 1 (Concurrent or Consecutive Sentences):
(a) In the case of a revocation of supervised release, the court
shall conduct an individualized assessment to determine:
(1) the appropriate length of the term of imprisonment, given the
recommended range of imprisonment set forth in Sec. 7C1.5 (Term of
Imprisonment--Supervised Release (Policy Statement)); and
(2) whether that term should be served concurrently, partially
concurrently, or consecutively to any sentence of imprisonment that the
defendant is serving, whether or not the sentence of imprisonment being
served resulted from the conduct that is the basis of the revocation of
supervised release.]
[Option 2 (Consecutive Sentences Only):
(a) In the case of a revocation of supervised release, the court
shall conduct an individualized assessment to determine the appropriate
length of the term of imprisonment, given the recommended range of
imprisonment set forth in Sec. 7C1.5 (Term of Imprisonment--Supervised
Release (Policy Statement)).
(b) Any term of imprisonment imposed upon the revocation of
supervised release should be ordered to be served consecutively to any
sentence of imprisonment that the defendant is serving, whether or not
the sentence of imprisonment being served resulted from the conduct
that is the basis of the revocation of supervised release.]
([b][c]) If supervised release is revoked, the court may include a
requirement that the defendant be placed on a term of supervised
release upon release from imprisonment. The length of such a term of
supervised release shall not exceed the term of supervised release
authorized by statute for the offense that resulted in the original
term of supervised release, less any term of imprisonment that was
imposed upon revocation of supervised release. 18 U.S.C. 3583(h).
Commentary
Application Notes:
1. Individualized Assessment.--When making an individualized
assessment under subsection (a), the factors to be considered are the
same as the factors considered in determining whether to impose a term
of supervised release. See 18 U.S.C. 3583(c), (e); Application Note 1
to Sec. 5D1.1 (Imposition of a Term of Supervised Release).
2. The provisions for the revocation, as well as early termination
and extension, of a term of supervised release are found in 18 U.S.C.
3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective September 13,
1994), the court, in the case of revocation of supervised release, may
order an additional period of supervised release to follow
imprisonment.
3. In the case of a revocation based, at least in part, on a
violation of a condition specifically pertaining to community
confinement, intermittent confinement, or home detention, use of the
same or a less restrictive sanction is not recommended.
4. Any restitution, fine, community confinement, home detention, or
intermittent confinement previously imposed in connection with the
sentence for which revocation is ordered that remains unpaid or
unserved at the time of revocation shall be ordered to be paid or
served in addition to the sanction determined under Sec. 7C1.5 (Term
of Imprisonment--Supervised Release), and any such unserved period of
community confinement, home detention, or intermittent confinement may
be converted to an equivalent period of imprisonment.
Sec. 7C1.5. Term of Imprisonment--Supervised Release (Policy
Statement)
Unless otherwise required by statute, and subject to an
individualized assessment, the recommended range of imprisonment
applicable upon revocation is set forth in the following table:
Supervised Release Revocation Table
[In months of imprisonment]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Criminal history category *
---------------------------------------------------------------------------------------------------------------------------------------------------------
Grade of violation I II III IV V VI
--------------------------------------------------------------------------------------------------------------------------------------------------------
Grade D................................................. Up to 7 2-8 3-9 4-10 5-11 6-12
Grade C................................................. 3-9 4-10 5-11 6-12 7-13 8-14
[[Page 8984]]
Grade B................................................. 4-10 6-12 8-14 12-18 18-24 21-27
-----------------------------------------------------------------------------------------------
Grade A................................................. (1) Except as provided in subdivision (2) below:
-----------------------------------------------------------------------------------------------
12-18 15-21 18-24 24-30 30-37 33-41
-----------------------------------------------------------------------------------------------
(2) Where the defendant was on supervised release as a result of a sentence for a Class A
felony:
-----------------------------------------------------------------------------------------------
24-30 27-33 30-37 37-46 46-57 51-63
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The criminal history category is the category applicable at the time the defendant originally was sentenced to a term of supervised release.
Commentary
Application Notes:
1. The criminal history category to be used in determining the
applicable range of imprisonment in the Supervised Release Revocation
Table is the category determined at the time the defendant originally
was sentenced to the term of supervision. The criminal history category
is not to be recalculated because the ranges set forth in the
Supervised Release Revocation Table have been designed to take into
account that the defendant violated supervision. In the rare case in
which no criminal history category was determined when the defendant
originally was sentenced to the term of supervision being revoked, the
court shall determine the criminal history category that would have
been applicable at the time the defendant originally was sentenced to
the term of supervision. (See the criminal history provisions of
Sec. Sec. 4A1.1-4B1.4.)
2. In the case of a Grade D violation and a criminal history
category of I, the recommended range of imprisonment in the Supervised
Release Revocation Table is up to 7 months. This range allows for a
sentence of less than 1 month.
3. Departure from the applicable range of imprisonment in the
Supervised Release Revocation Table may be warranted when the court
departed from the applicable range for reasons set forth in Sec. 4A1.3
(Departures Based on Inadequacy of Criminal History Category) in
originally imposing the sentence that resulted in supervised release.
Additionally, an upward departure may be warranted when a defendant,
subsequent to the federal sentence resulting in supervised release, has
been sentenced for an offense that is not the basis of the violation
proceeding.
4. In the case of a Grade C or D violation that is associated with
a high risk of new felonious conduct (e.g., a defendant, under
supervised release for conviction of criminal sexual abuse, violates
the condition that the defendant not associate with children by
loitering near a schoolyard), an upward departure may be warranted.
5. Where the original sentence was the result of a downward
departure (e.g., as a reward for substantial assistance), or a charge
reduction that resulted in a sentence below the guideline range
applicable to the defendant's underlying conduct, an upward departure
may be warranted.
6. Upon a finding that a defendant violated a condition of
supervised release by being in possession of a controlled substance or
firearm or by refusing to comply with a condition requiring drug
testing, the court is required to revoke supervised release and impose
a sentence that includes a term of imprisonment. 18 U.S.C. 3583(g).
7. The availability of appropriate substance abuse programs, or a
defendant's current or past participation in such programs, may warrant
an exception from the requirement of mandatory revocation and
imprisonment under 18 U.S.C. 3583(g). 18 U.S.C. 3583(d).
Sec. 7C1.6. No Credit for Time Under Supervision (Policy Statement)
(a) Upon revocation of supervised release, no credit shall be given
(toward any term of imprisonment ordered) for time previously served on
post-release supervision. See 18 U.S.C. 3583(e)(3).
(b) Provided, that in the case of a person serving a period of
supervised release on a foreign sentence under the provisions of 18
U.S.C. 4106A, credit shall be given for time on supervision prior to
revocation, except that no credit shall be given for any time in escape
or absconder status.
Commentary
Application Note:
1. Subsection (b) implements 18 U.S.C. 4106A(b)(1)(C), which
provides that the combined periods of imprisonment and supervised
release in transfer treaty cases shall not exceed the term of
imprisonment imposed by the foreign court.
Background: This section provides that time served on supervised
release is not to be credited in the determination of any term of
imprisonment imposed upon revocation. Other aspects of the defendant's
conduct, such as compliance with supervision conditions and adjustment
while under supervision, appropriately may be considered by the court
in the determination of the sentence to be imposed within the
applicable revocation range.''.
Issues for Comment
1. Part B of the proposed amendment adds language to address
feedback indicating both that courts and probation officers should be
afforded more discretion in their ability to address a defendant's non-
compliant behavior while on supervised release and that they would
benefit from more guidance concerning revocations of supervised
release.
(A) Part B would include throughout Chapter Seven, Part C
(Supervised Release Violations) a recommendation that courts use an
``individualized assessment'' based on the statutory factors listed in
18 U.S.C. 3583(e) when addressing non-compliant behavior. The
Commission seeks comment on whether the recommendation of an
individualized assessment based on statutory factors is sufficient to
provide both discretion and useful guidance.
(B) New policy statement Sec. 7C1.3 (Responses to Violations of
Supervised Release (Policy Statement)) includes in the Commentary
examples of how a court might address allegations of non-
[[Page 8985]]
compliant behavior short of the more formal options listed in 18 U.S.C.
3583(e). In addition, Part B maintains instructions on violations
related to community confinement conditions in the Commentary to new
policy statement Sec. 7C1.4 (Revocation of Supervised Release (Policy
Statement)). The Commission seeks comment on whether such guidance
should be retained or deleted and whether similar guidance should be
included elsewhere. If the Commission provides further guidance, what
should that guidance be?
(C) Is there any other approach the Commission should consider to
provide courts with appropriate discretion while also providing useful
guidance, either throughout Chapter Seven, Part C, or for certain
guideline provisions?
2. Part B of the proposed amendment includes two options to address
when revocation is required or appropriate under new Sec. 7C1.3
(Responses to Violations of Supervised Release (Policy Statement)).
Option 1 would remove the language indicating that revocation is
mandatory in all cases of Grade A or B violations and provide that the
court should conduct an individualized assessment to determine whether
to revoke in any cases that revocation is not required by statute.
Option 2 would duplicate the language in Sec. 7B1.3(a) that provides
that ``the court shall revoke'' supervised release upon a finding of a
Grade A or B violation and may revoke in other cases. Should the
Commission continue to provide guidance tying whether revocation is
required to the grade of the violation, or should the Commission remove
this instruction and permit courts to make revocation determinations
based on an individualized assessment in all cases? If the latter,
should the Commission provide further guidance about when revocation is
appropriate?
3. Given the proposed amendment's goal of promoting judicial
discretion at revocation, the Commission seeks comment on whether it
should replace the Supervised Release Revocation Table set forth in
proposed Sec. 7C1.4 (Term of Imprisonment--Supervised Release) with
guidance indicating that courts abide by the statutory limits regarding
maximum and minimum terms. If the Commission decides to retain the
Revocation Table, would any further changes beyond those set forth in
Part B of the proposed amendment be appropriate? For example, should
the Commission recommend a sentence range that begins at less than one
month in all cases, not just those involving Grade D violations for
individuals in Criminal History Category I? Should it eliminate the
higher set of ranges for cases in which the defendant is on supervised
release as a result of a sentence for a Class A felony?
4. The Commission further seeks comment on whether and how a
retained Supervised Release Revocation Table should make
recommendations to courts regarding their consideration of criminal
history. Should the defendant's criminal history category be
recalculated at the time of revocation for a violation of supervised
release? For example, should a court recalculate a defendant's criminal
history score to exclude prior sentences that are no longer countable
under the rules in Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History) or to account for new offenses a defendant
may have been sentenced for after commission of the offense for which
probation or supervised release is being revoked?
5. The Commission seeks comment on whether it should issue more
specific guidance on the appropriate response to Grade D violations.
Should the Commission state that revocation is not ordinarily
appropriate for such violations, unless revocation is required under 18
U.S.C. 3583(g)? Should the Commission further state that revocation may
be appropriate for Grade D violations if there have been multiple
violations or if the court determines that revocation is necessary for
protection of the public? Would such statements imply that revocation
is ordinarily appropriate for Grade A, B, and C violations?
6. The recommended ranges of imprisonment set forth in the
Revocation Tables at Sec. 7B1.4 (Term of Imprisonment--Probation) and
Sec. 7C1.4 (Term of Imprisonment--Supervised Release) are determined,
in part, by the defendant's criminal history category. For both tables,
the criminal history category ``is the category applicable at the time
the defendant originally was sentenced'' to a term of probation or
supervised release. The Commission seeks comment on whether a
defendant's criminal history score should be recalculated at the time
of revocation to reflect changes made by amendments listed in
subsection (d) of Sec. 1B1.10 (Reduction in Term of Imprisonment as a
Result of Amended Guideline Range (Policy Statement)) if one or more of
those amendments have the effect of lowering the defendant's criminal
history category. For example, Part A of Amendment 821, which is
applied retroactively, limits the overall criminal history impact of
``status points,'' potentially resulting in a defendant's criminal
history being lowered (e.g., a defendant assigned criminal history
category IV at the time of original sentencing may have that category
reduced to III). Should the Revocation Tables at Sec. 7B1.4 (Term of
Imprisonment--Probation) and Sec. 7C1.4 (Term of Imprisonment--
Supervised Release) allow for a defendant to benefit from these types
of retroactive changes? Should these changes apply equally to both
tables or, given the different purposes of probation and supervised
release, should the Commission adopt different rules for each table?
2. Drug Offenses
Synopsis of Proposed Amendment: This proposed amendment contains
five parts (Parts A through E). The Commission is considering whether
to promulgate any or all of these parts, as they are not mutually
exclusive.
Part A of the proposed amendment includes two subparts to address
concerns that the Drug Quantity Table at subsection (c) of Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) overly relies on drug type and quantity as a measure of
offense culpability and results in sentences greater than necessary to
accomplish the purposes of sentencing. Subpart 1 sets forth three
options for amending Sec. 2D1.1 to set the highest base offense level
in the Drug Quantity Table at a lower base offense level. Subpart 2
sets forth two options for amending Sec. 2D1.1 to add a new specific
offense characteristic providing for a reduction relating to low-level
trafficking functions. Both subparts include issues for comment.
Part B of the proposed amendment includes two subparts. Subpart 1
would amend Sec. 2D1.1 to address offenses involving ``Ice.'' Subpart
2 sets forth two options for amending Sec. 2D1.1 to address the purity
distinction in Sec. 2D1.1 between methamphetamine in ``actual'' form
and methamphetamine as part of a mixture. Both subparts include issues
for comment.
Part C of the proposed amendment would amend Sec. 2D1.1 to revise
the enhancement for misrepresentation of fentanyl and fentanyl analogue
at subsection (b)(13). Issues for comment are also provided.
Part D of the proposed amendment addresses the application of Sec.
2D1.1(b)(1) to machineguns. An issue for comment is also provided.
Part E of the proposed amendment would amend the Commentary to
Sec. 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences
in Certain Cases) to address the manner by
[[Page 8986]]
which a defendant may satisfy Sec. 5C1.2(a)(5)'s requirement of
providing truthful information and evidence to the Government. An issue
for comment is also provided.
(A) Recalibrating the Use of Drug Weight in Sec. 2D1.1
Synopsis of Proposed Amendment: Part A of the proposed amendment
contains two subparts (Subpart 1 and Subpart 2). The Commission is
considering whether to promulgate one or both of these subparts, as
they are not mutually exclusive.
Subpart 1 sets forth three options for amending Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) to set the highest base offense level in the Drug Quantity
Table at subsection (c) at a lower base offense level.
Subpart 2 sets forth two options for amending Sec. 2D1.1 to add a
new specific offense characteristic providing for a reduction relating
to low-level trafficking functions.
Drug Penalties in General
The most commonly prosecuted federal drug statutes prohibit the
manufacture, distribution, importation, and exportation of controlled
substances. The statutory penalties for these offenses vary based on
(1) the quantity of the drug, (2) the defendant's prior commission of
certain felony offenses, and (3) any serious bodily injury or death
that resulted from using the drug. Section 2D1.1 applies to violations
of 21 U.S.C. 841 and 960, among other drug statutes. This guideline
provides five alternative base offense levels, 18 specific offense
characteristics, and two cross references.
The first four base offense levels, set out in Sec. 2D1.1(a)(1)-
(a)(4), apply when the defendant was convicted of an offense under 21
U.S.C. 841(b) or Sec. 960(b) to which the applicable enhanced
statutory minimum or maximum term of imprisonment applies or when the
parties have stipulated to such an offense or such base offense level.
The fifth base offense level, at Sec. 2D1.1(a)(5), applies in any
other case and sets forth as the base offense level ``the offense level
specified in the Drug Quantity Table,'' subject to special provisions
that apply when a defendant receives a mitigating role adjustment under
Sec. 3B1.2 (Mitigating Role).
The Drug Quantity Table at Sec. 2D1.1(c) applies in the
overwhelming majority of drug cases. The penalty structure of the Drug
Quantity Table is based on the penalty structure of federal drug laws
for most major drug types. That penalty structure generally establishes
several tiers of penalties for manufacturing and trafficking in
controlled substances, each based on the type and quantity of
controlled substances involved. See generally 21 U.S.C. 841(b)(1)(A),
(B), (C), 960(b)(1), (2), (3). Thus, the offense levels set forth in
the Drug Quantity Table depend primarily on drug type and drug
quantity. For most drugs listed in the Drug Quantity Table, quantity is
determined by the drug's weight. The Drug Quantity Table also includes
``Converted Drug Weight,'' which is used to determine the base offense
level in two circumstances: (1) when the defendant's relevant conduct
involves two or more controlled substances (and not merely a single
mixture of two substances); and (2) when the defendant's relevant
conduct involves a controlled substance not specifically listed on the
Drug Quantity Table. In either situation, the weight of the controlled
substances is converted into a Converted Drug Weight using the Drug
Conversion Tables set forth in Application Note 8(D) of the Commentary
to Sec. 2D1.1.
Section 2D1.1 generally incorporates the statutory mandatory
minimum sentences into the guidelines and extrapolates upward and
downward to set offense levels for all drug quantities. Under the
original guidelines, the quantity thresholds in the Drug Quantity Table
were set to provide base offense levels corresponding to guideline
ranges that were slightly above the statutory mandatory minimum
penalties. Accordingly, offenses involving drug quantities that
triggered a five-year statutory minimum were assigned a base offense
level of 26, corresponding to a sentencing guideline range of 63 to 78
months for a defendant in Criminal History Category I (a guideline
range that exceeds the five-year statutory minimum for such offenses by
at least three months). Similarly, offenses that triggered a ten-year
statutory minimum were assigned a base offense level of 32,
corresponding to a sentencing guideline range of 121 to 151 months for
a defendant in Criminal History Category I (a guideline range that
exceeds the ten-year statutory minimum for such offenses by at least
one month).
In 2014, the Commission determined that setting the base offense
levels slightly above the mandatory minimum penalties was no longer
necessary and instead set the base offense levels to straddle the
mandatory minimum penalties. See USSG App. C, amend. 782 (effective
Nov. 1, 2014). Accordingly, offenses involving drug quantities that
trigger a five-year statutory minimum are assigned a base offense level
of 24, corresponding to a sentencing guideline range of 51 to 63 months
for a defendant in Criminal History Category I (a guideline range that
straddles the five-year statutory minimum). Similarly, offenses that
trigger a ten-year statutory minimum are assigned a base offense level
of 30, corresponding to a sentencing guideline range of 97 to 121
months for a defendant in Criminal History Category I (a guideline
range that straddles the ten-year statutory minimum).
Feedback From Stakeholders
The Commission has received comment over the years indicating that
Sec. 2D1.1 overly relies on drug type and quantity as a measure of
offense culpability and results in sentences greater than necessary to
accomplish the purposes of sentencing. Some commenters have suggested
that the Commission should again lower penalties in Sec. 2D1.1, citing
Commission data indicating that judges impose sentences below the
guideline range in most drug trafficking cases. Commission data
reflects that the difference between the average guideline minimum and
average sentence imposed varies depending on the base offense level,
with the greatest difference occurring at the highest offense levels on
the Drug Quantity Table. In addition, commenters have raised concerns
that the mitigating role adjustment from Chapter Three, Part B (Role in
the Offense) is applied inconsistently in drug trafficking cases and
does not adequately reflect individuals' roles in drug trafficking
offenses.
Subpart 1 (Setting a New Highest Base Offense Level in Drug Quantity
Table)
Subpart 1 of Part A of the proposed amendment sets forth three
options for amending Sec. 2D1.1 to set the highest base offense level
in the Drug Quantity Table at subsection (c) at a lower base offense
level.
Option 1 would set the highest base offense level in the Drug
Quantity Table at level 34. Accordingly, it would delete subsections
(c)(1) and (c)(2) of the table, redesignate subsection (c)(3) as
subsection (c)(1), and renumber the remainder of the provisions of the
table accordingly.
Option 2 would set the highest base offense level in the Drug
Quantity Table at level 32. Accordingly, it would delete subsections
(c)(1) through (c)(3) of the table, redesignate subsection (c)(4) as
subsection (c)(1), and renumber the
[[Page 8987]]
remainder of the provisions of the table accordingly.
Option 3 would set the highest base offense level in the Drug
Quantity Table at level 30. Accordingly, it would delete subsections
(c)(1) through (c)(4) of the table, redesignate subsection (c)(5) as
subsection (c)(1), and renumber the remainder of the provisions of the
table accordingly.
Subpart 1 brackets Sec. 2D1.1(a)(5) to indicate that all three
options would require changes to the special provisions that apply when
a defendant receives a mitigating role adjustment under Sec. 3B1.2.
The third issue for comment below provides some background information
on Sec. 2D1.1(a)(5) and sets forth a request for comment on the
changes that should be made to this provision in light of the revisions
proposed by the three options described above.
Additional issues for comment are also provided.
Subpart 2 (New Trafficking Functions Adjustment)
Subpart 2 of Part A of the proposed amendment would add a new
specific offense characteristic providing for a [2][4][6]-level
reduction relating to low-level trafficking functions. It provides two
options for this new reduction.
Option 1 would make the reduction applicable if Sec. 2D1.1(b)(2)
(relating to use of violence) does not apply, [the defendant did not
possess a firearm or other dangerous weapon (or induce another
participant to do so) in connection with the offense,] and [the
defendant's most serious conduct in the offense was limited to][the
defendant's primary function in the offense was] performing any of the
low-level trafficking functions listed in the new provision.
Option 2, like Option 1, would make the reduction applicable if
Sec. 2D1.1(b)(2) does not apply, [the defendant did not possess a
firearm or other dangerous weapon (or induce another participant to do
so) in connection with the offense,] and [the defendant's most serious
conduct in the offense was limited to][the defendant's primary function
in the offense was] a low-level trafficking function. However, unlike
Option 1, Option 2 would not list low-level trafficking functions to
which the reduction would necessarily apply. Instead, Option 2 would
list functions that may qualify for the reduction as examples.
Both options would include a provision indicating that the
reduction at proposed Sec. 2D1.1(b)(17) shall apply regardless of
whether the defendant acted alone or in concert with others. In
addition, Options 1 and 2 would add a special instruction to Sec.
2D1.1 providing that Sec. 3B1.2 does not apply to cases where the
defendant's offense level is determined under Sec. 2D1.1. It would
also include a new application note in the Commentary to Sec. 2D1.1
relating to the new low-level trafficking functions adjustment. The new
application note would provide guidance taken from the Commentary to
Sec. 3B1.2. Options 1 and 2 would also make conforming changes in
Sec. 2D1.1 to replace all references to Sec. 3B1.2 with references to
the new low-level trafficking functions reduction. These conforming
changes include tying the additional decreases and mitigating role cap
at Sec. 2D1.1(a)(5) to the application of the proposed reduction at
new Sec. 2D1.1(b)(17) for low-level trafficking functions.
Issues for comment are also provided.
Subpart 1 (Setting a New Highest Base Offense Level in Drug Quantity
Table)
Proposed Amendment
[Options 1, 2, and 3 set forth in this subpart would require
changes to Sec. 2D1.1(a)(5). See the third issue for comment below on
possible changes that should be made to Sec. 2D1.1(a)(5) in light of
the revisions proposed by these three options.]
[Option 1 (Highest Base Offense Level at Level 34):
Section 2D1.1(c) is amended--
by striking paragraphs (1), (2), and (3) as follows:
``(1) 90 KG or more of Heroin; Level 38
450 KG or more of Cocaine;
25.2 KG or more of Cocaine Base;
90 KG or more of PCP, or 9 KG or more of PCP (actual);
45 KG or more of Methamphetamine, or
4.5 KG or more of Methamphetamine (actual), or
4.5 KG or more of `Ice';
45 KG or more of Amphetamine, or
4.5 KG or more of Amphetamine (actual);
900 G or more of LSD;
36 KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-
4-piperidinyl] Propanamide);
9 KG or more of a Fentanyl Analogue;
90,000 KG or more of Marihuana;
18,000 KG or more of Hashish;
1,800 KG or more of Hashish Oil;
90,000,000 units or more of Ketamine;
90,000,000 units or more of Schedule I or II Depressants;
5,625,000 units or more of Flunitrazepam;
90,000 KG or more of Converted Drug Weight.
(2) At least 30 KG but less than 90 KG of Heroin; Level 36
At least 150 KG but less than 450 KG of Cocaine;
At least 8.4 KG but less than 25.2 KG of Cocaine Base;
At least 30 KG but less than 90 KG of PCP, or
at least 3 KG but less than 9 KG of PCP (actual);
At least 15 KG but less than 45 KG of Methamphetamine, or
at least 1.5 KG but less than 4.5 KG of Methamphetamine (actual),
or
at least 1.5 KG but less than 4.5 KG of `Ice';
At least 15 KG but less than 45 KG of Amphetamine, or
at least 1.5 KG but less than 4.5 KG of Amphetamine (actual);
At least 300 G but less than 900 G of LSD;
At least 12 KG but less than 36 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
At least 3 KG but less than 9 KG of a Fentanyl Analogue;
At least 30,000 KG but less than 90,000 KG of Marihuana;
At least 6,000 KG but less than 18,000 KG of Hashish;
At least 600 KG but less than 1,800 KG of Hashish Oil;
At least 30,000,000 units but less than 90,000,000 units
of Ketamine;
At least 30,000,000 units but less than 90,000,000 units
of Schedule I or II Depressants;
At least 1,875,000 units but less than 5,625,000 units of
Flunitrazepam;
At least 30,000 KG but less than 90,000 KG of Converted
Drug Weight.
(3) At least 10 KG but less than 30 KG of Heroin; Level 34
At least 50 KG but less than 150 KG of Cocaine;
At least 2.8 KG but less than 8.4 KG of Cocaine Base;
At least 10 KG but less than 30 KG of PCP, or
at least 1 KG but less than 3 KG of PCP (actual);
At least 5 KG but less than 15 KG of Methamphetamine, or
at least 500 G but less than 1.5 KG of Methamphetamine (actual), or
at least 500 G but less than 1.5 KG of `Ice';
At least 5 KG but less than 15 KG of Amphetamine, or
at least 500 G but less than 1.5 KG of Amphetamine (actual);
At least 100 G but less than 300 G of LSD;
At least 4 KG but less than 12 KG of Fentanyl (N-phenyl-N-
[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
[[Page 8988]]
At least 1 KG but less than 3 KG of a Fentanyl Analogue;
At least 10,000 KG but less than 30,000 KG of Marihuana;
At least 2,000 KG but less than 6,000 KG of Hashish;
At least 200 KG but less than 600 KG of Hashish Oil;
At least 10,000,000 but less than 30,000,000 units of
Ketamine;
At least 10,000,000 but less than 30,000,000 units of
Schedule I or II Depressants;
At least 625,000 but less than 1,875,000 units of
Flunitrazepam;
At least 10,000 KG but less than 30,000 KG of Converted
Drug Weight.'';
by inserting the following new paragraph (1):
``(1) 10 KG or more of Heroin; Level 34
50 KG or more of Cocaine;
2.8 KG or more of Cocaine Base;
10 KG or more of PCP, or
1 KG or more of PCP (actual);
5 KG or more of Methamphetamine, or
500 G or more of Methamphetamine (actual), or
500 G or more of `Ice';
5 KG or more of Amphetamine, or
500 G or more of Amphetamine (actual);
100 G or more of LSD;
4 KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] Propanamide);
1 KG or more of a Fentanyl Analogue;
10,000 KG or more of Marihuana;
2,000 KG or more of Hashish;
200 KG or more of Hashish Oil;
10,000,000 units or more of Ketamine;
10,000,000 units or more of Schedule I or II Depressants;
625,000 units or more of Flunitrazepam;
10,000 KG or more of Converted Drug Weight.'';
and by redesignating paragraphs (4) through (17) as paragraphs (2)
through (15), respectively.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 27(B) by striking ``level 38'' each place such term
appears and inserting ``level 34''.]
[Option 2 (Highest Base Offense Level at Level 32):
Section 2D1.1(c) is amended--
by striking paragraphs (1), (2), (3), and (4) as follows:
``(1) 90 KG or more of Heroin; Level 38
450 KG or more of Cocaine;
25.2 KG or more of Cocaine Base;
90 KG or more of PCP, or 9 KG or more of PCP (actual);
45 KG or more of Methamphetamine, or
4.5 KG or more of Methamphetamine (actual), or
4.5 KG or more of `Ice';
45 KG or more of Amphetamine, or
4.5 KG or more of Amphetamine (actual);
900 G or more of LSD;
36 KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-
4-piperidinyl] Propanamide);
9 KG or more of a Fentanyl Analogue;
90,000 KG or more of Marihuana;
18,000 KG or more of Hashish;
1,800 KG or more of Hashish Oil;
90,000,000 units or more of Ketamine;
90,000,000 units or more of Schedule I or II Depressants;
5,625,000 units or more of Flunitrazepam;
90,000 KG or more of Converted Drug Weight.
(2) At least 30 KG but less than 90 KG of Heroin; Level 36
At least 150 KG but less than 450 KG of Cocaine;
At least 8.4 KG but less than 25.2 KG of Cocaine Base;
At least 30 KG but less than 90 KG of PCP, or
at least 3 KG but less than 9 KG of PCP (actual);
At least 15 KG but less than 45 KG of Methamphetamine, or
at least 1.5 KG but less than 4.5 KG of Methamphetamine (actual),
or
at least 1.5 KG but less than 4.5 KG of `Ice';
At least 15 KG but less than 45 KG of Amphetamine, or
at least 1.5 KG but less than 4.5 KG of Amphetamine (actual);
At least 300 G but less than 900 G of LSD;
At least 12 KG but less than 36 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
At least 3 KG but less than 9 KG of a Fentanyl Analogue;
At least 30,000 KG but less than 90,000 KG of Marihuana;
At least 6,000 KG but less than 18,000 KG of Hashish;
At least 600 KG but less than 1,800 KG of Hashish Oil;
At least 30,000,000 units but less than 90,000,000 units
of Ketamine;
At least 30,000,000 units but less than 90,000,000 units
of Schedule I or II Depressants;
At least 1,875,000 units but less than 5,625,000 units of
Flunitrazepam;
At least 30,000 KG but less than 90,000 KG of Converted
Drug Weight.
(3) At least 10 KG but less than 30 KG of Heroin; Level 34
At least 50 KG but less than 150 KG of Cocaine;
At least 2.8 KG but less than 8.4 KG of Cocaine Base;
At least 10 KG but less than 30 KG of PCP, or
at least 1 KG but less than 3 KG of PCP (actual);
At least 5 KG but less than 15 KG of Methamphetamine, or
at least 500 G but less than 1.5 KG of Methamphetamine (actual), or
at least 500 G but less than 1.5 KG of `Ice';
At least 5 KG but less than 15 KG of Amphetamine, or
at least 500 G but less than 1.5 KG of Amphetamine (actual);
At least 100 G but less than 300 G of LSD;
At least 4 KG but less than 12 KG of Fentanyl (N-phenyl-N-
[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
At least 1 KG but less than 3 KG of a Fentanyl Analogue;
At least 10,000 KG but less than 30,000 KG of Marihuana;
At least 2,000 KG but less than 6,000 KG of Hashish;
At least 200 KG but less than 600 KG of Hashish Oil;
At least 10,000,000 but less than 30,000,000 units of
Ketamine;
At least 10,000,000 but less than 30,000,000 units of
Schedule I or II Depressants;
At least 625,000 but less than 1,875,000 units of
Flunitrazepam;
At least 10,000 KG but less than 30,000 KG of Converted
Drug Weight.
(4) At least 3 KG but less than 10 KG of Heroin; Level 32
At least 15 KG but less than 50 KG of Cocaine;
At least 840 G but less than 2.8 KG of Cocaine Base;
At least 3 KG but less than 10 KG of PCP, or
at least 300 G but less than 1 KG of PCP (actual);
At least 1.5 KG but less than 5 KG of Methamphetamine, or
at least 150 G but less than 500 G of Methamphetamine (actual), or
at least 150 G but less than 500 G of `Ice';
At least 1.5 KG but less than 5 KG of Amphetamine, or
at least 150 G but less than 500 G of Amphetamine (actual);
At least 30 G but less than 100 G of LSD;
At least 1.2 KG but less than 4 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
At least 300 G but less than 1 KG of a Fentanyl Analogue;
[[Page 8989]]
At least 3,000 KG but less than 10,000 KG of Marihuana;
At least 600 KG but less than 2,000 KG of Hashish;
At least 60 KG but less than 200 KG of Hashish Oil;
At least 3,000,000 but less than 10,000,000 units of
Ketamine;
At least 3,000,000 but less than 10,000,000 units of
Schedule I or II Depressants;
At least 187,500 but less than 625,000 units of
Flunitrazepam;
At least 3,000 KG but less than 10,000 KG of Converted
Drug Weight.'';
by inserting the following new paragraph (1):
``(1) 3 KG or more of Heroin; Level 32
15 KG or more of Cocaine;
840 G or more of Cocaine Base;
3 KG or more of PCP, or
300 G or more of PCP (actual);
1.5 KG or more of Methamphetamine, or
150 G or more of Methamphetamine (actual), or
150 G or more of `Ice';
1.5 KG or more of Amphetamine, or
150 G or more of Amphetamine (actual);
30 G or more of LSD;
1.2 KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-
4-piperidinyl] Propanamide);
300 G or more of a Fentanyl Analogue;
3,000 KG or more of Marihuana;
600 KG or more of Hashish;
60 KG or more of Hashish Oil;
3,000,000 units or more of Ketamine;
3,000,000 units or more of Schedule I or II Depressants;
187,500 units or more of Flunitrazepam;
3,000 KG or more of Converted Drug Weight.'';
and by redesignating paragraphs (5) through (17) as paragraphs (2)
through (14), respectively.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 27(B) by striking ``level 38'' each place such term
appears and inserting ``level 32''.]
[Option 3 (Highest Base Offense Level at Level 30):
Section 2D1.1(c) is amended--
by striking paragraphs (1), (2), (3), (4), and (5) as follows:
``(1) 90 KG or more of Heroin; Level 38
450 KG or more of Cocaine;
25.2 KG or more of Cocaine Base;
90 KG or more of PCP, or 9 KG or more of PCP (actual);
45 KG or more of Methamphetamine, or
4.5 KG or more of Methamphetamine (actual), or
4.5 KG or more of `Ice';
45 KG or more of Amphetamine, or
4.5 KG or more of Amphetamine (actual);
900 G or more of LSD;
36 KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-
4-piperidinyl] Propanamide);
9 KG or more of a Fentanyl Analogue;
90,000 KG or more of Marihuana;
18,000 KG or more of Hashish;
1,800 KG or more of Hashish Oil;
90,000,000 units or more of Ketamine;
90,000,000 units or more of Schedule I or II Depressants;
5,625,000 units or more of Flunitrazepam;
90,000 KG or more of Converted Drug Weight.
(2) At least 30 KG but less than 90 KG of Heroin; Level 36
At least 150 KG but less than 450 KG of Cocaine;
At least 8.4 KG but less than 25.2 KG of Cocaine Base;
At least 30 KG but less than 90 KG of PCP, or
at least 3 KG but less than 9 KG of PCP (actual);
At least 15 KG but less than 45 KG of Methamphetamine, or
at least 1.5 KG but less than 4.5 KG of Methamphetamine (actual),
or
at least 1.5 KG but less than 4.5 KG of `Ice';
At least 15 KG but less than 45 KG of Amphetamine, or
at least 1.5 KG but less than 4.5 KG of Amphetamine (actual);
At least 300 G but less than 900 G of LSD;
At least 12 KG but less than 36 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
At least 3 KG but less than 9 KG of a Fentanyl Analogue;
At least 30,000 KG but less than 90,000 KG of Marihuana;
At least 6,000 KG but less than 18,000 KG of Hashish;
At least 600 KG but less than 1,800 KG of Hashish Oil;
At least 30,000,000 units but less than 90,000,000 units
of Ketamine;
At least 30,000,000 units but less than 90,000,000 units
of Schedule I or II Depressants;
At least 1,875,000 units but less than 5,625,000 units of
Flunitrazepam;
At least 30,000 KG but less than 90,000 KG of Converted
Drug Weight.
(3) At least 10 KG but less than 30 KG of Heroin; Level 34
At least 50 KG but less than 150 KG of Cocaine;
At least 2.8 KG but less than 8.4 KG of Cocaine Base;
At least 10 KG but less than 30 KG of PCP, or
at least 1 KG but less than 3 KG of PCP (actual);
At least 5 KG but less than 15 KG of Methamphetamine, or
at least 500 G but less than 1.5 KG of Methamphetamine (actual), or
at least 500 G but less than 1.5 KG of `Ice';
At least 5 KG but less than 15 KG of Amphetamine, or
at least 500 G but less than 1.5 KG of Amphetamine (actual);
At least 100 G but less than 300 G of LSD;
At least 4 KG but less than 12 KG of Fentanyl (N-phenyl-N-
[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
At least 1 KG but less than 3 KG of a Fentanyl Analogue;
At least 10,000 KG but less than 30,000 KG of Marihuana;
At least 2,000 KG but less than 6,000 KG of Hashish;
At least 200 KG but less than 600 KG of Hashish Oil;
At least 10,000,000 but less than 30,000,000 units of
Ketamine;
At least 10,000,000 but less than 30,000,000 units of
Schedule I or II Depressants;
At least 625,000 but less than 1,875,000 units of
Flunitrazepam;
At least 10,000 KG but less than 30,000 KG of Converted
Drug Weight.
(4) At least 3 KG but less than 10 KG of Heroin; Level 32
At least 15 KG but less than 50 KG of Cocaine;
At least 840 G but less than 2.8 KG of Cocaine Base;
At least 3 KG but less than 10 KG of PCP, or
at least 300 G but less than 1 KG of PCP (actual);
At least 1.5 KG but less than 5 KG of Methamphetamine, or
at least 150 G but less than 500 G of Methamphetamine (actual), or
at least 150 G but less than 500 G of `Ice';
At least 1.5 KG but less than 5 KG of Amphetamine, or
at least 150 G but less than 500 G of Amphetamine (actual);
At least 30 G but less than 100 G of LSD;
At least 1.2 KG but less than 4 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
At least 300 G but less than 1 KG of a Fentanyl Analogue;
At least 3,000 KG but less than 10,000 KG of Marihuana;
[[Page 8990]]
At least 600 KG but less than 2,000 KG of Hashish;
At least 60 KG but less than 200 KG of Hashish Oil;
At least 3,000,000 but less than 10,000,000 units of
Ketamine;
At least 3,000,000 but less than 10,000,000 units of
Schedule I or II Depressants;
At least 187,500 but less than 625,000 units of
Flunitrazepam;
At least 3,000 KG but less than 10,000 KG of Converted
Drug Weight.
(5) At least 1 KG but less than 3 KG of Heroin; Level 30
At least 5 KG but less than 15 KG of Cocaine;
At least 280 G but less than 840 G of Cocaine Base;
At least 1 KG but less than 3 KG of PCP, or
at least 100 G but less than 300 G of PCP (actual);
At least 500 G but less than 1.5 KG of Methamphetamine, or
at least 50 G but less than 150 G of Methamphetamine (actual), or
at least 50 G but less than 150 G of `Ice';
At least 500 G but less than 1.5 KG of Amphetamine, or
at least 50 G but less than 150 G of Amphetamine (actual);
At least 10 G but less than 30 G of LSD;
At least 400 G but less than 1.2 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
At least 100 G but less than 300 G of a Fentanyl Analogue;
At least 1,000 KG but less than 3,000 KG of Marihuana;
At least 200 KG but less than 600 KG of Hashish;
At least 20 KG but less than 60 KG of Hashish Oil;
At least 1,000,000 but less than 3,000,000 units of
Ketamine;
At least 1,000,000 but less than 3,000,000 units of
Schedule I or II Depressants;
At least 62,500 but less than 187,500 units of
Flunitrazepam;
At least 1,000 KG but less than 3,000 KG of Converted Drug
Weight.'';
by inserting the following new paragraph (1):
``(1) 1 KG or more of Heroin; Level 30
5 KG or more of Cocaine;
280 G or more of Cocaine Base;
1 KG or more of PCP, or
100 G or more of PCP (actual);
500 G or more of Methamphetamine, or
50 G or more of Methamphetamine (actual), or
50 G or more of `Ice';
500 G or more of Amphetamine, or
50 G or more of Amphetamine (actual);
10 G or more of LSD;
400 G or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-
4-piperidinyl] Propanamide);
100 G or more of a Fentanyl Analogue;
1,000 KG or more of Marihuana;
200 KG or more of Hashish;
20 KG or more of Hashish Oil;
1,000,000 units or more of Ketamine;
1,000,000 units or more of Schedule I or II Depressants;
62,500 units or more of Flunitrazepam;
1,000 KG or more of Converted Drug Weight.'';
and by redesignating paragraphs (6) through (17) as paragraphs (2)
through (13), respectively.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 27(B) by striking ``level 38'' each place such term
appears and inserting ``level 30''.]
Issues for Comment
1. Commission data reflects that the difference between the average
guideline minimum and average sentence imposed varies depending on the
base offense level, with the greatest difference occurring at the
highest base offense levels. Subpart 1 sets forth three options for
amending the Drug Quantity Table at subsection (c) of Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) to set the highest base offense level at [34][32][30].
Should the Commission consider setting the highest base offense level
at another level? If so, what is the appropriate highest base offense
level for the Drug Quantity Table?
2. Subpart 1 of Part A of the proposed amendment would amend Sec.
2D1.1 to reduce the highest base offense level in the Drug Quantity
Table. The Commission seeks comment on whether it should instead
consider reducing all base offense levels in the Drug Quantity Table.
If so, to what extent? Should this reduction apply to all drug types
and at all offense levels? Are there drug types for which the base
offense levels should not be reduced or for which there should be a
different base offense level reduction?
3. The mitigating role cap at Sec. 2D1.1(a)(5) provides a decrease
for base offense levels of 32 or greater when the mitigating role
adjustment at Sec. 3B1.2 applies. The mitigating role cap also sets
forth a maximum base offense level of 32 based on the application of
the 4-level reduction (``minimal participant'') at Sec. 3B1.2(a).
Subpart 1 sets forth three options to decrease the highest base offense
level of the Drug Quantity Table to level [34][32][30]. If the
Commission adopts any of these options, it will require changes to the
mitigating role cap at Sec. 2D1.1(a)(5). The Commission seeks comment
on how it should address the interaction between the options set forth
in Subpart 1 and the mitigating role cap. Specifically, should the
Commission retain some or all clauses in the mitigating role cap if it
sets a highest base offense level at or below the current mitigating
role cap? If so, what base offense levels should trigger the mitigating
role cap? What is the appropriate decrease from those base offense
levels?
4. Section 2D1.11 (Unlawfully Distributing, Importing, Exporting or
Possessing a Listed Chemical; Attempt or Conspiracy) includes two
chemical quantity tables at subsections (d) and (e). Section 2D1.11 is
generally structured to provide base offense levels that are tied to,
but less severe than, the base offense levels in Sec. 2D1.1 for
offenses involving the same substance. If the Commission were to
promulgate Option 1, 2, or 3 from Subpart 1, should the Commission
amend the chemical quantity tables at Sec. 2D1.11?
5. Subpart 1 of Part A of the Proposed Amendment sets forth three
options to decrease the highest base offense level of the Drug Quantity
Table from level 38 to level [34][32][30]. Part B of the proposed
amendment would revise the Drug Quantity Table with respect to
methamphetamine, which is the most common drug type in federal drug
trafficking offenses. The Commission seeks comment on the interaction
between these parts of the proposed amendment. If the Commission were
to amend the Drug Quantity Table relating to methamphetamine, should
that affect the Commission's consideration of a reduction of the
highest base offense level in the Drug Quantity Table? If so, how?
Subpart 2 (New Trafficking Functions Adjustment)
Proposed Amendment
Section 2D1.1(a)(5) is amended by striking ``an adjustment under
Sec. 3B1.2 (Mitigating Role)'' and inserting ``a reduction under
subsection (b)(17)'', and by striking ``the 4-level (`minimal
participant') reduction in Sec. 3B1.2(a)'' and inserting ``a reduction
under subsection (b)(17)''.
Section 2D1.1(b) is amended--
[[Page 8991]]
in paragraph (5) by striking ``an adjustment under Sec. 3B1.2
(Mitigating Role)'' and inserting ``a reduction under subsection
(b)(17)'';
by redesignating paragraphs (17) and (18) as paragraphs (18) and
(19), respectively;
by inserting the following new paragraph (17):
[Option 1 (Specifying functions that trigger reduction):
``(17) If--
(A) subsection (b)(2) does not apply;
[(B) the defendant did not possess a firearm or other dangerous
weapon (or induce another participant to do so) in connection with the
offense;] and
(C) [the defendant's most serious conduct in the offense was
limited to performing any of the following low-level trafficking
functions][the defendant's primary function in the offense was
performing any of the following low-level trafficking functions]--
(i) carried one or more controlled substances (regardless of the
quantity of the controlled substance involved) on their person,
vehicle, vessel, or aircraft for purposes of transporting the
controlled substance, without holding an ownership interest in the
controlled substance or claiming a significant share of profits from
the offense;
(ii) performed any low-level function in the offense other than the
selling of controlled substances (such as running errands, sending or
receiving phone calls or messages, scouting, receiving packages,
packaging controlled substances, acting as a lookout, storing
controlled substances, or acting as a deckhand or crew member on a
vessel or aircraft used to transport controlled substances), without
holding an ownership interest in the controlled substance or claiming a
significant share of profits from the offense; or
(iii) distributed retail or user-level quantities of controlled
substances to end users [or similarly situated distributors] and [one
or more of the following factors is][two or more of the following
factors are] present: (I) the defendant was motivated by an intimate or
familial relationship or by threats or fear to commit the offense and
was otherwise unlikely to commit such an offense; (II) the defendant
was motivated primarily by a substance abuse disorder; (III) the
defendant was engaged in the distribution of controlled substances
infrequently or for brief duration; (IV) the defendant received little
or no compensation from the distribution of the controlled substance
involved in the offense; [or (V) the defendant had limited knowledge of
the distribution network and an additional factor similar to any of the
factors described in subclauses (I) through (IV) is present];
decrease by [2][4][6] levels. This reduction shall apply regardless
of whether the defendant acted alone or in concert with others.'';]
[Option 2 (Functions listed as examples):
``(17) If--
(A) subsection (b)(2) does not apply;
[(B) the defendant did not possess a firearm or other dangerous
weapon (or induce another participant to do so) in connection with the
offense;] and
(C) [the defendant's most serious conduct in the offense was
limited to performing a low-level trafficking function][the defendant's
primary function in the offense was performing a low-level trafficking
function]; decrease by [2][4][6] levels. This reduction shall apply
regardless of whether the defendant acted alone or in concert with
others.
Examples:
Functions that may qualify as low-level trafficking functions,
depending on the scope and structure of the criminal activity, include
where the defendant:
(A) carried one or more controlled substances (regardless of the
quantity of the controlled substance involved) on their person,
vehicle, vessel, or aircraft for purposes of transporting the
controlled substance, without holding an ownership interest in the
controlled substance or claiming a significant share of profits from
the offense;
(B) performed any low-level function in the offense other than the
selling of controlled substances (such as running errands, sending or
receiving phone calls or messages, scouting, receiving packages,
packaging controlled substances, acting as a lookout, storing
controlled substances, or acting as a deckhand or crew member on a
vessel or aircraft used to transport controlled substances), without
holding an ownership interest in the controlled substance or claiming a
significant share of profits from the offense; or
(C) distributed retail or user-level quantities of controlled
substances to end users [or similarly situated distributors] and [one
or more of the following factors is][two or more of the following
factors are] present: (i) the defendant was motivated by an intimate or
familial relationship or by threats or fear to commit the offense and
was otherwise unlikely to commit such an offense; (ii) the defendant
was motivated primarily by a substance abuse disorder; (iii) the
defendant was engaged in the distribution of controlled substances
infrequently or for brief duration; (iv) the defendant received little
or no compensation from the distribution of the controlled substance
involved in the offense; [or (v) the defendant had limited knowledge of
the distribution network and an additional factor similar to any of the
factors described in clauses (i) through (iv) is present].'';]
and in paragraph (18) (as so redesignated) by striking ``the 4-
level (`minimal participant') reduction in Sec. 3B1.2(a)'' and
inserting ``a reduction under subsection (b)(17)''.
Section 2D1.1(e) is amended--
in the heading by striking ``Instruction'' and inserting
``Instructions'';
and by inserting at the end the following new paragraph (2):
``(2) If the defendant's offense level is determined under this
guideline, do not apply Sec. 3B1.2 (Mitigating Role).''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended--
by redesignating Notes 21 through 27 as Notes 22 through 28,
respectively;
by inserting the following new Note 21:
``21. Application of Subsection (b)(17).--
(A) A defendant who is accountable under Sec. 1B1.3 (Relevant
Conduct) only for the conduct in which the defendant personally was
involved and who performs a low-level trafficking function may receive
an adjustment under subsection (b)(17). For example, a defendant who is
convicted of a drug trafficking offense, whose participation in that
offense was limited to transporting or storing drugs, and who is
accountable under Sec. 1B1.3 only for the quantity of drugs the
defendant personally transported or stored may receive an adjustment
under subsection (b)(17).
(B) If a defendant has received a lower offense level by virtue of
being convicted of an offense significantly less serious than warranted
by the defendant's actual criminal conduct, a reduction under
subsection (b)(17) ordinarily is not warranted because such defendant
is not substantially less culpable than a defendant whose only conduct
involved the less serious offense.'';
and in Note 22 (as so redesignated) by striking ``(b)(18)'' both
places it appears and inserting ``(b)(19)''.
The Commentary to Sec. 2D1.1 captioned ``Background'' is amended
by striking ``(b)(17)'' and inserting ``(b)(18)''.
Section 2D1.14(a)(1) is amended by striking ``(b)(18)'' and
inserting ``(b)(19)''.
The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is
amended--
[[Page 8992]]
in Note 3(A) by striking the following:
``A defendant who is accountable under Sec. 1B1.3 (Relevant
Conduct) only for the conduct in which the defendant personally was
involved and who performs a limited function in the criminal activity
may receive an adjustment under this guideline. For example, a
defendant who is convicted of a drug trafficking offense, whose
participation in that offense was limited to transporting or storing
drugs and who is accountable under Sec. 1B1.3 only for the quantity of
drugs the defendant personally transported or stored may receive an
adjustment under this guideline.
Likewise, a defendant who is accountable under Sec. 1B1.3 for a
loss amount under Sec. 2B1.1 (Theft, Property Destruction, and Fraud)
that greatly exceeds the defendant's personal gain from a fraud offense
or who had limited knowledge of the scope of the scheme may receive an
adjustment under this guideline. For example, a defendant in a health
care fraud scheme, whose participation in the scheme was limited to
serving as a nominee owner and who received little personal gain
relative to the loss amount, may receive an adjustment under this
guideline.'',
and inserting the following:
``A defendant who is accountable under Sec. 1B1.3 (Relevant
Conduct) only for the conduct in which the defendant personally was
involved and who performs a limited function in the criminal activity
may receive an adjustment under this guideline. For example, a
defendant who is accountable under Sec. 1B1.3 for a loss amount under
Sec. 2B1.1 (Theft, Property Destruction, and Fraud) that greatly
exceeds the defendant's personal gain from a fraud offense or who had
limited knowledge of the scope of the scheme may receive an adjustment
under this guideline. For example, a defendant in a health care fraud
scheme, whose participation in the scheme was limited to serving as a
nominee owner and who received little personal gain relative to the
loss amount, may receive an adjustment under this guideline.'';
and in Note 6 by striking the following:
``Application of Role Adjustment in Certain Drug Cases.--In a case
in which the court applied Sec. 2D1.1 and the defendant's base offense
level under that guideline was reduced by operation of the maximum base
offense level in Sec. 2D1.1(a)(5), the court also shall apply the
appropriate adjustment under this guideline.'',
and inserting the following:
``Non-Applicability of Role Adjustment to Cases Where Offense Level
is Determined under Sec. 2D1.1.--In accordance with subsection (e)(2)
of Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy), Sec. 3B1.2 does not apply to a
defendant whose offense level is determined under Sec. 2D1.1.''.
Issues for Comment
1. Subpart 2 of Part A of the proposed amendment would add a new
specific offense characteristic at subsection (b) of Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) relating to low-level trafficking functions in drug
offenses. The Commission has proposed that this specific offense
characteristic decrease the offense levels by [2][4][6] levels. Should
the adjustment be greater or lesser? Should the reduction be the same
for all low-level trafficking functions?
2. The Commission seeks comment on whether the new specific offense
characteristic at Sec. 2D1.1(b)(17) properly captures low-level
trafficking functions. Are there other factors that this provision
should capture? Are there factors included in the proposed amendment
that should not be included?
3. One of the low-level trafficking functions listed in proposed
Sec. 2D1.1(b)(17) is the distribution of retail or user-level
quantities of controlled substances when certain mitigating
circumstances are present. The Commission seeks comment on whether the
distribution of retail or user-level quantities of controlled
substances, when certain mitigating circumstances are present, merits a
reduction. If so, what mitigating circumstances should the Commission
provide?
4. Section 2D1.1(a)(5) provides an additional decrease to the base
offense level based on the application of the mitigating role
adjustment at Sec. 3B1.2 (Mitigating Role). How should the Commission
amend Sec. 2D1.1(a)(5) to account for the new low-level trafficking
functions adjustment?
5. Section 2D1.1(a)(5) also sets forth a maximum base offense level
of 32 based on the application of the 4-level reduction (``minimal
participant'') at Sec. 3B1.2(a). How should the Commission amend Sec.
2D1.1(a)(5) to account for the new low-level trafficking functions
adjustment?
6. Subpart 2 of Part A of the proposed amendment includes a special
instruction providing that Sec. 3B1.2 (Mitigating Role) does not apply
to cases where the defendant's offense level is determined under Sec.
2D1.1. The Commission seeks comment on whether this special instruction
is appropriate.
7. Some guidelines provide an instruction to use the offense level
from another Chapter Two offense guideline, which generally refers to
the entire offense guideline (i.e., the base offense level, specific
offense characteristics, cross references, and special instructions).
This can result in a case in which the defendant is sentenced under a
guideline other than Sec. 2D1.1 but the offense level is determined
under Sec. 2D1.1. In such a case, the defendant could qualify for both
a low-level trafficking functions adjustment under Sec. 2D1.1 and a
role adjustment under Chapter Three, Part B. The Commission seeks
comment on how it should address this issue.
8. Subpart 2 of Part A of the proposed amendment would add
Commentary to Sec. 2D1.1 that closely tracks certain provisions
currently contained in Application Note 3 of the Commentary to Sec.
3B1.2. The proposed Commentary would provide that a low-level
trafficking functions reduction applies even when the defendant's
relevant conduct is limited to conduct in which the defendant was
personally involved. Additionally, the proposed Commentary would state
that a reduction ordinarily is not warranted when the defendant
received a lower offense level by virtue of being convicted of a
significantly less serious offense than warranted by the defendant's
actual criminal conduct. The Commission seeks comment on whether
including this guidance in the Commentary to Sec. 2D1.1 is
appropriate. Is the guidance provided in these provisions applicable in
the context of the new low-level trafficking functions adjustment at
Sec. 2D1.1? If appropriate, should the Commission alternatively
consider incorporating the prohibition and guidance by reference to the
Commentary to Sec. 3B1.2?
(B) Methamphetamine
Synopsis of Proposed Amendment: Part B of the proposed amendment
contains two subparts (Subpart 1 and Subpart 2). The Commission is
considering whether to promulgate one or both of these subparts, as
they are not mutually exclusive.
Subpart 1 addresses offenses involving ``Ice'' under Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy).
Subpart 2 addresses the purity distinction in Sec. 2D1.1 between
[[Page 8993]]
methamphetamine in ``actual'' form and methamphetamine as part of a
mixture.
Methamphetamine in General
The statutory provisions and penalties associated with the
trafficking of methamphetamine are found at 21 U.S.C. 841 and 960.
While the statutory penalties for most drug types are based solely on
drug quantity, the statutory penalties for methamphetamine are also
based on the purity of the substance involved in the offense. Sections
841 and 960 contain quantity threshold triggers for five- and ten-year
mandatory minimums for methamphetamine (actual) (i.e., ``pure''
methamphetamine) and methamphetamine (mixture) (i.e., ``a mixture or
substance containing a detectable amount of methamphetamine''). See 21
U.S.C. 841(b)(1)(A)(viii), (B)(viii), 960(b)(1)(H), & 960(b)(2)(H). Two
different 10-to-1 quantity ratios set the mandatory minimum penalties
for methamphetamine trafficking offenses. First, the quantity of
substance triggering the ten-year minimum is ten times the quantity
triggering the five-year minimum. Second, the quantity of
methamphetamine mixture triggering each mandatory minimum is set at ten
times the quantity of methamphetamine actual triggering the same
statutory minimum penalty.
Under Sec. 2D1.1, the base offense level for offenses involving
methamphetamine varies based on the purity of the substance.
Specifically, the Drug Quantity Table at Sec. 2D1.1(c) contains three
different entries relating to methamphetamine: (1) ``Methamphetamine,''
which refers to the entire weight of a mixture or substance containing
a detectable amount of methamphetamine; (2) ``Methamphetamine
(actual),'' which refers to the weight of methamphetamine itself
contained in a mixture or substance; and (3) ``Ice,'' which is defined
as ``a mixture or substance containing d-methamphetamine hydrochloride
of at least 80% purity'' (see USSG Sec. 2D1.1(c) (Note C)). The Drug
Quantity Table sets base offense levels for methamphetamine mixture and
methamphetamine (actual) in a manner that reflects the 10:1 quantity
ratio of the applicable statutory provisions, such that it takes ten
times more methamphetamine mixture than methamphetamine (actual) to
trigger the same base offense level.
Although ``Ice'' is included in the guidelines, the term ``Ice''
does not appear in the statutory provisions setting penalties for
methamphetamine offenses. ``Ice'' was added to the guidelines in
response to the 1990 Crime Control Act, which directed the Commission
to amend the guidelines ``for offenses involving smokable crystal
methamphetamine . . . so that convictions for [such offenses] will be
assigned an offense level . . . two levels above that which would have
been assigned to the same offense involving other forms of
methamphetamine.'' See Public Law 101-67, 2701 (1990). The 1990 Crime
Control Act did not, however, define ``smokable crystal
methamphetamine,'' and the Commission and commenters struggled to
determine its meaning. Ultimately, the Commission responded to the Act
by adding ``Ice'' to the Drug Quantity Table--even though the 1990
Crime Control Act did not use that term--and developed a definition of
``Ice'' based on the type and purity of methamphetamine. See USSG App.
C, amend. 370 (effective Nov. 1, 1991). The Commission set the base
offense levels for quantities of ``Ice'' equal to the base offense
levels for the same quantities of methamphetamine (actual).
Commission Data
Commission data shows that, since fiscal year 2002, the number of
offenses involving methamphetamine mixture has remained relatively
steady, but the number of offenses involving methamphetamine (actual)
and ``Ice'' has risen substantially. Offenses involving methamphetamine
(actual) increased 299 percent from 910 offenses in fiscal year 2002 to
3,634 offenses in fiscal year 2022. As a result, in fiscal year 2022,
methamphetamine (actual) accounted for more than half (52.2%) of all
methamphetamine cases. Offenses involving ``Ice'' also have risen
during the past 20 years. In fiscal year 2002, there were 88 offenses
involving ``Ice'' in the federal case load; that number rose by 881
percent to 863 offenses in fiscal year 2022. Offenses involving ``Ice''
now make up more than ten percent (12.4%) of all methamphetamine cases.
Offenses involving methamphetamine mixture comprise roughly a third
(35.4%) of all methamphetamine cases.
In addition, data published by the Commission in a recent report
shows that methamphetamine today is highly and uniformly pure, with an
average purity of 93.2 percent and a median purity of 98.0 percent. The
methamphetamine tested in fiscal year 2022 was uniformly highly pure
regardless of whether it was sentenced as methamphetamine mixture
(91.0% pure on average), methamphetamine actual (92.6%), or ``Ice''
(97.6%). See U.S. Sent'g Comm'n, Methamphetamine Trafficking Offenses
in the Federal Criminal Justice System 4 (June 2024) at https://www.ussc.gov/research/research-reports/methamphetamine-trafficking-offenses-federal-criminal-justice-system.
Feedback From Stakeholders
The Commission has received significant comment regarding Sec.
2D1.1's methamphetamine purity distinction. Some commenters suggest
that the Commission should revisit or eliminate the disparity in Sec.
2D1.1's treatment of methamphetamine mixture, on the one hand, and
methamphetamine (actual) and ``Ice,'' on the other. Most of these
commenters state that purity is no longer an accurate measure of
offense culpability because methamphetamine today is highly and
uniformly pure and that ``Ice'' cases do not involve a higher level of
purity than other forms of methamphetamine. Some of these commenters
also point to disparities in testing practices across judicial
districts, which, in turn, have yielded disparate sentences.
Subpart 1 (``Ice'')
Subpart 1 of Part B of the proposed amendment would amend the Drug
Quantity Table at Sec. 2D1.1(c) and the Drug Equivalency Tables at
Application Note 8(D) of the Commentary to Sec. 2D1.1 to delete all
references to ``Ice.'' In addition, it brackets the possibility of
adding a new specific offense characteristic at subsection (b)(19) that
would provide a 2-level reduction if the offense involved
methamphetamine in a non-smokable, non-crystalline form, which would
continue to ensure that ``convictions for offenses involving smokable
crystal methamphetamine will be assigned an offense level under the
guidelines which is two levels above'' other forms of methamphetamine.
Issues for comment are also provided.
Subpart 2 (Methamphetamine Purity Distinction)
Subpart 2 of Part B of the proposed amendment would address the
10:1 quantity ratio for methamphetamine mixture and methamphetamine
(actual) by deleting all references to ``methamphetamine (actual)''
from the Drug Quantity Table at Sec. 2D1.1(c) and the Drug Conversion
Tables at Application Note 8(D). The weight of methamphetamine in the
tables would then be the entire weight of any mixture or substance
containing a detectable amount of methamphetamine. Subpart 2 of Part B
of the proposed amendment provides two options for setting the quantity
thresholds applicable to methamphetamine.
[[Page 8994]]
Option 1 would set the quantity thresholds for methamphetamine at
the current level for methamphetamine mixture.
Option 2 would set the quantity thresholds for methamphetamine at
the current level of methamphetamine (actual).
Issues for comment are also provided.
Subpart 1 (``Ice'')
Proposed Amendment
[Section 2D1.1(b) is amended by inserting at the end the following
new paragraph (19):
``(19) If the offense involved methamphetamine in a non-smokable,
non-crystalline form, decrease by [2] levels.''.]
Section 2D1.1(c)(1) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``4.5 KG or more of `Ice';''.
Section 2D1.1(c)(2) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 1.5 KG but less than 4.5 KG of `Ice';''.
Section 2D1.1(c)(3) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 500 G but less than 1.5 KG of `Ice';''.
Section 2D1.1(c)(4) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 150 G but less than 500 G of `Ice';''.
Section 2D1.1(c)(5) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 50 G but less than 150 G of `Ice';''.
Section 2D1.1(c)(6) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 35 G but less than 50 G of `Ice';''.
Section 2D1.1(c)(7) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 20 G but less than 35 G of `Ice';''.
Section 2D1.1(c)(8) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 5 G but less than 20 G of `Ice';''.
Section 2D1.1(c)(9) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 4 G but less than 5 G of `Ice';''.
Section 2D1.1(c)(10) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 3 G but less than 4 G of `Ice';''.
Section 2D1.1(c)(11) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 2 G but less than 3 G of `Ice';''.
Section 2D1.1(c)(12) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 1 G but less than 2 G of `Ice';''.
Section 2D1.1(c)(13) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``at least 500 MG but less than 1 G of `Ice';''.
Section 2D1.1(c)(14) is amended in the line referenced to
Methamphetamine (actual) by striking ``, or'' and inserting a
semicolon; and by striking the line referenced to ``Ice'' as follows:
``less than 500 MG of `Ice';''.
The annotation to Sec. 2D1.1(c) captioned ``Notes to Drug Quantity
Table'' is amended--
in Note (B) by striking the following:
``The terms `Hydrocodone (actual)' and `Oxycodone (actual)' refer
to the weight of the controlled substance, itself, contained in the
pill, capsule, or mixture.'';
by striking Note (C) as follows:
``(C) `Ice,' for the purposes of this guideline, means a mixture or
substance containing d-methamphetamine hydrochloride of at least 80%
purity.'';
and by inserting the following new Note (C):
``(C) The terms `Hydrocodone (actual)' and `Oxycodone (actual)'
refer to the weight of the controlled substance, itself, contained in
the pill, capsule, or mixture.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 8(D), under the heading relating to Cocaine and Other
Scheduled I and II Stimulants (and their immediate precursors), by
striking the line referenced to ``Ice'' as follows:
``1 gm of `Ice' = 20 kg''.
Issues for Comment:
1. Subpart 1 of Part B of the proposed amendment would amend the
Drug Quantity Table at subsection (c) of Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) and the Drug Conversion Tables at Application Note 8(D) of
the Commentary to Sec. 2D1.1 to delete all references to ``Ice.'' The
Commission invites comment on whether deleting all references to
``Ice'' in Sec. 2D1.1 is consistent with the 1990 congressional
directive (Pub. L. 101-67, 2701 (1990)) and other provisions of federal
law.
2. Subpart 1 of Part B of the proposed amendment brackets the
possibility of adding a new specific offense characteristic at Sec.
2D1.1(b)(19) that provides a 2-level reduction if the offense involved
methamphetamine in a non-smokable, non-crystalline form. The Commission
invites comment on whether deleting all references to ``Ice,'' while
adding a new specific offense characteristic addressing methamphetamine
in a non-smokable, non-crystalline form, is consistent with the 1990
congressional directive (Pub. L. 101-67, 2701 (1990)) and other
provisions of federal law.
In addition, the Commission invites general comment on
methamphetamine in a non-smokable, non-crystalline form, particularly
on its pharmacological effects, potential for addiction and abuse, the
patterns of abuse and harms associated with their abuse, and the
patterns of trafficking and harms associated with its trafficking. How
is non-smokable, non-crystalline methamphetamine manufactured,
distributed, possessed, and used? What are the characteristics of the
individuals involved in these various criminal activities? What harms
are posed by these activities? How do these harms differ from those
associated with other forms of methamphetamine?
Subpart 2 (Methamphetamine Purity Distinction)
Proposed Amendment
[Option 1 (Using methamphetamine mixture quantity thresholds):
Section 2D1.1(c)(1) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``4.5 KG or more of
Methamphetamine (actual), or''.
Section 2D1.1(c)(2) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 1.5 KG but less than
4.5 KG of Methamphetamine (actual), or''.
Section 2D1.1(c)(3) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 500 G but less than 1.5
KG of Methamphetamine (actual), or''.
[[Page 8995]]
Section 2D1.1(c)(4) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 150 G but less than 500
G of Methamphetamine (actual), or''.
Section 2D1.1(c)(5) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 50 G but less than 150
G of Methamphetamine (actual), or''.
Section 2D1.1(c)(6) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 35 G but less than 50 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(7) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 20 G but less than 35 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(8) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 5 G but less than 20 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(9) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 4 G but less than 5 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(10) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 3 G but less than 4 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(11) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 2 G but less than 3 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(12) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 1 G but less than 2 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(13) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 500 MG but less than 1
G of Methamphetamine (actual), or''.
Section 2D1.1(c)(14) is amended by striking the line referenced to
Methamphetamine (actual) as follows: ``less than 500 MG of
Methamphetamine (actual), or''.
The annotation to Sec. 2D1.1(c) captioned ``Notes to Drug Quantity
Table'' is amended in Note (B) by striking the following:
``The terms `PCP (actual)', `Amphetamine (actual)', and
`Methamphetamine (actual)' refer to the weight of the controlled
substance, itself, contained in the mixture or substance. For example,
a mixture weighing 10 grams containing PCP at 50% purity contains 5
grams of PCP (actual). In the case of a mixture or substance containing
PCP, amphetamine, or methamphetamine, use the offense level determined
by the entire weight of the mixture or substance, or the offense level
determined by the weight of the PCP (actual), amphetamine (actual), or
methamphetamine (actual), whichever is greater.'',
and inserting the following:
``The terms `PCP (actual)' and `Amphetamine (actual)' refer to the
weight of the controlled substance, itself, contained in the mixture or
substance. For example, a mixture weighing 10 grams containing PCP at
50% purity contains 5 grams of PCP (actual). In the case of a mixture
or substance containing PCP or amphetamine, use the offense level
determined by the entire weight of the mixture or substance, or the
offense level determined by the weight of the PCP (actual) or
amphetamine (actual), whichever is greater.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended--
in Note 8(D), under the heading relating to Cocaine and Other
Scheduled I and II Stimulants (and their immediate precursors), by
striking the line referenced to Methamphetamine (actual) as follows:
``1 gm of Methamphetamine (actual) = 20 kg'';
and in Note 27(C) by striking ``methamphetamine,''.]
[Option 2 (Using methamphetamine (actual) quantity thresholds):
Section 2D1.1(c)(1) is amended in the line referenced to
Methamphetamine by striking ``45 KG'' and inserting ``4.5 KG''; and by
striking the line referenced to Methamphetamine (actual) as follows:
``4.5 KG or more of Methamphetamine (actual), or''.
Section 2D1.1(c)(2) is amended in the line referenced to
Methamphetamine by striking ``15 KG but less than 45 KG'' and inserting
``1.5 KG but less than 4.5 KG''; and by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 1.5 KG but less than
4.5 KG of Methamphetamine (actual), or''.
Section 2D1.1(c)(3) is amended in the line referenced to
Methamphetamine by striking ``5 KG but less than 15 KG'' and inserting
``500 G but less than 1.5 KG''; and by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 500 G but less than 1.5
KG of Methamphetamine (actual), or''.
Section 2D1.1(c)(4) is amended in the line referenced to
Methamphetamine by striking ``1.5 KG but less than 5 KG'' and inserting
``150 G but less than 500 G''; and by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 150 G but less than 500
G of Methamphetamine (actual), or''.
Section 2D1.1(c)(5) is amended in the line referenced to
Methamphetamine by striking ``500 G but less than 1.5 KG'' and
inserting ``50 G but less than 150 G''; and by striking the line
referenced to Methamphetamine (actual) as follows: ``at least 50 G but
less than 150 G of Methamphetamine (actual), or''.
Section 2D1.1(c)(6) is amended in the line referenced to
Methamphetamine by striking ``350 G but less than 500 G'' and inserting
``35 G but less than 50 G''; and by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 35 G but less than 50 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(7) is amended in the line referenced to
Methamphetamine by striking ``200 G but less than 350 G'' and inserting
``20 G but less than 35 G''; and by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 20 G but less than 35 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(8) is amended in the line referenced to
Methamphetamine by striking ``50 G but less than 200 G'' and inserting
``5 G but less than 20 G''; and by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 5 G but less than 20 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(9) is amended in the line referenced to
Methamphetamine by striking ``40 G but less than 50 G'' and inserting
``4 G but less than 5 G''; and by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 4 G but less than 5 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(10) is amended in the line referenced to
Methamphetamine by striking ``30 G but less than 40 G'' and inserting
``3 G but less than 4 G''; and by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 3 G but less than 4 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(11) is amended in the line referenced to
Methamphetamine by striking ``20 G but less than 30 G'' and inserting
``2 G but less than 3 G''; and by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 2 G but less than 3 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(12) is amended in the line referenced to
Methamphetamine by striking ``10 G but less than 20 G'' and inserting
``1 G but less than 2 G''; and by striking the line referenced to
Methamphetamine (actual) as follows: ``at least 1 G but less than 2 G
of Methamphetamine (actual), or''.
Section 2D1.1(c)(13) is amended in the line referenced to
Methamphetamine by striking ``5 G but
[[Page 8996]]
less than 10 G'' and inserting ``500 MG but less than 1 G''; and by
striking the line referenced to Methamphetamine (actual) as follows:
``at least 500 MG but less than 1 G of Methamphetamine (actual), or''.
Section 2D1.1(c)(14) is amended in the line referenced to
Methamphetamine by striking ``5 G'' and inserting ``500 MG''; and by
striking the line referenced to Methamphetamine (actual) as follows:
``less than 500 MG of Methamphetamine (actual), or''.
The annotation to Sec. 2D1.1(c) captioned ``Notes to Drug Quantity
Table'' is amended in Note (B) by striking the following:
``The terms `PCP (actual)', `Amphetamine (actual)', and
`Methamphetamine (actual)' refer to the weight of the controlled
substance, itself, contained in the mixture or substance. For example,
a mixture weighing 10 grams containing PCP at 50% purity contains 5
grams of PCP (actual). In the case of a mixture or substance containing
PCP, amphetamine, or methamphetamine, use the offense level determined
by the entire weight of the mixture or substance, or the offense level
determined by the weight of the PCP (actual), amphetamine (actual), or
methamphetamine (actual), whichever is greater.'',
and inserting the following:
``The terms `PCP (actual)' and `Amphetamine (actual)' refer to the
weight of the controlled substance, itself, contained in the mixture or
substance. For example, a mixture weighing 10 grams containing PCP at
50% purity contains 5 grams of PCP (actual). In the case of a mixture
or substance containing PCP or amphetamine, use the offense level
determined by the entire weight of the mixture or substance, or the
offense level determined by the weight of the PCP (actual) or
amphetamine (actual), whichever is greater.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended--
in Note 8(D), under the heading relating to Cocaine and Other
Scheduled I and II Stimulants (and their immediate precursors)--
in the line referenced to Methamphetamine by striking ``2 kg'' and
inserting ``20 kg'';
and by striking the line referenced to Methamphetamine (actual) as
follows:
``1 gm of Methamphetamine (actual) = 20 kg'';
and in Note 27(C) by striking ``methamphetamine,''.]
Issues for Comment:
1. The Commission seeks comment on how, if at all, the guidelines
should be amended to address the 10:1 quantity ratio between
methamphetamine mixture and methamphetamine (actual). Should the
Commission adopt either of the above options or neither? Should the
Commission equalize the treatment of methamphetamine mixture and
methamphetamine (actual) but at some level other than the current
quantity thresholds for methamphetamine mixture or methamphetamine
(actual)? Should the Commission retain references to both
methamphetamine mixture and methamphetamine (actual) and set a quantity
ratio between these substances but at some level other than the current
10:1 ratio? If so, what ratio should the Commission establish, and what
is the basis for such ratio?
2. Option 2 in Subpart 2 of Part B of the proposed amendment would
amend Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy) to establish a 1:1 quantity ratio for
methamphetamine (actual) and methamphetamine mixture by setting the
quantity thresholds for all methamphetamine at the level of
methamphetamine (actual). However, this change may result in an
increased offense level for some cases involving methamphetamine
(actual). For example, under the current Sec. 2D1.1, 5 grams of a
mixture or substance containing 80 percent methamphetamine is treated
as 4 grams of methamphetamine (actual), which triggers a base offense
level of 22. By contrast, under Option 2, 5 grams of a mixture or
substance containing 80 percent methamphetamine would be treated as 5
grams of methamphetamine, which would trigger a base offense level of
24. Is this an appropriate outcome? Why or why not? If not, how should
the Commission revise Sec. 2D1.1 to avoid this outcome?
3. Section 2D1.11 (Unlawfully Distributing, Importing, Exporting or
Possessing a Listed Chemical; Attempt or Conspiracy) includes a
chemical quantity table specifically for ephedrine, pseudoephedrine,
and phenylpropanolamine at subsection (d). The table ties the base
offense levels for these chemicals to the base offense levels for
methamphetamine (actual) set forth in Sec. 2D1.1, assuming a 50
percent actual yield of the controlled substance from the chemicals.
As provided above, Option 1 in Subpart 2 of Part B of the proposed
amendment would amend the Drug Quantity Table at Sec. 2D1.1(c) and the
Drug Equivalency Tables at Application Note 8(D) of the Commentary to
Sec. 2D1.1 to set the quantity thresholds for methamphetamine (actual)
at the same level as methamphetamine mixture. If the Commission were to
promulgate Option 1, should the Commission amend the table at Sec.
2D1.11(d) and make conforming changes to the quantity thresholds?
Should the Commission revise the quantity thresholds in Sec. 2D1.11(d)
in a different way? If so, what quantity thresholds should the
Commission set and on what basis?
4. Subpart 2 of Part B of the proposed amendment addresses the
quantity ratio between methamphetamine mixture and methamphetamine
(actual) in Sec. 2D1.1. In addition to comment on the methamphetamine
purity distinction, the Commission has received comment suggesting that
the Commission should reconsider the different treatment between
cocaine (i.e., ``powder cocaine'') and cocaine base (i.e., ``crack
cocaine'') in the Drug Quantity Table at Sec. 2D1.1(c). Section 2D1.1
provides base offense levels for offenses involving powder cocaine and
crack cocaine that reflect an 18:1 quantity ratio, which tracks the
statutory penalty structure for those substances. See 21 U.S.C.
841(b)(1)(A) & (B); 960(b)(1) & (2). The Commission has examined this
issue for many years and seeks comment on whether to take action in a
future amendment cycle. If so, what action should the Commission take?
(C) Misrepresentation of Fentanyl and Fentanyl Analogues
Synopsis of Proposed Amendment: In 2018, the Commission amended
Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy) to add a new specific offense
characteristic at subsection (b)(13) providing a 4-level increase
whenever the defendant knowingly misrepresented or knowingly marketed
as another substance a mixture or substance containing fentanyl or a
fentanyl analogue. See USSG, App. C. amend. 807 (effective Nov. 1,
2018). To address the increase in cases involving the distribution of
fentanyl and fentanyl analogues and the seizure of fake prescription
pills containing fentanyl, the Commission revised Sec. 2D1.1(b)(13) in
2023 to add a new subparagraph (B) with an alternative 2-level
enhancement for offenses where the defendant represented or marketed as
a legitimately manufactured drug another mixture or substance
containing fentanyl or a fentanyl analogue, and acted with willful
blindness or conscious avoidance of knowledge that such mixture or
substance was not the
[[Page 8997]]
legitimately manufactured drug. See USSG, App. C. amend. 818 (effective
Nov. 1, 2023). In doing so, the Commission cited data showing that, of
the fake pills seized containing fentanyl, most contained a potentially
lethal dose of the substance. Id.
The Commission has received some comment urging the Commission to
revise Sec. 2D1.1(b)(13) because courts rarely apply this enhancement.
According to those commenters, the enhancement is vague and has led to
disagreement on when it should be applied. Some commenters suggested
that the Commission lower the mens rea requirement in Sec.
2D1.1(b)(13) to solve the application issues with the enhancement and
to address the dangerous nature of substances containing fentanyl or a
fentanyl analogue.
Part C of the proposed amendment would revise the enhancement at
Sec. 2D1.1(b)(13) to address these concerns. Three options are
provided.
Option 1 would set forth an offense-based enhancement with no mens
rea requirement at Sec. 2D1.1(b)(13). The revised enhancement would
provide a [2][4]-level enhancement if the offense involved representing
or marketing a mixture or substance containing fentanyl (N-phenyl-N-[1-
(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue as
any other substance.
Option 2 would set forth a defendant-based enhancement with a mens
rea requirement at Sec. 2D1.1(b)(13). The revised enhancement would
provide for a [2][4]-level enhancement if the defendant represented or
marketed a mixture or substance containing fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue as any
other substance, with two bracketed alternatives for the mens rea
requirement. The first bracketed alternative would require that the
defendant had knowledge or reason to believe that the mixture or
substance contained fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue. The second bracketed
alternative would require that the defendant acted with knowledge of or
reckless disregard as to the actual content of the mixture or
substance.
Option 3 would set forth a tiered alternative enhancement at Sec.
2D1.1(b)(13). Subparagraph (A) would provide for a [4]-level increase
if the defendant represented or marketed a mixture or substance
containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
propanamide) or a fentanyl analogue as any other substance, with two
bracketed alternatives for the mens rea requirement. The first
bracketed alternative would require that the defendant had knowledge or
reason to believe that the mixture or substance contained fentanyl (N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl
analogue. The second bracketed alternative would require that the
defendant acted with knowledge of or reckless disregard as to the
actual content of the mixture or substance. Subparagraph (B) would
provide for a [2]-level increase if the offense otherwise involved
representing or marketing a mixture or substance containing fentanyl
(N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a
fentanyl analogue as any other substance. Subparagraph (B) would not
contain a mens rea requirement.
Issues for comment are also provided.
Proposed Amendment
Section 2D1.1(b)(13) is amended by striking the following:
``If the defendant (A) knowingly misrepresented or knowingly
marketed as another substance a mixture or substance containing
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or
a fentanyl analogue, increase by 4 levels; or (B) represented or
marketed as a legitimately manufactured drug another mixture or
substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue, and acted with
willful blindness or conscious avoidance of knowledge that such mixture
or substance was not the legitimately manufactured drug, increase by 2
levels. The term `drug,' as used in subsection (b)(13)(B), has the
meaning given that term in 21 U.S.C. 321(g)(1).'';
and inserting the following:
[Option 1 (Offense-based enhancement with no mens rea requirement):
``If the offense involved representing or marketing a mixture or
substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue as any other
substance, increase by [2][4] levels.''.]
[Option 2 (Defendant-based enhancement with mens rea requirement):
``If the defendant represented or marketed a mixture or substance
containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
propanamide) or a fentanyl analogue as any other substance, [with
knowledge or reason to believe that it contained fentanyl (N-phenyl-N-
[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl
analogue][with knowledge of or reckless disregard as to the actual
content of the mixture or substance], increase by [2][4] levels.''.]
[Option 3 (Tiered alternative provision with a defendant-based
enhancement with mens rea requirement and an offense-based enhancement
with no mens rea requirement):
``If (A) the defendant represented or marketed a mixture or
substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue as any other
substance, [with knowledge or reason to believe that it contained
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or
a fentanyl analogue][with knowledge of or reckless disregard as to the
actual content of the mixture or substance], increase by [4] levels; or
(B) the offense otherwise involved representing or marketing a mixture
or substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue as any other
substance, increase by [2] levels.''.]
Issues for Comment:
1. Part C of the proposed amendment would amend subsection (b)(13)
of Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy) to address some concerns relating to
application issues with the enhancement. The Commission seeks comment
on whether any of the three options set forth above is appropriate to
address the concerns raised by commenters. If not, is there an
alternative approach that the Commission should consider? Should the
Commission provide a different mens rea requirement for Sec.
2D1.1(b)(13)? If so, what mens rea requirement should the Commission
provide?
2. The Commission enacted Sec. 2D1.1(b)(13) to address cases where
individuals purchasing a mixture or substance containing fentanyl or a
fentanyl analogue may believe they are purchasing a different
substance. The Commission invites general comment on whether the
proposed revisions to Sec. 2D1.1(b)(13) are appropriate to address
this harm and the culpability of the defendants in these cases. Is the
use of terms such as ``representing'' and
[[Page 8998]]
``marketing'' sufficient to achieve this purpose? If not, should the
Commission use different terminology to appropriately reflect the
criminal conduct in these cases? What terms should the Commission use?
Should the Commission consider any other changes to Sec. 2D1.1(b)(13)
to address the harm in these cases?
(D) Machineguns
Synopsis of Proposed Amendment: Subsection (b)(1) of Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) provides a 2-level enhancement for cases in which a
``dangerous weapon (including a firearm)'' is possessed. Section
2D1.1(b)(1) does not distinguish between different types of dangerous
weapons involved in the offense, which is different from some statutory
enhancements. For example, greater statutory penalties are imposed for
possession of a machinegun in furtherance of a drug trafficking crime
than possession of other firearms. See 18 U.S.C. 924(c).
The Department of Justice has expressed concern that Sec.
2D1.1(b)(1) fails to differentiate between machineguns and other
weapons. The Department of Justice and other commenters have also noted
the increased prevalence of machinegun conversion devices (``MCDs'')
(i.e., devices designed to convert weapons into fully automatic
firearms), pointing out that weapons equipped with MCDs pose an
increased danger because they can fire more quickly and are more
difficult to control.
Part D of the proposed amendment would amend the enhancement at
Sec. 2D1.1(b)(1) for cases involving the possession of a weapon. It
would create a tiered enhancement based on whether the weapon possessed
was a machinegun (as defined in 26 U.S.C. 5845(b)) or some other
dangerous weapon. Courts would be instructed to apply the greater of
either a 4-level enhancement if a machinegun was possessed or a 2-level
enhancement if a dangerous weapon was possessed.
An issue for comment is also provided.
Proposed Amendment
Section 2D1.1(b)(1) is amended by striking the following:
``If a dangerous weapon (including a firearm) was possessed,
increase by 2 levels.'';
and inserting the following:
``(Apply the greater):
(A) If a machinegun (as defined in 26 U.S.C. 5845(b)) was
possessed, increase by [4] levels;
(B) If a dangerous weapon (including a firearm) was possessed,
increase by 2 levels.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 11(B) by striking ``dangerous weapon'' and inserting
``weapon''.
Issue for Comment:
1. Subsection (b)(1) of Sec. 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including Possession with Intent
to Commit These Offenses); Attempt or Conspiracy) applies if ``a
dangerous weapon . . . was possessed'' as part of the offense and does
not require that the defendant possessed the weapon. In addition, the
Commentary to Sec. 2D1.1 provides that the enhancement ``should be
applied if the weapon was present, unless it is clearly improbable that
the weapon was connected with the offense.'' See USSG Sec. 2D1.1,
comment. (n.11(A)). Therefore, Sec. 2D1.1(b)(1) may apply more broadly
than other weapons-related provisions elsewhere in the guidelines. The
Commission seeks comment on whether the changes set forth in Part D of
the proposed amendment are appropriate in light of these factors.
Should the Commission consider additional changes to Sec. 2D1.1(b)(1)
to address these considerations? What changes, if any, should the
Commission consider?
(E) Safety Valve
Synopsis of Proposed Amendment: Section 3553(f) of title 18, United
States Code, allows a court to impose a sentence without regard to any
statutory minimum penalty if it finds that a defendant meets certain
criteria. The safety valve applies only to offenses under 21 U.S.C.
841, Sec. 844, Sec. 846, Sec. 960, or Sec. 963, or 46 U.S.C. 70503
or Sec. 70506, and to defendants who, among other things, ``truthfully
provided to the Government all information and evidence the defendant
has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan.'' See 18 U.S.C.
3553(f). When it first enacted the safety valve, Congress directed the
Commission to promulgate or amend guidelines and policy statements to
``carry out the purposes of [section 3553(f)].'' See Violent Crime
Control and Law Enforcement Act of 1994, Pub. L. 103-322, 80001(b). The
Commission implemented the directive by incorporating the statutory
text of section 3553(f) into the guidelines at Sec. 5C1.2 (Limitation
on Applicability of Statutory Minimum Sentences in Certain Cases).
Section 5C1.2(a)(5) does not prescribe any particular manner by
which a defendant must satisfy the requirement of providing truthful
information and evidence to the Government. The Commission has heard
concerns, however, that this requirement has been understood to require
that the defendant meet directly with the Government. Due to safety
concerns, defendants otherwise eligible for the safety valve may forego
that benefit due to the requirement of an in-person meeting.
Part E of the proposed amendment would address these concerns by
amending the Commentary to Sec. 5C1.2 to add a provision stating that
subsection (a)(5) does not specify how the defendant should provide
such information and evidence to the Government. It would also provide
that the specific manner by which the defendant has disclosed the
information--whether by written disclosure or in-person meeting--should
not preclude a determination by the court that the defendant has
complied with the requirement of disclosing information about the
offense, provided that the disclosure satisfies the requirements of
completeness and truthfulness. It would state that the fact that the
defendant provided the information as a written disclosure shall not by
itself render the disclosure--if otherwise found complete and
truthful--insufficient.
An issue for comment is also provided.
Proposed Amendment
The Commentary to Sec. 5C1.2 captioned ``Application Notes'' is
amended in Note 4 by striking the following:
``Use of Information Disclosed under Subsection (a).--Information
disclosed by a defendant under subsection (a) may not be used to
enhance the sentence of the defendant unless the information relates to
a violent offense, as defined in Application Note 1(A).'';
and inserting the following:
``Application of Subsection (a)(5).--
(A) Disclosure of Information by the Defendant.--Under subsection
(a)(5), the defendant is required, not later than the time of the
sentencing hearing, to truthfully provide to the Government all
information and evidence the defendant has concerning the offense or
offenses that were part of the same course of conduct or of a common
scheme or plan. Subsection (a)(5) does not specify how the defendant
should provide such information and evidence to the Government. The
specific manner by which the defendant has disclosed the information--
whether by written disclosure or in-person meeting--
[[Page 8999]]
should not preclude a determination by the court that the defendant has
complied with this requirement, provided that the disclosure satisfies
the requirements of completeness and truthfulness. The fact that the
defendant provided the information as a written disclosure shall not by
itself render the disclosure--if otherwise found complete and
truthful--insufficient.
(B) Use of Information Disclosed.--Information disclosed by a
defendant under subsection (a) may not be used to enhance the sentence
of the defendant unless the information relates to a violent offense,
as defined in Application Note 1(A).''.
Issue for Comment:
1. The Commission seeks comment on whether the changes set forth in
Part E of the proposed amendment are appropriate to address the
concerns raised by commenters. If not, is there an alternative approach
that the Commission should consider?
[FR Doc. 2025-02129 Filed 2-3-25; 8:45 am]
BILLING CODE 2210-40-P