Federal Register, Volume 90 Issue 89 (Friday, May 9, 2025)

[Federal Register Volume 90, Number 89 (Friday, May 9, 2025)]
[Notices]
[Pages 19798-19856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-07785]

[[Page 19797]]

Vol. 90

Friday,

No. 89

May 9, 2025

Part II

United States Sentencing Commission

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Sentencing Guidelines for United States Courts; Notice

Federal Register / Vol. 90 , No. 89 / Friday, May 9, 2025 / Notices

[[Page 19798]]

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UNITED STATES SENTENCING COMMISSION

Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of submission to Congress of amendments to the
sentencing guidelines effective November 1, 2025, and request for
comment.

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SUMMARY: The United States Sentencing Commission hereby gives notice
that the Commission has promulgated amendments to the sentencing
guidelines, policy statements, and commentary; and the Commission
requests comment regarding whether it should include in the Guidelines
Manual as changes that may be applied retroactively to previously
sentenced defendants any or all of the following amendments: Parts A
and B of Amendment 1; and Subparts 1 and 2 of Part A of Amendment 2.
This notice sets forth the text of the amendments and the reason for
each amendment, and the request for comment regarding possible
retroactive application of the amendments listed above.

DATES:
Effective Date of Amendments. The Commission has specified an
effective date of November 1, 2025, for the amendments set forth in
this notice.
Written Public Comment. Written public comment regarding possible
retroactive application of Parts A and B of Amendment 1, and Subparts 1
and 2 of Part A of Amendment 2, should be received by the Commission
not later than June 2, 2025. Any public comment received after the
close of the comment period may not be considered.

ADDRESSES: There are two methods for submitting written public comment.
Electronic Submission of Comments. Comments may be submitted
electronically via the Commission's Public Comment Submission Portal at
https://comment.ussc.gov. Follow the online instructions for submitting
comments.
Submission of Comments by Mail. Comments may be submitted by mail
to the following address: United States Sentencing Commission, One
Columbus Circle NE, Suite 2-500, Washington, DC 20002-8002, Attention:
Public Affairs--Issue for Comment on Retroactivity.

FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs
Specialist, (202) 502-4597.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day of May each
year pursuant to 28 U.S.C. 994(p). Absent action of the Congress to the
contrary, submitted amendments become effective by operation of law on
the date specified by the Commission (generally November 1 of the year
in which the amendments are submitted to Congress).

(1) Amendments to the Sentencing Guidelines, Policy Statements, and
Official Commentary

Pursuant to its authority under 28 U.S.C. 994(p), the Commission
has promulgated amendments to the sentencing guidelines, policy
statements, and commentary. Notices of proposed amendments were
published in the Federal Register on January 2, 2025 (see 90 FR 128)
and February 4, 2025 (see 90 FR 8968). The Commission held public
hearings on the proposed amendments in Washington, DC, on February 12,
2025, and March 12-13, 2025. On April 30, 2025, the Commission
submitted the promulgated amendments to the Congress and specified an
effective date of November 1, 2025.
The text of the amendments to the sentencing guidelines, policy
statements, and commentary, and the reason for each amendment, is set
forth below. Additional information pertaining to the amendments
described in this notice may be accessed through the Commission's
website at www.ussc.gov.

(2) Request for Comment on Possible Retroactive Application of Parts A
and B of Amendment 1, and Subparts 1 and 2 of Part A of Amendment 2

This notice sets forth a request for comment regarding whether the
Commission should list in subsection (d) of Sec. 1B1.10 (Reduction in
Term of Imprisonment as a Result of Amended Guideline Range (Policy
Statement)) as an amendment that may be applied retroactively to
previously sentenced defendants any or all of the following subparts or
parts of these amendments: Part A (Circuit Conflict Relating to
``Physically Restrained'' Enhancements) and Part B (Circuit Conflict
Relating to the Meaning of ``Intervening Arrest'' in Sec. 4A1.2(a)(2))
of Amendment 1, and Subpart 1 (Mitigating Role Provisions at Sec.
2D1.1(a)(5)) and Subpart 2 (Special Instruction Relating to Sec.
3B1.2) of Part A of Amendment 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.
Authority: 28 U.S.C. 994(a), (o), (p), and (u); USSC Rules of
Practice and Procedure 2.2, 4.1, and 4.1A.

Carlton W. Reeves,
Chair.

(1) Amendments to the Sentencing Guidelines, Policy Statements, and
Official Commentary

1. Amendment

Part A (Circuit Conflict Concerning ``Physically Restrained''
Enhancements)

Section 2B3.1(b)(2)(B) is amended by striking ``if a firearm was
otherwise used'' and inserting ``if a firearm was used to convey a
specific (not general) threat of harm (e.g., pointing the firearm at a
specific victim or victims; directing the movement of a specific victim
or victims with the firearm) or to make physical contact with a victim
(e.g., pistol whip; firearm placed against victim's body)''.
Section 2B3.1(b)(4)(B) is amended by striking ``if any person was
physically restrained'' and inserting ``if any person's freedom of
movement was restricted through physical contact or confinement, such
as by being tied, bound, or locked up,''.
The Commentary to Sec. 2B3.1 captioned ``Application Notes'' is
amended in Note 1 by striking '' `abducted,' and `physically
restrained' are defined'' and inserting ``and `abducted' have the
meaning given such terms''.
The Commentary to Sec. 2B3.1 captioned ``Background'' is amended
by striking ``was physically restrained by being tied, bound, or lock
up'' and inserting ``a victim's freedom of movement was restricted
through physical contact or confinement, such as by being tied, bound,
or locked up''.
Section 2B3.2(b)(3)(A)(ii) is amended by striking ``if a firearm
was otherwise used'' and inserting ``if a firearm was used to convey a
specific (not general) threat of harm (e.g., pointing the firearm at a
specific victim or victims; directing

[[Page 19799]]

the movement of a specific victim or victims with the firearm) or to
make physical contact with a victim (e.g., pistol whip; firearm placed
against victim's body)''.
Section 2B3.2(b)(5)(B) is amended by striking ``if any person was
physically restrained'' and inserting ``if any person's freedom of
movement was restricted through physical contact or confinement, such
as by being tied, bound, or locked up,''.
The Commentary to Sec. 2B3.2 captioned ``Application Notes'' is
amended in Note 1 by striking '' `physically restrained,' ''.
Section 2E2.1(b)(1)(B) is amended by striking ``if a dangerous
weapon (including a firearm) was otherwise used'' and inserting ``if a
dangerous weapon (including a firearm) was used to convey a specific
(not general) threat of harm (e.g., pointing the weapon at a specific
victim or victims; directing the movement of a specific victim or
victims with the weapon) or to make physical contact with a victim
(e.g., pistol whip; weapon placed against victim's body)''.
Section 2E2.1(b)(3)(B) is amended by striking ``if any person was
physically restrained'' and inserting ``if any person's freedom of
movement was restricted through physical contact or confinement, such
as by being tied, bound, or locked up,''.
The Commentary to Sec. 2E2.1 captioned ``Application Notes'' is
amended in Note 1 by striking `` `otherwise used,' ''; and by striking
`` `abducted,' and `physically restrained' '' and inserting ``and
`abducted' ''.
The Commentary to Sec. 2X1.1 captioned ``Application Notes'' is
amended in Note 2 by striking ``the defendants actually intended to
physically restrain the teller, the specific offense characteristic for
physical restraint would be added'' and inserting ``the defendants
actually intended to restrict the teller's freedom of movement through
physical contact or confinement, the specific offense characteristic
for such restriction would be added''.

Part B (Circuit Conflict Concerning Meaning of ``Intervening Arrest''
in Sec. 4A1.2(a)(2))

Section 4A1.2(a)(2) is amended in the paragraph that begins ``If
the defendant'' by inserting after ``the second offense).'' the
following: ``For purposes of this provision, a traffic stop is not an
intervening arrest.''.
Reason for Amendment: This two-part amendment addresses circuit
conflicts involving Sec. 2B3.1 (Robbery) and Sec. 4A1.2 (Definitions
and Instructions for Computing Criminal History).
Part A--Circuit Conflict Concerning ``Physically Restrained''
Enhancements
Part A of the amendment responds to a circuit conflict over whether
Sec. 2B3.1(b)(4)(B)--which provides for a 2-level increase ``if any
person was physically restrained to facilitate commission of the
offense or to facilitate escape''--applies where a robbery victim is
restricted from moving at gunpoint but is not otherwise immobilized
through measures like those in the definition of ``physically
restrained'' in Application Note 1 to Sec. 1B1.1 (Application
Instructions) (i.e., ``by being tied, bound, or locked up'').
The Second, Third, Fifth, Seventh, and Ninth Circuits have largely
agreed that the psychological coercion of pointing a gun at a victim,
without more, does not qualify, and that a restraint must be
``physical'' for the enhancement to apply. See, e.g., United States v.
Anglin, 169 F.3d 154, 164 (2d Cir. 1999); United States v. Bell, 947
F.3d 49, 57 (3d Cir. 2020); United States v. Garcia, 857 F.3d 708, 713-
14 (5thCir. 2017); United States v. Herman, 930 F.3d 872, 877 (7thCir.
2019); United States v. Parker, 241 F.3d 1114, 1118-19 (9th Cir. 2001).
By contrast, the First, Fourth, Sixth, Tenth, and Eleventh Circuits
have held that restricting a victim's movement at gunpoint suffices for
the enhancement. See, e.g., United States v. Wallace, 461 F.3d 15, 34-
35 (1st Cir. 2006); United States v. Dimache, 665 F.3d 603, 608 (4th
Cir. 2011); United States v. Howell, 17F.4th 673, 692 (6th Cir. 2021);
United States v. Miera, 539 F.3d 1232, 1235-36 (10th Cir. 2008); United
States v. Deleon, 116 F.4th 1260, 1264 (11th Cir. 2024).
The Commission received public comment and testimony indicating
that the conduct at issue in the circuit split (pointing a gun at a
victim during a robbery) is treated differently not only under Sec.
2B3.1(b)(4)(B) but also under the separate Sec. 2B3.1(b)(2)
enhancement. Section 2B3.1(b)(2) provides for tiered offense level
increases for threats and weapon involvement in a robbery, including a
5-level enhancement ``if a firearm was brandished or possessed'' and a
6-level enhancement ``if a firearm was otherwise used.'' The terms
``brandished'' and ``otherwise used'' are defined in Application Note 1
to Sec. 1B1.1.
Circuits that have considered the difference between these
definitions generally agree that while ``brandished'' covers the
general display of a weapon, a firearm is ``otherwise used'' where it
is employed for a specific threat. See, e.g., United States v. Jordan,
945 F.3d 245, 264 (5th Cir. 2019) (``While brandishing `can mean as
little as displaying part of a firearm or making the presence of the
firearm known in order to intimidate,' otherwise using a weapon
includes pointing the weapon at an individual in a specifically
threatening manner.'' (citation omitted)); United States v. Johnson,
803 F.3d 610, 616 (11th Cir. 2015) (``[T]he `otherwise use[ ]' of a
firearm includes the use of the firearm to make an explicit or implicit
threat against a specific person.'').
Commission data shows, however, that pointing a gun at a victim
during a robbery has resulted in the 5-level ``brandished'' increase in
some cases and the 6-level ``otherwise used'' increase in others. The
combination of these differing applications of the firearms enhancement
and the conflict among the circuits regarding the 2-level ``physically
restrained'' enhancement has led to disparities: the total resulting
enhancements have ranged from five to eight levels for pointing a gun
at a victim during a robbery.
To promote uniformity and consistency in guideline application,
Part A of the amendment generally adopts the approach of the Second,
Third, Fifth, Seventh, and Ninth Circuits that Sec. 2B3.1(b)(4)(B)
does not apply solely based on the coercion of using a firearm to
restrict a victim's movement. Rather, the increase applies only ``if
any person's freedom of movement was restricted through physical
contact or confinement, such as by being tied, bound, or locked up, to
facilitate commission of the offense or to facilitate escape.''
Part A of the amendment also revises Sec. 2B3.1(b)(2) to ensure
that use of a firearm during a robbery is accounted for under this
enhancement with more uniformity. It amends Sec. 2B3.1(b)(2)(B) to
state that the 6-level increase applies ``if a firearm was used to
convey a specific (not general) threat of harm (e.g., pointing the
firearm at a specific victim or victims; directing the movement of a
specific victim or victims with the firearm) or to make physical
contact with a victim (e.g., pistol whip; firearm placed against
victim's body).''
To further promote consistency in application of offense guidelines
with similar specific offense characteristics, the amendment makes
parallel changes to two Chapter Two guidelines with ``physically
restrained'' and ``otherwise used'' enhancements: Sec. Sec. 2B3.2
(Extortion by Force or Threat of Injury or Serious Damage) and 2E2.1
(Making or Financing an Extortionate Extension of Credit; Collecting an
Extension of

[[Page 19800]]

Credit by Extortionate Means). The amendment does not make parallel
changes to Sec. 3A1.3 (Restraint of Victim), which also uses the term
``physically restrained'' but differs from Sec. 2B3.1(b)(4)(B) in
other respects. No inferences as to the scope of that Chapter Three
adjustment should be drawn from this amendment.
Part B--Circuit Conflict Concerning Meaning of ``Intervening Arrest''
in Sec. 4A1.2(a)(2)
Part B of the amendment addresses a circuit conflict over whether a
traffic stop is an ``intervening arrest'' for purposes of determining
whether multiple prior sentences should be ``counted separately or
treated as a single sentence'' when assigning criminal history points
(``single-sentence rule'') under Sec. 4A1.2(a)(2).
The Third, Sixth, Ninth, and Eleventh Circuits have held that a
formal, custodial arrest is required, and that a citation or summons
following a traffic stop does not qualify. See United States v. Ley,
876 F.3d 103, 109 (3d Cir. 2017); United States v. Rogers, 86 F.4th
259, 264-65 (6th Cir. 2023); United States v. Leal-Felix, 665 F.3d
1037, 1041-42 (9th Cir. 2011) (en banc); United States v. Wright, 862
F.3d 1265, 1282 (11th Cir. 2017). By contrast, the Seventh Circuit has
adopted a broad view of the term, holding that a traffic stop amounts
to an intervening arrest. See United States v. Morgan, 354 F.3d 621,
624 (7th Cir. 2003).
After reviewing public comment and testimony, the Commission
determined that a traffic stop should not be considered an
``intervening arrest'' for purposes of the single-sentence rule. The
amendment revises Sec. 4A1.2(a)(2) to include that clarification.

2. Amendment

Part A (Application of Mitigating Role Adjustment in Drug Trafficking
Cases)

Subpart 1 (Mitigating Role Provisions at Sec. 2D1.1(a)(5))
Section 2D1.1(a)(5) is amended by striking ``the offense level
specified in the Drug Quantity Table set forth in subsection (c),
except that if (A) the defendant receives an adjustment under Sec.
3B1.2 (Mitigating Role); and (B) the base offense level under
subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or
level 36, decrease by 3 levels; or (iii) level 38, decrease by 4
levels. If the resulting offense level is greater than level 32 and the
defendant receives the 4-level (`minimal participant') reduction in
Sec. 3B1.2(a), decrease to level 32'' and inserting ``the offense
level specified in the Drug Quantity Table set forth in subsection (c),
except that if (A) the defendant receives an adjustment under Sec.
3B1.2 (Mitigating Role); and (B) the base offense level under
subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34,
decrease by 3 levels; or (iii) above level 34, decrease to level 32. If
the resulting offense level is greater than level 30 and the defendant
receives the 4-level reduction in Sec. 3B1.2(a), decrease to level
30''.
Section 2D1.1(b)(17) is amended by striking ``(`minimal
participant')''.
Subpart 2 (Special Instruction Relating to Sec. 3B1.2)
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) Application of Sec. 3B1.2 (Mitigating Role) to Sec. 2D1.1
Cases
(A) Determine whether an adjustment under Sec. 3B1.2 (Mitigating
Role) applies.
(B) In addition to the circumstances identified in Sec. 3B1.2, an
adjustment under Sec. 3B1.2 is generally warranted if the defendant's
primary function in the offense was performing a low-level trafficking
function.
(i) An adjustment under Sec. 3B1.2(a) is generally warranted if
the defendant's primary function in the offense was plainly among the
lowest level of drug trafficking functions, such as serving as a
courier, running errands, sending or receiving phone calls or messages,
or acting as a lookout; or
(ii) an adjustment under Sec. 3B1.2(b) is generally warranted if
the defendant's primary function in the offense was performing another
low-level trafficking function, such as distributing controlled
substances in user-level quantities for little or no monetary
compensation or with a primary motivation other than profit (e.g., the
defendant was otherwise unlikely to commit such an offense and was
motivated by an intimate or familial relationship, or by threats or
fear to commit the offense).
For purposes of subsection (e)(2)(B), the provisions of Sec. 3B1.2
apply in determining whether a mitigating role adjustment is warranted,
except that the adjustment shall apply regardless of whether the
offense involved other participants in addition to the defendant, and
regardless of whether the defendant was substantially less culpable
than the average participant in the criminal activity. The extent of
the adjustment shall be based on the totality of the circumstances and
involves a determination that is heavily dependent upon the facts of
the particular case.
(C) The mitigating role provisions at subsection (a)(5) and the 2-
level reduction at subsection (b)(17) apply regardless of whether the
defendant receives the required adjustment from Sec. 3B1.2 (Mitigating
Role) by direct application of Sec. 3B1.2 or by use of the special
instruction in subsection (e)(2)(B).''.
The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is
amended 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.''.

[[Page 19801]]

Part B (Representing or Marketing Fentanyl or a Fentanyl Analogue as a
Legitimately Manufactured Drug)

Section 2D1.1(b)(13)(B) is amended by striking ``and acted with
willful blindness or conscious avoidance of knowledge that such mixture
or substance was not the legitimately manufactured drug'' and inserting
``with reckless disregard that such mixture or substance was not the
legitimately manufactured drug''.
Reason for Amendment: This two-part amendment is the result of
Commission study on the operation of Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy). As part of its study, the Commission considered feedback
from the field, including at a roundtable discussion on drug
sentencing, a public hearing, and public comment. The Commission also
analyzed a range of drug trafficking sentencing data, including data on
sentences imposed at the highest base offense levels, the application
of the ``mitigating role cap'' and mitigating role adjustment,
sentences imposed based on function, and the application of
enhancements in fentanyl and fentanyl analogue cases. The Commission
determined that targeted changes were warranted to ensure appropriate
penalties commensurate with an individual's function in a drug
trafficking offense and to better address the harms of representing or
marketing fentanyl or a fentanyl analogue as a legitimately
manufactured drug.
Part A--Application of Mitigating Role Adjustment in Drug Trafficking
Cases
Part A of the amendment contains two subparts to address concerns
that Sec. 2D1.1 and Sec. 3B1.2 (Mitigating Role) as they currently
apply in tandem do not adequately account for the lower culpability of
individuals performing low-level functions in a drug trafficking
offense.
Subpart 1 (Mitigating Role Provisions at Sec. 2D1.1(a)(5))
Subpart 1 of Part A amends the mitigating role provisions in Sec.
2D1.1(a)(5) to refine the drug trafficking guideline in cases where an
individual receives an adjustment under Sec. 3B1.2. The Commission
initially added the mitigating role cap to ``somewhat limit[ ] the
sentencing impact of drug quantity for offenders who perform relatively
low level trafficking functions.'' USSG App. C, amend. 640 (effective
Nov. 1, 2002). As previously amended, Sec. 2D1.1(a)(5) provided a
graduated 2-, 3-, or 4-level decrease, depending on the base offense
level under Sec. 2D1.1(c), when a defendant received a mitigating role
adjustment under Sec. 3B1.2. USSG App. C, amend. 668 (effective Nov.
1, 2004).
This amendment maintains the approach of graduated decreases
depending on the base offense level but amends Sec. 2D1.1(a)(5) in two
ways. First, it sets a mitigating role cap at level 32 if the defendant
receives an adjustment under Sec. 3B1.2 and has a base offense level
above 34. Second, if the defendant has a resulting offense level
greater than 30 and receives a 4-level adjustment under Sec. 3B1.2(a),
then a mitigating role cap of 30 applies.
As explained further below in Subpart 2, the mitigating role
provisions in Sec. 2D1.1(a)(5) and the 2-level reduction at Sec.
2D1.1(b)(17) apply regardless of whether the defendant receives the
required adjustment from Sec. 3B1.2 by direct application of Sec.
3B1.2 or by use of the new special instruction in Sec. 2D1.1(e)(2)(B).
Thus, the amendment deletes the phrase ``minimal participant'' from
Sec. 2D1.1(a)(5) and Sec. 2D1.1(b)(17) to clarify that those
provisions are triggered regardless of whether a defendant receives a
4-level reduction by direct application of Sec. 3B1.2(a) or by use of
the new special instruction in Sec. 2D1.1(e)(2)(B).
Subpart 2 (Special Instruction Relating to Sec. 3B1.2)
Subpart 2 of Part A adds a new special instruction at Sec.
2D1.1(e) to address the inconsistent application of Sec. 3B1.2 in
Sec. 2D1.1 cases and to encourage broader use of Sec. 3B1.2 in these
cases.
Section 3B1.2 provides a range of reductions depending on the
defendant's role in the criminal activity. Subsection (a) sets forth a
4-level reduction if the defendant was a ``minimal participant in any
criminal activity.'' Subsection (b) sets forth a 2-level reduction if
the defendant was ``a minor participant in any criminal activity.''
Section 3B1.2 also provides for a 3-level reduction where the case
``fall[s] between (a) and (b).''
The Commission previously amended the Commentary to Sec. 3B1.2 to
increase its usage (see, e.g., USSG App. C, amend. 794 (effective Nov.
1, 2015)). However, Commission data shows that the prior amendment did
not result in a sustained increase in application of the mitigating
role adjustment in Sec. 2D1.1 cases. Commission data show that when
Sec. 3B1.2 is applied in Sec. 2D1.1 cases, the vast majority of these
cases receive only a 2-level reduction; 3- and 4-level reductions are
rarely applied. Furthermore, Commission data shows variations across
districts in application of Sec. 3B1.2 to Sec. 2D1.1 cases. The new
special instruction at Sec. 2D1.1(e) addresses the application of
Sec. 3B1.2 to Sec. 2D1.1 cases as follows.
The amendment expands the circumstances in which an adjustment
under Sec. 3B1.2 is warranted in Sec. 2D1.1 cases by instructing
courts that an adjustment is generally warranted if the defendant's
``primary function'' in the offense was performing a low-level
trafficking function. Section 2D1.1(e)(2)(A) directs the court to
determine whether an adjustment under Sec. 3B1.2 applies as a court
already does under the Guidelines Manual. Section 2D1.1(e)(2)(B) then
provides that, in addition to the circumstances identified in Sec.
3B1.2, an adjustment under Sec. 3B1.2 is generally warranted if the
defendant's primary function in the offense was performing a low-level
trafficking function. Thus, a defendant sentenced under Sec. 2D1.1 may
qualify for a mitigating role adjustment under Sec. 3B1.2 by direct
application of that adjustment or by use of the special instruction in
Sec. 2D1.1(e)(2)(B).
To ensure courts focus on a defendant's predominant trafficking-
related activities, the Commission selected ``primary function'' to
guide courts in determining whether an adjustment is appropriate. Due
to the wide variety of functions performed by individuals in drug
trafficking offenses, the examples listed in Sec. 2D1.1(e)(2)(B) are
illustrative rather than a definitive list.
To assist courts in determining the appropriate level of reduction,
the amendment provides examples of functions generally warranting an
adjustment under Sec. 3B1.2(a) and (b). Section 2D1.1(e)(2)(B)(i)
states that a four-level adjustment under Sec. 3B1.2(a) is generally
warranted if the defendant's primary function in the offense was
plainly among the lowest level of drug trafficking functions. It lists
as examples serving as a courier, running errands, sending or receiving
phone calls or messages, or acting as a lookout. Section
2D1.1(e)(2)(B)(ii) states that a two-level adjustment under Sec.
3B1.2(b) is generally warranted if the defendant's primary function in
the offense was another low-level trafficking function. It lists as
examples distributing controlled substances in user-level quantities
for little or no monetary compensation or with a primary motivation
other than profit (e.g., the defendant was otherwise unlikely to commit
such an offense and was motivated by an intimate or familial
relationship or by threats or fear to commit the offense).

[[Page 19802]]

The amendment places the special instruction in Sec. 2D1.1 instead
of Sec. 3B1.2 to highlight that the rules for determining Sec. 3B1.2
eligibility are different in Sec. 2D1.1 cases. For purposes of the
special instruction at Sec. 2D1.1(e)(2)(B), the provisions of Sec.
3B1.2 apply in determining whether a mitigating role adjustment is
warranted, with two exceptions: the amendment provides that the
adjustment shall apply regardless of whether the offense involved other
participants in addition to the defendant, and also regardless of
whether the defendant was substantially less culpable than the average
participant in the criminal activity. The Commission determined that
these two provisions in the Commentary to Sec. 3B1.2 may discourage a
court from applying a mitigating role adjustment in single-defendant
drug trafficking cases or drug trafficking cases where the defendant
performed a similar low-level function as other participants in the
criminal activity, but an adjustment may nevertheless be appropriate.
Accordingly, the Commission concluded that these provisions shall not
apply in assessing whether a mitigating role adjustment is warranted
based on a defendant's low-level function in a drug trafficking
offense.
The amendment specifies that the mitigating role provisions in
Sec. 2D1.1(a)(5) and the 2-level reduction at Sec. 2D1.1(b)(17) apply
regardless of whether the defendant receives the Sec. 3B1.2 adjustment
by direct application of Sec. 3B1.2 or by use of the special
instruction in Sec. 2D1.1(e)(2)(B). This instruction ensures that any
individual who receives a mitigating role adjustment, regardless of the
mechanism, may also receive the reductions in Sec. 2D1.1(a)(5) and
Sec. 2D1.1(b)(17).
Part B--Representing or Marketing Fentanyl or a Fentanyl Analogue as a
Legitimately Manufactured Drug
Part B of the amendment changes the mens rea requirement in Sec.
2D1.1(b)(13)(B). In light of the continuing danger associated with the
misrepresentation of fake prescription pills containing fentanyl or a
fentanyl analogue, the Commission addressed concerns that the mens rea
requirement was vague and difficult to apply.
Section 2D1.1(b)(13)(A) provides a 4-level increase when the
defendant knowingly misrepresented or knowingly marketed as another
substance a mixture or substance containing fentanyl or a fentanyl
analogue. The Commission added this specific offense characteristic in
2018 in response to rising numbers of fentanyl and fentanyl analogue
cases. See USSG, App. C. amend. 807 (effective Nov. 1, 2018). In 2023,
the Commission added an alternative 2-level enhancement at Sec.
2D1.1(b)(13)(B) for offenses where the defendant represented or
marketed as a legitimately manufactured drug another mixture or
substance containing fentanyl or a fentanyl analogue, and acted with
willful blindness or conscious avoidance of knowledge that such mixture
or substance was not the legitimately manufactured drug. The Commission
added this specific offense characteristic based on the continued
increase in fentanyl and fentanyl analogue distribution and data
showing that most fake prescription pills seized containing fentanyl
had a potentially lethal dose of the substance. See USSG, App. C.
amend. 818 (effective Nov. 1, 2023).
The Commission received comment that Sec. 2D1.1(b)(13)(B) is being
applied inconsistently, in part, because the current mens rea
requirement has generated confusion. In particular, commenters have
urged the Commission to revise Sec. 2D1.1(b)(13)(B) because the mental
state of ``willful blindness or conscious avoidance of knowledge'' is
vague, and cases construe willful blindness as legally equivalent to
knowledge, causing uncertainty over when the enhancement should be
applied. The Commission further heard concerns about the continuing
dangers associated with representing or marketing fentanyl or a
fentanyl analogue as a legitimately manufactured drug.
Informed by those concerns, the amendment changes the mens rea
requirement in Sec. 2D1.1(b)(13)(B) from ``willful blindness or
conscious avoidance of knowledge'' to ``reckless disregard.''
3. Amendment: Section 2K2.1(b) is amended--
in paragraph (3)(B) by striking ``subdivision'' and inserting
``paragraph'';
by redesignating paragraphs (5) through (9) as paragraphs (6)
through (10), respectively;
by inserting after paragraph (4) the following new paragraph (5):
``(5) (Apply the Greatest) If the defendant--
(A)(i) possessed four or more machinegun conversion devices; or
(ii) transferred or sold any machinegun conversion device to another
person, or attempted or conspired to commit such a transfer or sale,
increase by 2 levels; or
(B) possessed 30 or more machinegun conversion devices, increase by
4 levels.
For purposes of subsection (b)(5), `machinegun conversion device'
means any part designed and intended solely and exclusively, or
combination of parts designed and intended, for use in converting a
weapon into a machinegun (i.e., any weapon which shoots, is designed to
shoot, or can be readily restored to shoot, automatically more than one
shot, without manual reloading, by a single function of the
trigger).'';
in the paragraph that begins ``The cumulative offense level'' by
striking ``(b)(4)'' and inserting ``(b)(5)'';
in paragraph (6) (as so redesignated), in the subparagraph that
begins ``Provided, however,'' by striking ``(b)(5)(C)(i)(I)'' and
inserting ``(b)(6)(C)(i)(I)'';
in paragraph (9)(A) (as so redesignated) by striking ``(b)(5)'' and
inserting ``(b)(6)'';
and in paragraph (10)(A) (as so redesignated) by striking
``(b)(5)'' and inserting ``(b)(6)''.
The Commentary to Sec. 2K2.1 caption ``Application Notes'' is
amended--
in Note 1, in the paragraph that begins `` `Firearm' has the
meaning'' by inserting after ``18 U.S.C. 921(a)(3)'' the following: ``,
unless otherwise specified'';
in Note 3 by striking ``(b)(5)'' and inserting ``(b)(6)'';
in Note 9 by striking ``Application of Subsection (b)(7).--Under
subsection (b)(7), if a record-keeping offense'' and inserting
``Application of Subsection (b)(8).--Under subsection (b)(8), if a
recordkeeping offense'';
in Note 13--
in the heading by striking ``(b)(5)'' and inserting ``(b)(6)'';
and in subparagraph (C) by striking ``(b)(5)'' and inserting
``(b)(6)''; and by striking ``(b)(6)(B)'' and inserting ``(b)(7)(B)'';
and in Note 14--
in the heading by striking ``(b)(6)(B)'' and inserting
``(b)(7)(B)'';
in subparagraph (A) by striking ``(b)(6)(B)'' and inserting
``(b)(7)(B)'';
in subparagraph (B) by striking ``(b)(6)(B)'' both places it
appears and inserting ``(b)(7)(B)'';
in subparagraph (C) by striking ``(b)(6)(B)'' and inserting
``(b)(7)(B)'';
and in subparagraph (E) by striking ``(b)(6)(B)'' each place it
appears and inserting ``(b)(7)(B)''.
The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is
amended in Note 4(A) in the paragraph that begins ``If the explosive''
by striking ``Sec. 2K2.1(b)(6)(B)'' both places it appears and
inserting ``Sec. 2K2.1(b)(7)(B)''.
Reason for Amendment: This amendment revises Sec. 2K2.1 (Unlawful

[[Page 19803]]

Receipt, Possession, or Transportation of Firearms or Ammunition;
Prohibited Transactions Involving Firearms or Ammunition), the primary
firearms guideline, to more fully account for machinegun conversion
devices (MCDs).
Commonly referred to as ``Glock switches'' and ``auto sears,'' MCDs
are devices designed to convert semi-automatic firearms into fully
automatic weapons. Under the National Firearms Act (NFA), the
definition of ``machinegun'' includes ``any part designed and intended
solely and exclusively, or combination of parts designed and intended,
for use in converting a weapon into a machinegun.'' 26 U.S.C. 5845(b).
An MCD therefore qualifies as a machinegun under federal law, and--as
in the case of other machineguns--federal law generally prohibits the
possession and transfer of such devices, with limited exceptions. See
18 U.S.C. 922(o).
As a technical matter, the definition of ``firearm'' is not uniform
throughout federal law. Because the NFA defines ``firearm'' to include
machineguns--and ``machinegun'' to include MCDs--MCDs qualify as
``firearms'' under the NFA definition at 26 U.S.C. 5845(a). By
contrast, MCDs are not firearms under the definition of that term
provided in the Gun Control Act (GCA), which is limited (as relevant)
to a weapon ``which will or is designed to or may readily be converted
to expel a projectile by the action of an explosive'' and ``the frame
or receiver of any such weapon.'' 18 U.S.C. 921(a)(3).
Prior to this amendment, Sec. 2K2.1 accounted for MCDs solely
through base offense levels. It provided certain enhanced base offense
levels for offenses involving NFA firearms, including MCDs. See USSG
Sec. 2K2.1(a)(1), (3), (4), (5). Although Sec. 2K2.1's base offense
levels specifically incorporated the NFA definition of firearm, the
remainder of Sec. 2K2.1 used the GCA definition. See USSG Sec. 2K2.1,
comment. (n.1). Therefore, MCDs did not trigger the specific offense
characteristics in Sec. 2K2.1. For example, if an individual were
convicted of a firearms offense in which he possessed one semi-
automatic firearm and five MCDs, an enhanced base offense level would
apply because the offense involved a firearm described in 26 U.S.C.
5845(a), see USSG Sec. 2K2.1(a)(1), (3), (4), (5), but there would be
no enhancement under the specific offense characteristic at Sec.
2K2.1(b)(1) for the number of MCDs possessed because MCDs are not
firearms under the GCA definition. See USSG Sec. 2K2.1(b)(1). For the
same reason, if the individual transferred the MCDs to another person,
this conduct would not support a trafficking enhancement under the
specific offense characteristic at Sec. 2K2.1(b)(5) the way the
transfer of a GCA firearm (or ammunition) would. See USSG Sec.
2K2.1(b)(5).
The Commission's amendment responds to concerns by the Department
of Justice and other commenters about the proliferation of MCDs, which
pose a heightened danger to the public because a weapon equipped with
an MCD fires more rapidly and with less control than an identical
weapon without an MCD. Of note, the Department of Justice pointed to a
570% rise in MCD recoveries in 2021 as compared to 2017 and to the
growing involvement of automatic gunfire reported in shootings.
Commission data similarly reflects a recent rise in firearms cases
involving MCDs. In fiscal year 2023, 4.5 percent of cases sentenced
under Sec. 2K2.1 involved an MCD--an increase from one percent of
Sec. 2K2.1 cases in fiscal year 2019. While most cases involving MCDs
in fiscal year 2023 involved a single MCD, more than 18 percent
involved four or more devices. In addition, in more than 25 percent of
Sec. 2K2.1 cases involving MCDs, the sentenced individual transferred
at least one MCD to another person.
To address these concerns and in recognition that MCDs pose
different risks than functional firearms, the amendment establishes a
new tiered specific offense characteristic at Sec. 2K2.1(b)(5) for
cases involving MCDs. New subsection (b)(5)(A) provides a two-level
enhancement when a defendant (i) possessed four or more MCDs or (ii)
transferred or sold an MCD or attempted or conspired to commit such a
transfer or sale. New subsection (b)(5)(B) provides a four-level
enhancement when a defendant possessed 30 or more MCDs. The amendment
includes a definition of ``machinegun conversion device'' consistent
with the NFA's statutory definition at 26 U.S.C. 5845(b). To tailor the
enhancement to the most culpable conduct, the Commission determined
that it should apply only to the acts of the defendant. The Commission
also concluded that the new specific offense characteristic should be
subject to the offense level cap in Sec. 2K2.1. The amendment revises
the cap to provide that the cumulative offense level may not exceed
level 29 after application of subsections (b)(1) through the new
subsection (b)(5), unless subsection (b)(3)(A) applies.
The amendment also includes conforming changes, including to the
Commentary to Sec. 2K2.1 and Sec. 2K2.4 (Use of Firearm, Armor-
Piercing Ammunition, or Explosive During or in Relation to Certain
Crimes), to address the renumbering of the prior Sec. 2K2.1(b)(5)
through (9).
4. Amendment: 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 in Note 5 by striking the following:
``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.'';
and by inserting the following:
``Treatment and Monitoring.--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.''.
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
subparagraphs (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

[[Page 19804]]

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 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, 709 (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 . . . . 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 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 in open court the reasons for imposing
or not imposing a term of supervised release. See 18 U.S.C. 3553(c).''.
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;
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));

[[Page 19805]]

(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.
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.'';
and by inserting at the end the following new Note 7:
``7. Evidence-Based Recidivism Reduction Programming.--Whether a
defendant's sentence includes a term of supervised release may impact
the application of time credits earned by the defendant under the First
Step Act of 2018, Pub. L. 115-391. The First Step Act of 2018 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). Regarding the application of
those time credits, the First Step Act of 2018 provides: `If 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).''.
Section 5D1.2 is amended--
by striking subsections (a), (b), and (c) 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.
(c) The term of supervised release imposed shall be not less than
any statutorily required term of supervised release.'';
and by inserting the following new subsections (a) and (b):
``(a) If a term of supervised release is ordered, the court shall
conduct an individualized assessment to determine the length of the
term, which shall not be less than any statutorily required minimum
term. Except as otherwise provided by statute, the maximum term of
supervised release is as follows:
(1) 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) 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) Not more than one year for a defendant convicted of a Class E
felony or a misdemeanor (other than a petty offense). See 18 U.S.C.
3583(b)(3).
(b) The court should state in open court the reasons for the length
of the term imposed. See 18 U.S.C. 3553(c).''.
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 striking Notes 4, 5, and 6 as follows:
``4. Factors Considered.--The factors to be considered in
determining the length of a term of supervised release are the same as
the factors considered in determining whether to impose such a term.
See 18 U.S.C. 3583(c); Application Note 3 to Sec. 5D1.1 (Imposition of
a Term of Supervised Release). The court should ensure that the term
imposed on the defendant is long enough to address the purposes of
imposing supervised release on the defendant.
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

[[Page 19806]]

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.'';
by redesignating Notes 2 and 3 as Notes 4 and 5, respectively;
by inserting at the beginning the following new Notes 1, 2, and 3:
``1. Individualized Assessment.--When conducting an individualized
assessment to determine the length of a term of supervised release, the
factors to be considered are the same as the factors considered in
determining whether to impose such a term. See 18 U.S.C. 3583(c);
Application Note 1 to Sec. 5D1.1 (Imposition of a Term of Supervised
Release). The court should ensure that the term imposed on the
defendant is sufficient, but not greater than necessary, to address the
purposes of imposing supervised release on the defendant.
2. Terrorism and Sex Offenses.--Congress has authorized a term of
supervised release that exceeds the maximum terms described in
subsection (a) for certain serious offenses. See 18 U.S.C. 3583(j),
(k). For certain terrorism offenses, the authorized term of supervised
release is any term of years or life. 18 U.S.C. 3583(j). For certain
sex offenses, the authorized term of supervised release is any term of
years not less than five, or up to life. 18 U.S.C. 3583(k).
3. Drug Offenses.--For certain drug offenses, Congress has
established statutory minimum terms of supervised release. See, e.g.,
21 U.S.C. 841(b), 960(b) (providing minimum terms of supervised release
depending on drug type and quantity and criminal history).'';
in Note 4 (as so redesignated) by striking ``shall be determined''
and inserting ``is determined'';
in Note 5 (as so redesignated) by striking ``or the guidelines'';
and by inserting at the end the following new Note 6:
``6. 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 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), (d), and (e) 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

[[Page 19807]]

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 (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

[[Page 19808]]

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 at the end 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' Conditions (Policy Statement)
The following are `standard' conditions of supervised release,
which the court may modify, expand, or omit in appropriate cases:
(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
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 therein:
(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

[[Page 19809]]

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.
(iv) A condition prohibiting the defendant from communicating, or
otherwise interacting, with any victim of the offense, either directly
or through someone else.
(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) Educational or Vocational Training
If the court has reason to believe that a course of study or
vocational training would be appropriate and would equip the defendant
for suitable employment, a condition specifying that the defendant
participate in a General Education Development (or similar) program,
vocational training, or skills training, unless the probation officer
excuses the defendant from doing so.
(J) Victim Contact
If there is an identifiable victim of the offense, a condition
prohibiting the defendant from communicating, or otherwise interacting,
with any of the victims, either directly or through someone else.
(K) 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).
(L) 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).
(M) Community Service
Community service may be imposed as a condition of supervised
release. See Sec. 5F1.3 (Community Service).
(N) Occupational Restrictions
Occupational restrictions may be imposed as a condition of
supervised release. See Sec. 5F1.5 (Occupational Restrictions).
(O) 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.
(P) 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 Note'' 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 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
subparagraphs (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
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 in consultation with
the probation officer 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 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 in the interest of justice. See 18 U.S.C. 3583(e)(1).
(c) Extending a Term of Supervised Release.--The court may, at any
time prior to the expiration or termination of

[[Page 19810]]

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.--
(A) In General.--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).
(B) Early Termination.--When determining whether to terminate the
remaining term of supervised release under subsection (b), the court
may wish to consider such factors as:
(i) any history of court-reported violations over the term of
supervision;
(ii) the ability of the defendant to lawfully self-manage (e.g.,
the ability to problem-solve and avoid situations that may result in a
violation of a condition of supervised release or new criminal
charges);
(iii) the defendant's substantial compliance with all conditions of
supervision;
(iv) the defendant's engagement in appropriate prosocial activities
and the existence or lack of prosocial support to remain lawful beyond
the period of supervision;
(v) a demonstrated reduction in risk level or maintenance of the
lowest category of risk over the period of supervision; and
(vi) 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.
2. Notification of Victims.--When determining whether to modify any
condition of supervised release that would be relevant to a victim or
to terminate the remaining term of supervised release, the Commission
encourages the court, in coordination with the government, to ensure
that any victim of the offense is reasonably, accurately, and timely
notified, and provided, to the extent practicable, with an opportunity
to be reasonably heard, unless any such victim previously requested not
to be notified.
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 term of supervised release.''.
The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is
amended in Note 4(C) by striking ``Application Note 4 and subsection
(f) of Sec. 7B1.3 (Revocation of Probation or Supervised Release)''
and inserting ``Application Note 3 and subsection (f) of Sec. 7B1.3
(Revocation of Probation)''.
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 or abuse'' by striking ``Sec. 5D1.3(d)(4)'' and
inserting ``Sec. 5D1.3(b)(3)(D)''.
Chapter Seven, Part A is amended--
in Subpart 1 by striking the following:
``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 the following:
``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. The Commission chose to promulgate
policy statements only. These policy 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 striking
``debated'' and inserting ``initially debated'';
and in the paragraph that begins ``Given the relatively narrow
ranges'' by striking ``this time'' and inserting ``that time'';
in Subpart 4--
in the paragraph that begins ``The revocation policy statements''
by striking ``categorize'' and inserting ``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.'';

[[Page 19811]]

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 had an opportunity
to apply and comment on the policy statements. 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 reports
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 all the goals of sentencing, including punishment,
supervised release primarily `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 heading by striking ``Probation and Supervised Release
Violations'' and inserting ``Violations of Probation'';
and 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. 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 ``(A) revoke probation or
supervised release; or (B) extend the term of probation or supervised
release and/or modify the conditions of supervision'' and inserting
``(A) 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

[[Page 19812]]

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 Sec. 5F1.8 (Intermittent
Confinement)'' and inserting ``; see also Sec. 5F1.8 (Intermittent
Confinement)''.
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'';
and 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 inserting 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 the following:
``The criminal history category to be used in determining the
applicable range of imprisonment in the 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 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.)'';
and inserting the following:
``The criminal history category to be used in determining the
applicable range of imprisonment in the Probation Revocation Table is
the category determined at the time the defendant originally was
sentenced to the term of probation. The criminal history category is
not to be recalculated because the ranges set forth in the Probation
Revocation Table have been designed to take into account that the
defendant violated probation. Example: A defendant, who was originally
sentenced in 2022, was determined to have a criminal history category
of II due in part to having committed the offense `while under any
criminal justice sentence.' See Sec. 4A1.1(d) (Criminal History
Category) (Nov. 2021). For purposes of determining the applicable range
of imprisonment in the Probation Revocation Table, the defendant's
criminal history category is category II, regardless of whether the
defendant's criminal history category would be reduced for other
purposes based on the retroactive application of Part A of Amendment
821 pursuant to Sec. 1B1.10 (Reduction of Imprisonment as a Result of
Amended Guideline Range (Policy Statement)). See USSG App. C, Amendment
825 (effective November 1, 2023).
In the rare case in which no criminal history category was
determined when the defendant originally was sentenced to the term of
probation 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 probation. (See the criminal
history provisions of Sec. Sec. 4A1.1-4B1.4.)'';
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 ``under 18 U.S.C. 3565(b) and 3583(g). 18
U.S.C. 3563(a), 3583(d)'' and inserting ``under 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--Violations of Supervised Release
Introductory Commentary
At the time of original sentencing, the court may--and in some
cases, must--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 defendant has violated a condition of
supervision. In 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

[[Page 19813]]

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
appropriate, 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) 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 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. Sec. 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 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 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) Report of Non-Compliance.--Upon receiving a report 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.
(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)), the
court shall revoke supervised release. Upon a finding of any other
violation, the court should conduct an individualized assessment,
taking into consideration the grade of the violation, to determine
whether to revoke supervised release. Revocation is generally
appropriate for a Grade A violation, often appropriate for a Grade B
violation, and may be appropriate for a Grade C violation.
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 1
to Sec. 5D1.1 (Imposition of a Term of Supervised Release).
2. Responses.--Upon a report of non-compliance or a finding of a
violation, the court may take any appropriate action provided under 18
U.S.C. Sec. 3583, which includes extension, modification, revocation,
or termination of supervised release. If revocation is not statutorily
required, the court may also consider an informal response, such as
issuing a warning while maintaining supervised release without
modification, continuing the violation hearing to

[[Page 19814]]

provide the defendant time to come into compliance, or directing the
defendant to additional resources needed to come into compliance.
3. Issuing Summons.--If the defendant's presence in court is
required to address a report of non-compliance, the court should
consider issuing a summons rather than an arrest warrant where
appropriate.

Sec. 7C1.4. Revocation of Supervised Release (Policy Statement)

(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 generally 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.
(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 C................................................. 3-9 4-10 5-11 6-12 7-13 8-14
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. Example: A defendant,
who was originally sentenced in 2022, was determined to have a criminal
history category of II due in part to having committed the offense
`while under any criminal justice sentence.' See Sec. 4A1.1(d)
(Criminal History Category) (Nov. 2021). For purposes of determining
the applicable range of imprisonment in the Supervised Release
Revocation Table, the defendant's criminal history category is category
II, regardless of whether the defendant's criminal history category
would be reduced for other purposes based on the retroactive
application of Part A of Amendment 821 pursuant to Sec. 1B1.10
(Reduction of Imprisonment as a Result of Amended Guideline Range
(Policy Statement)). See USSG App. C, Amendment 825 (effective November
1, 2023).
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. 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

[[Page 19815]]

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.
3. In the case of a Grade C violation that is associated with a
high risk of new felonious conduct (e.g., a defendant, under 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.
4. Where the original sentence was the result of a downward
departure (e.g., as a reward for substantial assistance), or a charge
reduction that resulted in a sentence below the guideline range
applicable to the defendant's underlying conduct, an upward departure
may be warranted.
5. 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).
6. 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.''.
Reason for Amendment: This amendment updates the Guidelines
Manual's approach to supervised release by revising Part D (Supervised
Release) of Chapter Five (Determining the Sentence) and Chapter Seven
(Violations of Probation and Supervised Release).
The Sentencing Reform Act of 1984 established ``supervised
release'' as a tool a court could use to impose post-release
supervision on a defendant sentenced to a term of imprisonment. See 18
U.S.C. 3583. The primary goal 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 . . . but still needs supervision and training programs after
release.'' S. Rep. No. 225, 98th Cong., 1st Sess. 54 (1983). Supervised
release also functions as an important tool to promote public safety.
See 18 U.S.C. 3583(c), 3553(a)(2)(C).
While statutes mandate the imposition and minimum length of
supervised release in some cases, courts generally have discretion to
determine whether to impose supervised release, to set its length and
conditions, modify those conditions, and to extend, revoke, or
terminate the term. In making these decisions, the Act requires courts
to examine a set of factors similar, but not identical, to those
considered when imposing a sentence. Compare 18 U.S.C. 3553(a) with 18
U.S.C. 3583(c)-(e).
In November 2024, the Commission held a roundtable on supervised
release attended by judges, retired federal probation officers,
providers of reentry services, academics, federal probation, government
and defense community representatives, and a reentry program graduate.
The Commission also received extensive public comment and testimony
from members of Congress, the Committee on Criminal Law of the Judicial
Conference of the United States, the Department of Justice, the Federal
Public and Community Defenders, the Commission's advisory groups, law
professors, currently and formerly incarcerated individuals, and other
criminal justice system stakeholders.
The amendment makes several overarching changes in response to this
feedback and consistent with the statutory purposes and framework.
First, it emphasizes the importance of judges making individualized
decisions about supervised release at all relevant stages--including
imposition, modification or extension, and revocation. Second, it
underscores the authority of courts, in consultation with the probation
officer, to reassess supervised release decisions after a defendant's
release from imprisonment, including decisions about the length and
conditions of supervision. Third, it underscores the rehabilitative
purposes of supervised release by dividing the provisions addressing
violations of probation and violations of supervised release into
separate parts of Chapter Seven and providing courts with greater
discretion to respond to a violation of a condition of supervised
release, including where appropriate, through alternatives to
revocation and imprisonment.
The amendment's specific changes to Chapters Five and Seven are
discussed further below.
Chapter Five, Part D (Supervised Release)
The amendment revises Chapter Five, Part D of the Guidelines Manual
to provide courts with greater discretion to impose a term of
supervised release that is appropriate for the individual defendant.
The amendment adds Introductory Commentary, revises each existing
guideline, and adds a new policy statement at Sec. 5D1.4, which
addresses extending or terminating supervised release or modifying the
conditions thereof.
Introductory Commentary
The amendment adds Introductory Commentary to Part D of Chapter
Five emphasizing that supervised release is intended to ease a
defendant's transition into the community, provide needed
rehabilitation, and promote public safety. It highlights the importance
of conducting an individualized assessment to determine whether a
defendant needs supervision and how to appropriately tailor the term
and conditions, as required by 18 U.S.C. 3583(c).

[[Page 19816]]

Sec. 5D1.1 (Imposition of a Term of Supervised Release)
The amendment revises Sec. 5D1.1 to provide greater judicial
discretion in determining whether any term of supervised release is
warranted. The amendment removes the requirement to impose supervised
release whenever the sentence of imprisonment is more than one year and
instead requires supervised release only when mandated by statute. In
any other case, ``the court should order a term of supervised release
when warranted by an individualized assessment of the need for
supervision.'' Application Note 1 defines the ``individualized
assessment'' by reference to the 18 U.S.C. 3553(a) factors that courts
must consider under 18 U.S.C. 3583(c). The Commentary to Sec. 5D1.1
continues to instruct courts to consider the defendant's criminal
history, substance abuse history, and history of domestic violence in
determining whether to impose a term of supervised release.
These changes respond to widespread concern that supervised release
often is ordered reflexively, potentially diverting supervision
resources from individuals who most need them. Commission data shows
that courts currently impose supervised release in most cases (82.5%).
This focus on an individualized assessment aims to ``assure that
[individuals] 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,'' as Congress
intended. See S. Rep. No. 225, 98th Cong., 1st Sess. 54 (1983).
The amendment also adds new Sec. 5D1.1(d), which instructs that
``the court should state in open court the reasons for imposing or not
imposing a term of supervised release,'' consistent with 18 U.S.C.
3553(c).
Finally, it adds new Application Note 7, which alerts courts to the
fact that the decision whether to impose a term of supervised release
could affect subsequent application of First Step Act earned time
credits.
Sec. 5D1.2 (Term of Supervised Release)
The amendment revises Sec. 5D1.2 to provide courts with greater
discretion in determining the appropriate length of the term of
supervised release. It removes the recommended minimum terms by class
of offense from Sec. 5D1.2(a) and instead instructs the court to
conduct an individualized assessment to determine the length of the
term, which shall be not less than any statutorily required minimum
term. It continues to list the maximum terms of supervised release by
offense class, noting that some statutes may provide for a different
term. Application Note 1 provides that the factors considered for
purposes of determining the length of the term are the same as the
factors considered in determining whether to impose a term and--
consistent with 18 U.S.C. 3583(c) and 3553(a)--instructs that the court
should ensure the term ``is sufficient, but not greater than necessary,
to address the purposes of imposing supervised release on the
defendant.''
Similar to the changes made to Sec. 5D1.1, the amendment adds a
new instruction to Sec. 5D1.2 that ``the court should state in open
court the reasons for the length of the term imposed.''
Additionally, the amendment removes the policy statement
recommending the statutory maximum term of supervised release for sex
offense cases. Although imposition of a statutory maximum term may be
warranted in certain cases, the amendment leaves the appropriate term
to the court's discretion. As a related change, the amendment deletes a
similar maximum-term recommendation in the Commentary to Sec. 4B1.5
(Repeat and Dangerous Sex Offender Against Minors), but it continues to
recommend that treatment and monitoring be considered as special
conditions of supervised release for individuals sentenced under that
guideline.
Finally, in Application Notes 2 and 3, the amendment advises that
Congress has authorized higher statutory maximum and/or minimum terms
of supervised release for certain terrorism and sex offenses and for
some drug offenses.
Sec. 5D1.3 (Conditions of Supervised Release)
Section 5D1.3 sets forth mandatory and discretionary conditions of
supervised release. Discretionary conditions currently are further
subdivided into ``standard,'' ``special,'' and additional conditions.
The amendment restructures and revises the discretionary conditions of
supervised release in four ways. First, it adds a general instruction
at Sec. 5D1.3(b)(1), which provides that the court ``should conduct an
individualized assessment to determine what, if any,'' discretionary
conditions are warranted. Second, in Sec. 5D1.3(b)(2), it removes the
instruction that ``standard'' conditions ``are recommended for
supervised release'' and instead clarifies that they ``may be modified,
omitted, or expanded in appropriate cases.'' Third, in Sec.
5D1.3(b)(3), it removes the recommendation of imposing ``special''
conditions for listed circumstances and instead provides that ``[o]ne
or more conditions from the . . . non-exhaustive list of `special
conditions' may be appropriate in a particular case, including'' the
described circumstances. Fourth, it removes the ``additional
conditions'' subheading and incorporates those conditions into the list
of ``special'' conditions in Sec. 5D1.3(b)(3).
These changes emphasize that any standard, special, or other
discretionary conditions of supervised release--i.e., those not
required by statute--should be imposed only when warranted by an
individualized assessment, reflecting the requirements of 18 U.S.C.
3583(d) and feedback that certain conditions are at times imposed by
default. The Commission nonetheless recognizes the value of a list of
``standard'' conditions that establish basic behavioral expectations
and facilitate probation officers' supervision. Accordingly, the
amendment maintains the list of ``standard'' conditions without change
but notes the court's authority to impose and adjust them as
appropriate.
The amendment also adds three ``special'' conditions in response to
commenters' concerns about cases where victims need special protection
and cases where defendants could benefit from educational programs. The
revised Sec. 5D1.3 lists the following as ``special'' conditions: (1)
a condition prohibiting the defendant from interacting with any victim
if the instant conviction is a sex offense; (2) a condition prohibiting
the defendant from interacting with any identifiable victim, applicable
to all offenses generally; and (3) a condition that the defendant
participate in a General Education Development (or similar) program,
vocational training, or skills training if the court has reason to
believe it would be appropriate and would equip the defendant for
suitable employment.
New Sec. 5D1.4 (Modification, Early Termination, and Extension of
Supervised Release (Policy Statement))
The Commission sought to address with this amendment potential
issues surrounding the fact that the terms and conditions of supervised
release are imposed at original sentencing, often years before the
defendant begins supervision. People and their circumstances may change
in and after prison, such that the original term and conditions may no
longer be appropriate after the defendant's release. Courts are
encouraged to consider modifying the terms and conditions of supervised

[[Page 19817]]

release whenever changed individual circumstances so warrant.
While Commentary to Sec. 5D1.2 previously noted the court's
authority to terminate or extend supervised release and encouraged
courts to ``exercise this authority in appropriate cases,'' the
amendment adds a new policy statement at Sec. 5D1.4 to more directly
address a court's statutory authority to modify conditions or to
terminate or extend the term of supervised release.
Subsection (a) (Modification of Conditions) restates the court's
authority under 18 U.S.C. 3583(e)(2) to modify, reduce, or enlarge the
conditions of supervised release and encourages the court to conduct an
individualized assessment, in consultation with the probation officer,
to determine whether any change to the conditions is warranted after a
defendant's release from imprisonment. The Commission received feedback
that while probation officers often meet with defendants approaching
and after their release, judicial involvement varies by jurisdiction
and individual court practice. The Commission believes that more
consistent judicial participation in revisiting the conditions of
supervised release will facilitate successful reintegration, increase
compliance, and promote public safety, and, therefore, it is encouraged
as a best practice.
To encourage appropriate use of early termination, subsection (b)
(Early Termination) restates the court's authority under 18 U.S.C.
3583(e)(1) to terminate the remaining term of supervision any time
after one year of supervised release if the court determines, following
consultation with the government and the probation officer, that
termination is warranted by the conduct of the defendant and in the
interest of justice. Application Note 1(B) specifies factors a court
might consider in determining whether to terminate the remaining term
of supervised release, which are modeled in part after the factors in
the Guide to Judiciary Policy, Vol. 8E, Ch. 3, Sec. 360.20.
Considering early termination at appropriate intervals will help ensure
that resources are allocated to the individuals most in need of
continued supervision and that the term is ``sufficient, but not
greater than necessary'' to fulfill the purposes of imposing
supervision. See 18 U.S.C. 3583(c); 18 U.S.C. 3553(a); USSG Sec. 5D1.2
comment. (n.1) (as revised by this amendment).
Subsection (c) (Extending a Term of Supervised Release) provides
that the court may extend the term of supervised release any time
before the expiration of a term if less than the maximum term was
imposed and extension is warranted by an individualized assessment of
the need for further supervision. Application Note 3 notes that
extending a term may be more appropriate than revoking a term of
supervised release in some cases.
Application Note 2 encourages the court, in coordination with the
government, to ensure that any victim 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.
Conforming Changes
The amendment also makes conforming changes to Sec. 1B1.10
(Reduction in Term of Imprisonment as a Result of Amended Guideline
Range (Policy Statement)), 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)).
Chapter Seven (Violations of Probation and Supervised Release)
The amendment revises Chapter Seven of the Guidelines Manual in two
main ways to underscore the different purposes of probation and
supervised release. First, it divides Chapter Seven into Part B
(Violations of Probation) and Part C (Violations of Supervised Release)
to reflect that probation serves all the goals of sentencing, including
punishment, while supervised release primarily ``fulfills
rehabilitative ends, distinct from those served by incarceration.''
United States v. Johnson, 529 U.S. 53, 59 (2000). Second, it responds
to stakeholder feedback on the need for a more flexible, individualized
approach to supervised release violations by encouraging courts to
consider a graduated response to a defendant's non-compliant behavior.
Chapter Seven--Part A (Introduction to Chapter Seven)
The amendment revises the Introduction to Chapter Seven to explain
the Commission's updated approach that treats violations of probation
and supervised release differently. To highlight the primarily
rehabilitative purposes of supervised release, the new introductory
language encourages courts to consider graduated responses to non-
compliant behavior before revoking supervised release. The Commission
believes that a graduated approach will better allocate resources,
promote public safety, and facilitate the reentry and rehabilitation of
defendants on supervised release.
Chapter Seven--Part B (Violations of Probation)
The amendment removes references to supervised release from Chapter
Seven, Part B and adds an example to the commentary of Sec. 7B1.4
(criminal history calculation) that mirrors an addition to the
commentary of new Sec. 7C1.5. The provisions in Chapter Seven, Part B
are otherwise unchanged, reflecting the Commission's determination that
violations of probation and supervised release should be treated
differently.
Chapter Seven--Part C (Violations of Supervised Release), Introductory
Commentary
The amendment includes Introductory Commentary to new Part C of
Chapter Seven, which explains that in responding to a report of non-
compliance, addressing a violation found during revocation proceedings,
or imposing a sentence upon revocation, the court should conduct the
same kind of individualized assessment used when imposing supervised
release. The introduction highlights the Commission's view that courts
should consider a wide array of options to address violations of
supervised release and that any sentence imposed upon revocation should
be tailored to address the failure to abide by supervision conditions,
as imposition of an appropriate punishment for new criminal conduct is
not the primary goal of a revocation sentence.
New Sec. 7C1.1 (Classification of Violations (Policy Statement)) and
Sec. 7C1.2 (Reporting of Violations of Supervised Release (Policy
Statement))
The amendment duplicates Sec. Sec. 7B1.1 and 7B1.2 into new
Sec. Sec. 7C1.1 and 7C1.2 and retains the three existing grades of
supervised release violations.
Sec. 7C1.3 (Responses to Violations of Supervised Release (Policy
Statement))
New Sec. 7C1.3 identifies actions a court may take in response to
a report of non-compliance with supervised release conditions or a
finding of a violation. This new policy statement underscores the
importance of using a graduated response to non-compliant behavior.
Subsection (a) instructs the court to conduct an individualized
assessment to determine what, if any, response is appropriate to a
report of non-compliance. New Sec. 7C1.3(a) reflects feedback that
supervision is a dynamic process and often benefits from regular

[[Page 19818]]

communication between the defendant, the probation officer, and the
court.
Subsection (b) instructs the court to (1) revoke supervised release
upon a finding of a violation for which revocation is required by
statute, and (2) upon a finding of any other violation, conduct an
individualized assessment, taking into consideration the grade of the
violation, to determine whether to revoke supervised release for any
other violation. New Sec. 7C1.3(b) further provides that revocation is
generally appropriate for a Grade A violation, often appropriate for a
Grade B violation, and may be appropriate for a Grade C violation.
While revocation previously was required for both Grade A or B
violations--and Commission data shows similar rates of prison-only
revocations for both grades in recent years, see U.S. Sent'g Comm.,
Federal Probation and Supervised Release Violations 35 & Fig.13
(2020)--the amendment provides flexibility to assess the seriousness of
the underlying conduct and account for any jurisdictional differences
affecting the grade assigned to similar conduct.
For both reports of non-compliance and findings of a violation,
Application Note 2 references the court's authority to ``take any
appropriate action provided under 18 U.S.C. 3583'' and lists certain
informal responses the court also may consider.
New Application Note 3 encourages the court to consider issuing a
summons, rather than an arrest warrant, when appropriate, reflecting
concerns that an arrest may result in unnecessary collateral
consequences.
Sec. 7C1.4 (Revocation of Supervised Release (Policy Statement))
The amendment adds new Sec. 7C1.4, which, in subsection (a),
instructs the court to conduct an individualized assessment to
determine the appropriate length of the term of imprisonment upon
revocation, given the recommended ranges set forth in Sec. 7C1.5 (Term
of Imprisonment--Supervised Release (Policy Statement)).
Subsection (b) directs that any term of imprisonment ``generally
should'' be ordered to be served consecutively to any sentence of
imprisonment that the defendant is currently serving. This language
replaces the former instruction that terms of imprisonment upon
revocation ``shall'' be ordered to be served consecutively. This new
provision continues to underscore the seriousness of violation conduct
while reserving flexibility for courts to run sentences concurrently in
extraordinary cases where justified.
Subsection (c) retains the instruction from the prior version of
Sec. 7B1.3(g)(2) which, consistent with 18 U.S.C. 3583(h), allows a
court to reimpose a term of supervised release upon release from a term
of imprisonment imposed upon revocation.
New Application Note 3 adopts and modifies Sec. 7B1.3(c)(3) to
state that ``[i]n 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 generally is not recommended''
(emphasis added).
New Application Note 4 adopts and modifies Sec. 7B1.3(d) to
instruct that sentencing obligations that remain unpaid or unserved at
the time of revocation ``should'' be ordered to be paid or served in
addition to any sentence imposed upon revocation.
Sec. 7C1.5 (Term of Imprisonment--Supervised Release (Policy
Statement))
The new Sec. 7C1.5 adopts and modifies Sec. 7B1.4 to set forth
the Supervised Release Revocation Table and affirms the importance of
conducting an individualized assessment to determine the length of a
revocation sentence, in addition to consulting the recommended ranges
in the Supervised Release Revocation Table.
The amendment adds an example to Application Note 1 to clarify that
a defendant's criminal history category for purposes of determining the
applicable range of imprisonment is not recalculated to reflect an
amendment made retroactive under Sec. 1B1.10 (Reduction of
Imprisonment as a Result of Amended Guideline Range (Policy
Statement)). It adds the same example to the commentary to Sec. 7B1.4
(Term of Imprisonment--Probation (Policy Statement)).
Sec. 7C1.6 (No Credit for Time Under Supervision (Policy Statement))
The amendment adds Sec. 7C1.6, which duplicates Sec. 7B1.5(b) and
(c).
5. Amendment: Chapter One is amended by striking Part A as follows:

``Part A--Introduction and Authority

Introductory Commentary
Subparts 1 and 2 of this Part provide an introduction to the
Guidelines Manual describing the historical development and evolution
of the federal sentencing guidelines. Subpart 1 sets forth the original
introduction to the Guidelines Manual as it first appeared in 1987,
with the inclusion of amendments made occasionally thereto between 1987
and 2000. The original introduction, as so amended, explained a number
of policy decisions made by the United States Sentencing Commission
(`Commission') when it promulgated the initial set of guidelines and
therefore provides a useful reference for contextual and historical
purposes. Subpart 2 further describes the evolution of the federal
sentencing guidelines after the initial guidelines were promulgated.
Subpart 3 of this Part states the authority of the Commission to
promulgate federal sentencing guidelines, policy statements, and
commentary.
1. Original Introduction to the Guidelines Manual
The following provisions of this Subpart set forth the original
introduction to this manual, effective November 1, 1987, and as amended
through November 1, 2000:
1. Authority
The United States Sentencing Commission (`Commission') is an
independent agency in the judicial branch composed of seven voting and
two non-voting, ex officio members. Its principal purpose is to
establish sentencing policies and practices for the federal criminal
justice system that will assure the ends of justice by promulgating
detailed guidelines prescribing the appropriate sentences for offenders
convicted of federal crimes.
The guidelines and policy statements promulgated by the Commission
are issued pursuant to Section 994(a) of Title 28, United States Code.
2. The Statutory Mission
The Sentencing Reform Act of 1984 (Title II of the Comprehensive
Crime Control Act of 1984) provides for the development of guidelines
that will further the basic purposes of criminal punishment:
deterrence, incapacitation, just punishment, and rehabilitation. The
Act delegates broad authority to the Commission to review and
rationalize the federal sentencing process.
The Act contains detailed instructions as to how this determination
should be made, the most important of which directs the Commission to
create categories of offense behavior and offender characteristics. An
offense behavior category might consist, for example, of `bank robbery/
committed with a gun/$2500 taken.' An offender characteristic category
might be `offender with one prior conviction not resulting in
imprisonment.' The Commission is required to prescribe guideline ranges
that specify an appropriate sentence for each class of convicted
persons determined by

[[Page 19819]]

coordinating the offense behavior categories with the offender
characteristic categories. Where the guidelines call for imprisonment,
the range must be narrow: the maximum of the range cannot exceed the
minimum by more than the greater of 25 percent or six months. 28 U.S.C.
994(b)(2).
Pursuant to the Act, the sentencing court must select a sentence
from within the guideline range. If, however, a particular case
presents atypical features, the Act allows the court to depart from the
guidelines and sentence outside the prescribed range. In that case, the
court must specify reasons for departure. 18 U.S.C. 3553(b). If the
court sentences within the guideline range, an appellate court may
review the sentence to determine whether the guidelines were correctly
applied. If the court departs from the guideline range, an appellate
court may review the reasonableness of the departure. 18 U.S.C. 3742.
The Act also abolishes parole, and substantially reduces and
restructures good behavior adjustments.
The Commission's initial guidelines were submitted to Congress on
April 13, 1987. After the prescribed period of Congressional review,
the guidelines took effect on November 1, 1987, and apply to all
offenses committed on or after that date. The Commission has the
authority to submit guideline amendments each year to Congress between
the beginning of a regular Congressional session and May 1. Such
amendments automatically take effect 180 days after submission unless a
law is enacted to the contrary. 28 U.S.C. 994(p).
The initial sentencing guidelines and policy statements were
developed after extensive hearings, deliberation, and consideration of
substantial public comment. The Commission emphasizes, however, that it
views the guideline-writing process as evolutionary. It expects, and
the governing statute anticipates, that continuing research,
experience, and analysis will result in modifications and revisions to
the guidelines through submission of amendments to Congress. To this
end, the Commission is established as a permanent agency to monitor
sentencing practices in the federal courts.
3. The Basic Approach (Policy Statement)
To understand the guidelines and their underlying rationale, it is
important to focus on the three objectives that Congress sought to
achieve in enacting the Sentencing Reform Act of 1984. The Act's basic
objective was to enhance the ability of the criminal justice system to
combat crime through an effective, fair sentencing system. To achieve
this end, Congress first sought honesty in sentencing. It sought to
avoid the confusion and implicit deception that arose out of the pre-
guidelines sentencing system which required the court to impose an
indeterminate sentence of imprisonment and empowered the parole
commission to determine how much of the sentence an offender actually
would serve in prison. This practice usually resulted in a substantial
reduction in the effective length of the sentence imposed, with
defendants often serving only about one-third of the sentence imposed
by the court.
Second, Congress sought reasonable uniformity in sentencing by
narrowing the wide disparity in sentences imposed for similar criminal
offenses committed by similar offenders. Third, Congress sought
proportionality in sentencing through a system that imposes
appropriately different sentences for criminal conduct of differing
severity.
Honesty is easy to achieve: the abolition of parole makes the
sentence imposed by the court the sentence the offender will serve,
less approximately fifteen percent for good behavior. There is a
tension, however, between the mandate of uniformity and the mandate of
proportionality. Simple uniformity--sentencing every offender to five
years--destroys proportionality. Having only a few simple categories of
crimes would make the guidelines uniform and easy to administer, but
might lump together offenses that are different in important respects.
For example, a single category for robbery that included armed and
unarmed robberies, robberies with and without injuries, robberies of a
few dollars and robberies of millions, would be far too broad.
A sentencing system tailored to fit every conceivable wrinkle of
each case would quickly become unworkable and seriously compromise the
certainty of punishment and its deterrent effect. For example: a bank
robber with (or without) a gun, which the robber kept hidden (or
brandished), might have frightened (or merely warned), injured
seriously (or less seriously), tied up (or simply pushed) a guard,
teller, or customer, at night (or at noon), in an effort to obtain
money for other crimes (or for other purposes), in the company of a few
(or many) other robbers, for the first (or fourth) time.
The list of potentially relevant features of criminal behavior is
long; the fact that they can occur in multiple combinations means that
the list of possible permutations of factors is virtually endless. The
appropriate relationships among these different factors are exceedingly
difficult to establish, for they are often context specific. Sentencing
courts do not treat the occurrence of a simple bruise identically in
all cases, irrespective of whether that bruise occurred in the context
of a bank robbery or in the context of a breach of peace. This is so,
in part, because the risk that such a harm will occur differs depending
on the underlying offense with which it is connected; and also because,
in part, the relationship between punishment and multiple harms is not
simply additive. The relation varies depending on how much other harm
has occurred. Thus, it would not be proper to assign points for each
kind of harm and simply add them up, irrespective of context and total
amounts.
The larger the number of subcategories of offense and offender
characteristics included in the guidelines, the greater the complexity
and the less workable the system. Moreover, complex combinations of
offense and offender characteristics would apply and interact in
unforeseen ways to unforeseen situations, thus failing to cure the
unfairness of a simple, broad category system. Finally, and perhaps
most importantly, probation officers and courts, in applying a complex
system having numerous subcategories, would be required to make a host
of decisions regarding whether the underlying facts were sufficient to
bring the case within a particular subcategory. The greater the number
of decisions required and the greater their complexity, the greater the
risk that different courts would apply the guidelines differently to
situations that, in fact, are similar, thereby reintroducing the very
disparity that the guidelines were designed to reduce.
In view of the arguments, it would have been tempting to retreat to
the simple, broad category approach and to grant courts the discretion
to select the proper point along a broad sentencing range. Granting
such broad discretion, however, would have risked correspondingly broad
disparity in sentencing, for different courts may exercise their
discretionary powers in different ways. Such an approach would have
risked a return to the wide disparity that Congress established the
Commission to reduce and would have been contrary to the Commission's
mandate set forth in the Sentencing Reform Act of 1984.
In the end, there was no completely satisfying solution to this
problem. The Commission had to balance the comparative virtues and
vices of broad, simple categorization and detailed,

[[Page 19820]]

complex subcategorization, and within the constraints established by
that balance, minimize the discretionary powers of the sentencing
court. Any system will, to a degree, enjoy the benefits and suffer from
the drawbacks of each approach.
A philosophical problem arose when the Commission attempted to
reconcile the differing perceptions of the purposes of criminal
punishment. Most observers of the criminal law agree that the ultimate
aim of the law itself, and of punishment in particular, is the control
of crime. Beyond this point, however, the consensus seems to break
down. Some argue that appropriate punishment should be defined
primarily on the basis of the principle of `just deserts.' Under this
principle, punishment should be scaled to the offender's culpability
and the resulting harms. Others argue that punishment should be imposed
primarily on the basis of practical `crime control' considerations.
This theory calls for sentences that most effectively lessen the
likelihood of future crime, either by deterring others or
incapacitating the defendant.
Adherents of each of these points of view urged the Commission to
choose between them and accord one primacy over the other. As a
practical matter, however, this choice was unnecessary because in most
sentencing decisions the application of either philosophy will produce
the same or similar results.
In its initial set of guidelines, the Commission sought to solve
both the practical and philosophical problems of developing a coherent
sentencing system by taking an empirical approach that used as a
starting point data estimating pre-guidelines sentencing practice. It
analyzed data drawn from 10,000 presentence investigations, the
differing elements of various crimes as distinguished in substantive
criminal statutes, the United States Parole Commission's guidelines and
statistics, and data from other relevant sources in order to determine
which distinctions were important in pre-guidelines practice. After
consideration, the Commission accepted, modified, or rationalized these
distinctions.
This empirical approach helped the Commission resolve its practical
problem by defining a list of relevant distinctions that, although of
considerable length, was short enough to create a manageable set of
guidelines. Existing categories are relatively broad and omit
distinctions that some may believe important, yet they include most of
the major distinctions that statutes and data suggest made a
significant difference in sentencing decisions. Relevant distinctions
not reflected in the guidelines probably will occur rarely and
sentencing courts may take such unusual cases into account by departing
from the guidelines.
The Commission's empirical approach also helped resolve its
philosophical dilemma. Those who adhere to a just deserts philosophy
may concede that the lack of consensus might make it difficult to say
exactly what punishment is deserved for a particular crime. Likewise,
those who subscribe to a philosophy of crime control may acknowledge
that the lack of sufficient data might make it difficult to determine
exactly the punishment that will best prevent that crime. Both groups
might therefore recognize the wisdom of looking to those distinctions
that judges and legislators have, in fact, made over the course of
time. These established distinctions are ones that the community
believes, or has found over time, to be important from either a just
deserts or crime control perspective.
The Commission did not simply copy estimates of pre-guidelines
practice as revealed by the data, even though establishing offense
values on this basis would help eliminate disparity because the data
represent averages. Rather, it departed from the data at different
points for various important reasons. Congressional statutes, for
example, suggested or required departure, as in the case of the Anti-
Drug Abuse Act of 1986 that imposed increased and mandatory minimum
sentences. In addition, the data revealed inconsistencies in treatment,
such as punishing economic crime less severely than other apparently
equivalent behavior.
Despite these policy-oriented departures from pre-guidelines
practice, the guidelines represent an approach that begins with, and
builds upon, empirical data. The guidelines will not please those who
wish the Commission to adopt a single philosophical theory and then
work deductively to establish a simple and perfect set of
categorizations and distinctions. The guidelines may prove acceptable,
however, to those who seek more modest, incremental improvements in the
status quo, who believe the best is often the enemy of the good, and
who recognize that these guidelines are, as the Act contemplates, but
the first step in an evolutionary process. After spending considerable
time and resources exploring alternative approaches, the Commission
developed these guidelines as a practical effort toward the achievement
of a more honest, uniform, equitable, proportional, and therefore
effective sentencing system.
4. The Guidelines' Resolution of Major Issues (Policy Statement)
The guideline-drafting process required the Commission to resolve a
host of important policy questions typically involving rather evenly
balanced sets of competing considerations. As an aid to understanding
the guidelines, this introduction briefly discusses several of those
issues; commentary in the guidelines explains others.
(a) Real Offense vs. Charge Offense Sentencing.
One of the most important questions for the Commission to decide
was whether to base sentences upon the actual conduct in which the
defendant engaged regardless of the charges for which he was indicted
or convicted (`real offense' sentencing), or upon the conduct that
constitutes the elements of the offense for which the defendant was
charged and of which he was convicted (`charge offense' sentencing). A
bank robber, for example, might have used a gun, frightened bystanders,
taken $50,000, injured a teller, refused to stop when ordered, and
raced away damaging property during his escape. A pure real offense
system would sentence on the basis of all identifiable conduct. A pure
charge offense system would overlook some of the harms that did not
constitute statutory elements of the offenses of which the defendant
was convicted.
The Commission initially sought to develop a pure real offense
system. After all, the pre-guidelines sentencing system was, in a
sense, this type of system. The sentencing court and the parole
commission took account of the conduct in which the defendant actually
engaged, as determined in a presentence report, at the sentencing
hearing, or before a parole commission hearing officer. The
Commission's initial efforts in this direction, carried out in the
spring and early summer of 1986, proved unproductive, mostly for
practical reasons. To make such a system work, even to formalize and
rationalize the status quo, would have required the Commission to
decide precisely which harms to take into account, how to add them up,
and what kinds of procedures the courts should use to determine the
presence or absence of disputed factual elements. The Commission found
no practical way to combine and account for the large number of diverse
harms arising in different circumstances; nor did it find a practical
way to reconcile the need for a fair adjudicatory procedure with the
need for a speedy sentencing process

[[Page 19821]]

given the potential existence of hosts of adjudicated `real harm' facts
in many typical cases. The effort proposed as a solution to these
problems required the use of, for example, quadratic roots and other
mathematical operations that the Commission considered too complex to
be workable. In the Commission's view, such a system risked return to
wide disparity in sentencing practice.
In its initial set of guidelines submitted to Congress in April
1987, the Commission moved closer to a charge offense system. This
system, however, does contain a significant number of real offense
elements. For one thing, the hundreds of overlapping and duplicative
statutory provisions that make up the federal criminal law forced the
Commission to write guidelines that are descriptive of generic conduct
rather than guidelines that track purely statutory language. For
another, the guidelines take account of a number of important, commonly
occurring real offense elements such as role in the offense, the
presence of a gun, or the amount of money actually taken, through
alternative base offense levels, specific offense characteristics,
cross references, and adjustments.
The Commission recognized that a charge offense system has
drawbacks of its own. One of the most important is the potential it
affords prosecutors to influence sentences by increasing or decreasing
the number of counts in an indictment. Of course, the defendant's
actual conduct (that which the prosecutor can prove in court) imposes a
natural limit upon the prosecutor's ability to increase a defendant's
sentence. Moreover, the Commission has written its rules for the
treatment of multicount convictions with an eye toward eliminating
unfair treatment that might flow from count manipulation. For example,
the guidelines treat a three-count indictment, each count of which
charges sale of 100 grams of heroin or theft of $10,000, the same as a
single-count indictment charging sale of 300 grams of heroin or theft
of $30,000. Furthermore, a sentencing court may control any
inappropriate manipulation of the indictment through use of its
departure power. Finally, the Commission will closely monitor charging
and plea agreement practices and will make appropriate adjustments
should they become necessary.
(b) Departures.
The sentencing statute permits a court to depart from a guideline-
specified sentence only when it finds `an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that
described.' 18 U.S.C. 3553(b). The Commission intends the sentencing
courts to treat each guideline as carving out a `heartland,' a set of
typical cases embodying the conduct that each guideline describes. When
a court finds an atypical case, one to which a particular guideline
linguistically applies but where conduct significantly differs from the
norm, the court may consider whether a departure is warranted. Section
5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic
Status), Sec. 5H1.12 (Lack of Guidance as a Youth and Similar
Circumstances), the third sentence of Sec. 5H1.4 (Physical Condition,
Including Drug or Alcohol Dependence or Abuse), the last sentence of
Sec. 5K2.12 (Coercion and Duress), and Sec. 5K2.19 (Post-Sentencing
Rehabilitative Efforts)* list several factors that the court cannot
take into account as grounds for departure. With those specific
exceptions, however, the Commission does not intend to limit the kinds
of factors, whether or not mentioned anywhere else in the guidelines,
that could constitute grounds for departure in an unusual case.

* Note: Section 5K2.19 (Post-Sentencing Rehabilitative Efforts)
was deleted by Amendment 768, effective November 1, 2012. (See USSG
App. C, amendment 768.)

The Commission has adopted this departure policy for two reasons.
First, it is difficult to prescribe a single set of guidelines that
encompasses the vast range of human conduct potentially relevant to a
sentencing decision. The Commission also recognizes that the initial
set of guidelines need not do so. The Commission is a permanent body,
empowered by law to write and rewrite guidelines, with progressive
changes, over many years. By monitoring when courts depart from the
guidelines and by analyzing their stated reasons for doing so and court
decisions with references thereto, the Commission, over time, will be
able to refine the guidelines to specify more precisely when departures
should and should not be permitted.
Second, the Commission believes that despite the courts' legal
freedom to depart from the guidelines, they will not do so very often.
This is because the guidelines, offense by offense, seek to take
account of those factors that the Commission's data indicate made a
significant difference in pre-guidelines sentencing practice. Thus, for
example, where the presence of physical injury made an important
difference in pre-guidelines sentencing practice (as in the case of
robbery or assault), the guidelines specifically include this factor to
enhance the sentence. Where the guidelines do not specify an
augmentation or diminution, this is generally because the sentencing
data did not permit the Commission to conclude that the factor was
empirically important in relation to the particular offense. Of course,
an important factor (e.g., physical injury) may infrequently occur in
connection with a particular crime (e.g., fraud). Such rare occurrences
are precisely the type of events that the courts' departure powers were
designed to cover--unusual cases outside the range of the more typical
offenses for which the guidelines were designed.
It is important to note that the guidelines refer to two different
kinds of departure. The first involves instances in which the
guidelines provide specific guidance for departure by analogy or by
other numerical or non-numerical suggestions. The Commission intends
such suggestions as policy guidance for the courts. The Commission
expects that most departures will reflect the suggestions and that the
courts of appeals may prove more likely to find departures
`unreasonable' where they fall outside suggested levels.
A second type of departure will remain unguided. It may rest upon
grounds referred to in Chapter Five, Part K (Departures) or on grounds
not mentioned in the guidelines. While Chapter Five, Part K lists
factors that the Commission believes may constitute grounds for
departure, the list is not exhaustive. The Commission recognizes that
there may be other grounds for departure that are not mentioned; it
also believes there may be cases in which a departure outside suggested
levels is warranted. In its view, however, such cases will be highly
infrequent.
(c) Plea Agreements.
Nearly ninety percent of all federal criminal cases involve guilty
pleas and many of these cases involve some form of plea agreement. Some
commentators on early Commission guideline drafts urged the Commission
not to attempt any major reforms of the plea agreement process on the
grounds that any set of guidelines that threatened to change pre-
guidelines practice radically also threatened to make the federal
system unmanageable. Others argued that guidelines that failed to
control and limit plea agreements would leave untouched a `loophole'
large enough to undo the good that sentencing guidelines would bring.
The Commission decided not to make major changes in plea agreement
practices in the initial guidelines, but rather to provide guidance by
issuing

[[Page 19822]]

general policy statements concerning the acceptance of plea agreements
in Chapter Six, Part B (Plea Agreements). The rules set forth in Fed.
R. Crim. P. 11(e) govern the acceptance or rejection of such
agreements. The Commission will collect data on the courts' plea
practices and will analyze this information to determine when and why
the courts accept or reject plea agreements and whether plea agreement
practices are undermining the intent of the Sentencing Reform Act. In
light of this information and analysis, the Commission will seek to
further regulate the plea agreement process as appropriate.
Importantly, if the policy statements relating to plea agreements are
followed, circumvention of the Sentencing Reform Act and the guidelines
should not occur.
The Commission expects the guidelines to have a positive,
rationalizing impact upon plea agreements for two reasons. First, the
guidelines create a clear, definite expectation in respect to the
sentence that a court will impose if a trial takes place. In the event
a prosecutor and defense attorney explore the possibility of a
negotiated plea, they will no longer work in the dark. This fact alone
should help to reduce irrationality in respect to actual sentencing
outcomes. Second, the guidelines create a norm to which courts will
likely refer when they decide whether, under Rule 11(e), to accept or
to reject a plea agreement or recommendation.
(d) Probation and Split Sentences.
The statute provides that the guidelines are to `reflect the
general appropriateness of imposing a sentence other than imprisonment
in cases in which the defendant is a first offender who has not been
convicted of a crime of violence or an otherwise serious offense . . .
.' 28 U.S.C. 994(j). Under pre-guidelines sentencing practice, courts
sentenced to probation an inappropriately high percentage of offenders
guilty of certain economic crimes, such as theft, tax evasion,
antitrust offenses, insider trading, fraud, and embezzlement, that in
the Commission's view are `serious.'
The Commission's solution to this problem has been to write
guidelines that classify as serious many offenses for which probation
previously was frequently given and provide for at least a short period
of imprisonment in such cases. The Commission concluded that the
definite prospect of prison, even though the term may be short, will
serve as a significant deterrent, particularly when compared with pre-
guidelines practice where probation, not prison, was the norm.
More specifically, the guidelines work as follows in respect to a
first offender. For offense levels one through eight, the sentencing
court may elect to sentence the offender to probation (with or without
confinement conditions) or to a prison term. For offense levels nine
and ten, the court may substitute probation for a prison term, but the
probation must include confinement conditions (community confinement,
intermittent confinement, or home detention). For offense levels eleven
and twelve, the court must impose at least one-half the minimum
confinement sentence in the form of prison confinement, the remainder
to be served on supervised release with a condition of community
confinement or home detention.* The Commission, of course, has not
dealt with the single acts of aberrant behavior that still may justify
probation at higher offense levels through departures.**

* Note: The Commission expanded Zones B and C of the Sentencing
Table in 2010 to provide a greater range of sentencing options to
courts with respect to certain offenders. (See USSG App. C,
amendment 738.) In 2018, the Commission added a new application note
to the Commentary to Sec. 5C1.1 (Imposition of a Term of
Imprisonment), stating that if a defendant is a `nonviolent first
offender and the applicable guideline range is in Zone A or B of the
Sentencing Table, the court should consider imposing a sentence
other than a sentence of imprisonment.' (See USSG App. C, amendment
801.) In 2023, the Commission added a new Chapter Four guideline, at
Sec. 4C1.1 (Adjustment for Certain Zero-Point Offenders), providing
a decrease of 2 levels from the offense level determined under
Chapters Two and Three for `zero-point' offenders who meet certain
criteria. In addition, the Commission further amended the Commentary
to Sec. 5C1.1 to address the alternatives to incarceration
available to `zero-point' offenders by revising the application note
in Sec. 5C1.1 that addressed `nonviolent first offenders' to focus
on `zero-point' offenders. (See USSG App. C, amendment 821.)

** Note: Although the Commission had not addressed `single acts
of aberrant behavior' at the time the Introduction to the Guidelines
Manual originally was written, it subsequently addressed the issue
in Amendment 603, effective November 1, 2000. (See USSG App. C,
amendment 603.)

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

[[Page 19823]]

violations in the initial set of guidelines. There are hundreds of such
provisions scattered throughout the United States Code. To find all
potential violations would involve examination of each individual
federal regulation. Because of this practical difficulty, the
Commission sought to determine, with the assistance of the Department
of Justice and several regulatory agencies, which criminal regulatory
offenses were particularly important in light of the need for
enforcement of the general regulatory scheme. The Commission addressed
these offenses in the initial guidelines.
In respect to the second problem, the Commission has developed a
system for treating technical recordkeeping and reporting offenses that
divides them into four categories. First, in the simplest of cases, the
offender may have failed to fill out a form intentionally, but without
knowledge or intent that substantive harm would likely follow. He might
fail, for example, to keep an accurate record of toxic substance
transport, but that failure may not lead, nor be likely to lead, to the
release or improper handling of any toxic substance. Second, the same
failure may be accompanied by a significant likelihood that substantive
harm will occur; it may make a release of a toxic substance more
likely. Third, the same failure may have led to substantive harm.
Fourth, the failure may represent an effort to conceal a substantive
harm that has occurred.
The structure of a typical guideline for a regulatory offense
provides a low base offense level (e.g., 6) aimed at the first type of
recordkeeping or reporting offense. Specific offense characteristics
designed to reflect substantive harms that do occur in respect to some
regulatory offenses, or that are likely to occur, increase the offense
level. A specific offense characteristic also provides that a
recordkeeping or reporting offense that conceals a substantive offense
will have the same offense level as the substantive offense.
(g) Sentencing Ranges.
In determining the appropriate sentencing ranges for each offense,
the Commission estimated the average sentences served within each
category under the pre-guidelines sentencing system. It also examined
the sentences specified in federal statutes, in the parole guidelines,
and in other relevant, analogous sources. The Commission's
Supplementary Report on the Initial Sentencing Guidelines (1987)
contains a comparison between estimates of pre-guidelines sentencing
practice and sentences under the guidelines.
While the Commission has not considered itself bound by pre-
guidelines sentencing practice, it has not attempted to develop an
entirely new system of sentencing on the basis of theory alone.
Guideline sentences, in many instances, will approximate average pre-
guidelines practice and adherence to the guidelines will help to
eliminate wide disparity. For example, where a high percentage of
persons received probation under pre-guidelines practice, a guideline
may include one or more specific offense characteristics in an effort
to distinguish those types of defendants who received probation from
those who received more severe sentences. In some instances, short
sentences of incarceration for all offenders in a category have been
substituted for a pre-guidelines sentencing practice of very wide
variability in which some defendants received probation while others
received several years in prison for the same offense. Moreover,
inasmuch as those who pleaded guilty under pre-guidelines practice
often received lesser sentences, the guidelines permit the court to
impose lesser sentences on those defendants who accept responsibility
for their misconduct. For defendants who provide substantial assistance
to the government in the investigation or prosecution of others, a
downward departure may be warranted.
The Commission has also examined its sentencing ranges in light of
their likely impact upon prison population. Specific legislation, such
as the Anti-Drug Abuse Act of 1986 and the career offender provisions
of the Sentencing Reform Act of 1984 (28 U.S.C. 994(h)), required the
Commission to promulgate guidelines that will lead to substantial
prison population increases. These increases will occur irrespective of
the guidelines. The guidelines themselves, insofar as they reflect
policy decisions made by the Commission (rather than legislated
mandatory minimum or career offender sentences), are projected to lead
to an increase in prison population that computer models, produced by
the Commission and the Bureau of Prisons in 1987, estimated at
approximately 10 percent over a period of ten years.
(h) The Sentencing Table.
The Commission has established a sentencing table that for
technical and practical reasons contains 43 levels. Each level in the
table prescribes ranges that overlap with the ranges in the preceding
and succeeding levels. By overlapping the ranges, the table should
discourage unnecessary litigation. Both prosecution and defense will
realize that the difference between one level and another will not
necessarily make a difference in the sentence that the court imposes.
Thus, little purpose will be served in protracted litigation trying to
determine, for example, whether $10,000 or $11,000 was obtained as a
result of a fraud. At the same time, the levels work to increase a
sentence proportionately. A change of six levels roughly doubles the
sentence irrespective of the level at which one starts. The guidelines,
in keeping with the statutory requirement that the maximum of any range
cannot exceed the minimum by more than the greater of 25 percent or six
months (28 U.S.C. 994(b)(2)), permit courts to exercise the greatest
permissible range of sentencing discretion. The table overlaps offense
levels meaningfully, works proportionately, and at the same time
preserves the maximum degree of allowable discretion for the court
within each level.
Similarly, many of the individual guidelines refer to tables that
correlate amounts of money with offense levels. These tables often have
many rather than a few levels. Again, the reason is to minimize the
likelihood of unnecessary litigation. If a money table were to make
only a few distinctions, each distinction would become more important
and litigation over which category an offender fell within would become
more likely. Where a table has many small monetary distinctions, it
minimizes the likelihood of litigation because the precise amount of
money involved is of considerably less importance.
5. A Concluding Note
The Commission emphasizes that it drafted the initial guidelines
with considerable caution. It examined the many hundreds of criminal
statutes in the United States Code. It began with those that were the
basis for a significant number of prosecutions and sought to place them
in a rational order. It developed additional distinctions relevant to
the application of these provisions and it applied sentencing ranges to
each resulting category. In doing so, it relied upon pre-guidelines
sentencing practice as revealed by its own statistical analyses based
on summary reports of some 40,000 convictions, a sample of 10,000
augmented presentence reports, the parole guidelines, and policy
judgments.
The Commission recognizes that some will criticize this approach as
overly cautious, as representing too little a departure from pre-
guidelines sentencing practice. Yet, it will cure wide disparity. The
Commission is a permanent body that can amend the guidelines each year.
Although the data available to it, like all data, are

[[Page 19824]]

imperfect, experience with the guidelines will lead to additional
information and provide a firm empirical basis for consideration of
revisions.
Finally, the guidelines will apply to more than 90 percent of all
felony and Class A misdemeanor cases in the federal courts. Because of
time constraints and the nonexistence of statistical information, some
offenses that occur infrequently are not considered in the guidelines.
Their exclusion does not reflect any judgment regarding their
seriousness and they will be addressed as the Commission refines the
guidelines over time.
2. Continuing Evolution and Role of the Guidelines
The Sentencing Reform Act of 1984 changed the course of federal
sentencing. Among other things, the Act created the United States
Sentencing Commission as an independent agency in the Judicial Branch,
and directed it to develop guidelines and policy statements for
sentencing courts to use when sentencing offenders convicted of federal
crimes. Moreover, it empowered the Commission with ongoing
responsibilities to monitor the guidelines, submit to Congress
appropriate modifications of the guidelines and recommended changes in
criminal statutes, and establish education and research programs. The
mandate rested on congressional awareness that sentencing is a dynamic
field that requires continuing review by an expert body to revise
sentencing policies, in light of application experience, as new
criminal statutes are enacted, and as more is learned about what
motivates and controls criminal behavior.
This statement finds resonance in a line of Supreme Court cases
that, taken together, echo two themes. The first theme is that the
guidelines are the product of a deliberative process that seeks to
embody the purposes of sentencing set forth in the Sentencing Reform
Act, and as such they continue to play an important role in the
sentencing court's determination of an appropriate sentence in a
particular case. The Supreme Court alluded to this in Mistretta v.
United States, 488 U.S. 361 (1989), which upheld the constitutionality
of both the federal sentencing guidelines and the Commission against
nondelegation and separation of powers challenges. Therein the Court
stated:
Developing proportionate penalties for hundreds of different crimes
by a virtually limitless array of offenders is precisely the sort of
intricate, labor-intensive task for which delegation to an expert body
is especially appropriate. Although Congress has delegated significant
discretion to the Commission to draw judgments from its analysis of
existing sentencing practice and alternative sentencing models, . . .
[w]e have no doubt that in the hands of the Commission `the criteria
which Congress has supplied are wholly adequate for carrying out the
general policy and purpose' of the Act.
Id. at 379 (internal quotation marks and citations omitted).
The continuing importance of the guidelines in federal sentencing
was further acknowledged by the Court in United States v. Booker, 543
U.S. 220 (2005), even as that case rendered the guidelines advisory in
nature. In Booker, the Court held that the imposition of an enhanced
sentence under the federal sentencing guidelines based on the
sentencing judge's determination of a fact (other than a prior
conviction) that was not found by the jury or admitted by the defendant
violated the Sixth Amendment. The Court reasoned that an advisory
guideline system, while lacking the mandatory features that Congress
enacted, retains other features that help to further congressional
objectives, including providing certainty and fairness in meeting the
purposes of sentencing, avoiding unwarranted sentencing disparities,
and maintaining sufficient flexibility to permit individualized
sentences when warranted. The Court concluded that an advisory
guideline system would `continue to move sentencing in Congress'
preferred direction, helping to avoid excessive sentencing disparities
while maintaining flexibility sufficient to individualize sentences
where necessary.' Id. at 264-65. An advisory guideline system continues
to assure transparency by requiring that sentences be based on
articulated reasons stated in open court that are subject to appellate
review. An advisory guideline system also continues to promote
certainty and predictability in sentencing, thereby enabling the
parties to better anticipate the likely sentence based on the
individualized facts of the case.
The continuing importance of the guidelines in the sentencing
determination is predicated in large part on the Sentencing Reform
Act's intent that, in promulgating guidelines, the Commission must take
into account the purposes of sentencing as set forth in 18 U.S.C.
3553(a). See 28 U.S.C. 994(f), 991(b)(1). The Supreme Court reinforced
this view in Rita v. United States, 551 U.S. 338 (2007), which held
that a court of appeals may apply a presumption of reasonableness to a
sentence imposed by a district court within a properly calculated
guideline range without violating the Sixth Amendment. In Rita, the
Court relied heavily on the complementary roles of the Commission and
the sentencing court in federal sentencing, stating:
[T]he presumption reflects the nature of the Guidelines-writing
task that Congress set for the Commission and the manner in which the
Commission carried out that task. In instructing both the sentencing
judge and the Commission what to do, Congress referred to the basic
sentencing objectives that the statute sets forth in 18 U.S.C. 3553(a)
. . . . The provision also tells the sentencing judge to `impose a
sentence sufficient, but not greater than necessary, to comply with'
the basic aims of sentencing as set out above. Congressional statutes
then tell the Commission to write Guidelines that will carry out these
same Sec. 3553(a) objectives.
Id. at 347-48 (emphasis in original). The Court concluded that
`[t]he upshot is that the sentencing statutes envision both the
sentencing judge and the Commission as carrying out the same basic
Sec. 3553(a) objectives, the one, at retail, the other at
wholesale[,]' id. at 348, and that the Commission's process for
promulgating guidelines results in `a set of Guidelines that seek to
embody the Sec. 3553(a) considerations, both in principle and in
practice.' Id. at 350.
Consequently, district courts are required to properly calculate
and consider the guidelines when sentencing, even in an advisory
guideline system. See 18 U.S.C. 3553(a)(4), (a)(5); Booker, 543 U.S. at
264 (`The district courts, while not bound to apply the Guidelines,
must . . . take them into account when sentencing.'); Rita, 551 U.S. at
351 (stating that a district court should begin all sentencing
proceedings by correctly calculating the applicable Guidelines range);
Gall v. United States, 552 U.S. 38, 49 (2007) (`As a matter of
administration and to secure nationwide consistency, the Guidelines
should be the starting point and the initial benchmark.'). The district
court, in determining the appropriate sentence in a particular case,
therefore, must consider the properly calculated guideline range, the
grounds for departure provided in the policy statements, and then the
factors under 18 U.S.C. 3553(a). See Rita, 551 U.S. at 351. The
appellate court engages in a two-step process upon review. The
appellate court `first ensure[s] that the district court committed no
significant procedural error, such as failing to

[[Page 19825]]

calculate (or improperly calculating) the Guidelines range . . . [and]
then consider[s] the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard[,] . . . tak[ing] into account
the totality of the circumstances, including the extent of any variance
from the Guidelines range.' Gall, 552 U.S. at 51.
The second and related theme resonant in this line of Supreme Court
cases is that, as contemplated by the Sentencing Reform Act, the
guidelines are evolutionary in nature. They are the product of the
Commission's fulfillment of its statutory duties to monitor federal
sentencing law and practices, to seek public input on the operation of
the guidelines, and to revise the guidelines accordingly. As the Court
acknowledged in Rita:
The Commission's work is ongoing. The statutes and the Guidelines
themselves foresee continuous evolution helped by the sentencing courts
and courts of appeals in that process. The sentencing courts, applying
the Guidelines in individual cases may depart (either pursuant to the
Guidelines or, since Booker, by imposing a non-Guidelines sentence).
The judges will set forth their reasons. The Courts of Appeals will
determine the reasonableness of the resulting sentence. The Commission
will collect and examine the results. In doing so, it may obtain advice
from prosecutors, defenders, law enforcement groups, civil liberties
associations, experts in penology, and others. And it can revise the
Guidelines accordingly.
Rita, 551 U.S. at 350; see also Booker, 543 U.S. at 264 (`[T]he
Sentencing Commission remains in place, writing Guidelines, collecting
information about actual district court sentencing decisions,
undertaking research, and revising the Guidelines accordingly.'); Gall,
552 U.S. at 46 (`[E]ven though the Guidelines are advisory rather than
mandatory, they are, as we pointed out in Rita, the product of careful
study based on extensive empirical evidence derived from the review of
thousands of individual sentencing decisions.').
Provisions of the Sentencing Reform Act promote and facilitate this
evolutionary process. For example, pursuant to 28 U.S.C. 994(x), the
Commission publishes guideline amendment proposals in the Federal
Register and conducts hearings to solicit input on those proposals from
experts and other members of the public. Pursuant to 28 U.S.C. 994(o),
the Commission periodically reviews and revises the guidelines in
consideration of comments it receives from members of the federal
criminal justice system, including the courts, probation officers, the
Department of Justice, the Bureau of Prisons, defense attorneys and the
federal public defenders, and in consideration of data it receives from
sentencing courts and other sources. Statutory mechanisms such as these
bolster the Commission's ability to take into account fully the
purposes of sentencing set forth in 18 U.S.C. 3553(a)(2) in its
promulgation of the guidelines.
Congress retains authority to require certain sentencing practices
and may exercise its authority through specific directives to the
Commission with respect to the guidelines. As the Supreme Court noted
in Kimbrough v. United States, 552 U.S. 85 (2007), `Congress has shown
that it knows how to direct sentencing practices in express terms. For
example, Congress has specifically required the Sentencing Commission
to set Guideline sentences for serious recidivist offenders `at or
near' the statutory maximum.' Id. at 103; 28 U.S.C. 994(h).
As envisioned by Congress, implemented by the Commission, and
reaffirmed by the Supreme Court, the guidelines are the product of a
deliberative and dynamic process that seeks to embody within federal
sentencing policy the purposes of sentencing set forth in the
Sentencing Reform Act. As such, the guidelines continue to be a key
component of federal sentencing and to play an important role in the
sentencing court's determination of an appropriate sentence in any
particular case.
3. Authority

Sec. 1A3.1. Authority

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

``Part A--Introduction and Authority

Introductory Commentary
The United States Sentencing Commission (`Commission') is an
independent agency in the judicial branch composed of seven voting and
two non-voting, ex officio members. Congress directed the Commission to
establish sentencing policies and practices for the federal criminal
justice system and develop guidelines that further the purposes of
sentencing. This part provides the statutory authority and mission of
the Commission to promulgate federal sentencing guidelines, policy
statements, and commentary.
The guidelines and policy statements promulgated by the Commission
are issued pursuant to Section 994(a) of Title 28, United States Code,
and are set forth in this Guidelines Manual.
The Guidelines Manual is structured to reflect the advisory
sentencing scheme established following the Supreme Court's decision in
United States v. Booker, 543 U.S. 220 (2005), recognizing both
essential steps of the court's inquiry in imposing a sentence
`sufficient, but not greater than necessary.' See 18 U.S.C. 3553(a).
The guidelines and policy statements set forth throughout the
Guidelines Manual represent the first step in the sentencing process
and are one of multiple factors judges must consider under 18 U.S.C.
3553(a).
Originally, consistent with the pre-Booker sentencing system, the
Guidelines Manual included an additional step for determining a
sentence by providing for a number of `departures,' which were
provisions that allowed the court to impose a sentence outside the
applicable guideline range or otherwise different from the guideline
sentence before the court's consideration of the additional sentencing
factors set forth in 18 U.S.C. 3553(a). The departure provisions were
set forth throughout the Guidelines Manual as part of the commentary to
numerous guidelines and in policy statements contained in Chapter Four,
Part A, and Chapter Five, Parts H and K.
Following Booker, courts are permitted to impose sentences outside
the applicable guideline range as `variances,' both for reasons related
to the operation of the applicable guideline provisions and in light of
individual characteristics unrelated to guideline provisions. In the
years after Booker, courts used departures with much less frequency in
favor of variances.
In 2025, the Commission amended the Guidelines Manual to remove
departures and policy statements relating to specific personal
characteristics. (See USSG App. C, amendment 836). The Commission
sought to make these changes to better align the requirements placed on
the court and acknowledge the growing shift away from the use of
departures

[[Page 19826]]

provided for within the Guidelines Manual in the wake of Booker and
subsequent decisions. The Commission envisioned and framed this 2025
amendment to be outcome neutral, intending that judges who would have
relied upon facts previously identified as a basis for a departure
would continue to have the authority to rely upon such facts to impose
a sentence outside of the applicable guideline range as a variance
under 18 U.S.C. 3553(a). The removal of departures from the Guidelines
Manual does not limit the information courts may consider in imposing a
sentence nor does it reflect a view from the Commission that such facts
should no longer inform a court for purposes of determining the
appropriate sentence. In this regard, Appendix B of the Guidelines
Manual compiles the departure provisions as they were last provided in
the 2024 edition of the Manual. Similarly, information describing the
historical development and evolution of the federal sentencing
guidelines is also set forth in Appendix B of the Guidelines Manual.
1. Authority

Sec. 1A1.1. Commission's Authority

The Sentencing Reform Act of 1984 (Title II of the Comprehensive
Crime Control Act of 1984) provides that a sentencing court `shall
impose a sentence sufficient, but not greater than necessary, to comply
with' the purposes of sentencing: (1) to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment
for the offense; (2) deterrence; (3) protection of the public from
further crimes; and (4) rehabilitation. See 18 U.S.C. 3553(a). The Act
also provides for the development of guidelines by the Commission that
further those purposes.
The guidelines, policy statements, and commentary set forth in this
Guidelines Manual, including amendments thereto, are promulgated by the
United States Sentencing Commission pursuant to: (1) section 994(a) of
title 28, United States Code; and (2) with respect to guidelines,
policy statements, and commentary promulgated or amended pursuant to
specific congressional directive, pursuant to the authority contained
in that directive in addition to the authority under section 994(a) of
title 28, United States Code.
The Commission has ensured that the guidelines, policy statements,
and commentary used to calculate the guideline range are: (1) neutral
as to the race, sex, national origin, creed, and socioeconomic status
of the defendant; and (2) generally do not reflect consideration of
education, vocational skills, employment record, family ties and
responsibilities, and community ties of the defendant, in recommending
a term of imprisonment or length of imprisonment. See 28 U.S.C. 994(d),
(e).
Commentary
Background: The Sentencing Reform Act of 1984 (Title II of the
Comprehensive Crime Control Act of 1984) (the `Act') provides that
courts must consider a variety of factors when imposing a sentence
`sufficient, but not greater than necessary' to comply with the
purposes of sentencing as set forth in the Act--to reflect the
seriousness of the offense, to promote respect for the law, to provide
just punishment for the offense, deterrence, protection of the public
from further crimes, and rehabilitation. 18 U.S.C. 3553(a). The Act
provides for the development of guidelines that will (1) further these
statutory purposes of sentencing; (2) provide certainty and fairness in
meeting the purposes of sentencing, avoiding unwarranted sentencing
disparities among defendants with similar records who have been found
guilty of similar criminal conduct while maintaining sufficient
flexibility to permit individualized sentences when warranted by
mitigating or aggravating factors not taken into account in the
establishment of general sentencing practices; and (3) reflect, to the
extent practicable, advancement in knowledge of human behavior as it
relates to the criminal justice process. 28 U.S.C. 994(f).
As background, Congress provided specific directives to the
Commission when setting a guideline range for `each category of offense
involving each category of defendant.' 28 U.S.C. 994(b)(1).
First, the Act directs the Commission to consider, for purposes of
establishing categories of offenses, whether the following seven
matters, `among others,' have any relevance to the nature, extent,
place of service, or other aspects of an appropriate sentence: (1) the
grade of the offense; (2) the circumstances under which the offense was
committed which mitigate or aggravate the seriousness of the offense;
(3) the nature and degree of the harm caused by the offense, including
whether it involved property, irreplaceable property, a person, a
number of persons, or a breach of public trust; (4) the community view
of the gravity of the offense; (5) the public concern generated by the
offense; (6) the deterrent effect a particular sentence may have on the
commission of the offense by others; and (7) the current incidence of
the offense in the community and in the Nation as a whole. See 28
U.S.C. 994(c).
Second, the Act directs the Commission to consider, for purposes of
establishing categories of defendants, whether the following eleven
matters, `among others,' have any relevance to the nature, extent,
place of service, or other aspects of an appropriate sentence, and to
take them into account in the guidelines and policy statements only to
the extent that they do have relevance: (1) age; (2) education; (3)
vocational skills; (4) mental and emotional condition to the extent
that such condition mitigates the defendant's culpability or to the
extent that such condition is otherwise plainly relevant; (5) physical
condition, including drug dependence; (6) previous employment record;
(7) family ties and responsibilities; (8) community ties; (9) role in
the offense; (10) criminal history; and (11) degree of dependence upon
criminal activity for a livelihood. See 28 U.S.C. 994(d). The Act also
directs the Commission to ensure that the guidelines and policy
statements `are entirely neutral' as to five characteristics--race,
sex, national origin, creed, and socioeconomic status. See 28 U.S.C.
994(d).
Third, the Act directs the Commission to ensure that the guidelines
and policy statements, in recommending a term of imprisonment or length
of a term of imprisonment, reflect the `general inappropriateness' of
considering five of those characteristics--education; vocational
skills; employment record; family ties and responsibilities; and
community ties. See 28 U.S.C. 994(e).
In formulating the guidelines used to calculate the guideline
range, the Commission remains cognizant of these detailed instructions
directing the Commission to consider whether, and to what extent,
specific offense-based and offender-based factors are relevant to
sentencing. See 28 U.S.C. 994(c), (d). Similarly, the Commission has
ensured that the guidelines, policy statements, and commentary used to
calculate the guideline range are: (1) neutral as to the race, sex,
national origin, creed, and socioeconomic status of the defendant; and
(2) generally do not reflect consideration of education, vocational
skills, employment record, family ties and responsibilities, and
community ties of the defendant in recommending a term of imprisonment
or length of imprisonment. See 28 U.S.C. 994(d), (e).
The requirements and limitations imposed upon the Commission by 28
U.S.C. 994, however, do not apply to the sentencing court. To the
contrary, Congress set forth the factors that a

[[Page 19827]]

court must consider in imposing a sentence that is `sufficient but not
greater than necessary' to comply with the purposes of sentencing in 18
U.S.C. 3553(a). These statutory factors permit a sentencing court to
consider the `widest possible breadth of information' about a defendant
ensuring the court is in `possession of the fullest information
possible concerning the defendant's life and characteristics.' See
Pepper v. United States, 562 U.S. 476, 488 (2011); see also Concepcion
v. United States, 597 U.S. 481, 493 (2022). Accordingly, the
application instructions set forth in the following part are structured
to reflect this two-step process whereby the sentencing court must
first correctly calculate the applicable guideline range as the
`starting point and initial benchmark' and then must determine an
appropriate sentence upon consideration of all the factors set forth by
Congress in 18 U.S.C. 3553(a). See Gall v. United States, 552 U.S. 38,
49-51 (2007).''.
Section 1B1.1(a) is amended--
by inserting at the beginning the following new heading: ``Step
One: Calculation of Guideline Range and Determination of Sentencing
Requirements and Options under the Guidelines Manual.--'';
in paragraph 5 by striking ``Apply the adjustment as appropriate
for the defendant's acceptance of responsibility from Part E of Chapter
Three'' and inserting ``Apply the adjustment for the defendant's
acceptance of responsibility and the reduction pursuant to an early
disposition program, as appropriate, from Parts E and F of Chapter
Three'';
and by inserting at the end the following new paragraph (9):
``(9) Apply, as appropriate, Part K of Chapter Five.''.
Section 1B1.1 is amended by striking subsections (b) and (c) as
follows:
``(b) The court shall then consider Parts H and K of Chapter Five,
Specific Offender Characteristics and Departures, and any other policy
statements or commentary in the guidelines that might warrant
consideration in imposing sentence. See 18 U.S.C. 3553(a)(5).
(c) The court shall then consider the applicable factors in 18
U.S.C. 3553(a) taken as a whole. See 18 U.S.C. 3553(a).'';
and inserting the following new subsection (b):
``(b) Step Two: Consideration of Factors Set Forth in 18 U.S.C.
3553(a).--After determining the kinds of sentence and guidelines range
pursuant to subsection (a) of Sec. 1B1.1 (Application Instructions)
and 18 U.S.C. 3553(a)(4) and (5), the court shall consider the other
applicable factors in 18 U.S.C. 3553(a) to determine a sentence that is
sufficient, but not greater than necessary, to comply with the purposes
of sentencing. Specifically, as set forth in 18 U.S.C. 3553(a), in
determining the particular sentence to be imposed, the court shall also
consider--
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed to meet the purposes of
sentencing listed in 18 U.S.C. 3553(a)(2);
(3) the kinds of sentences available;
(4) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and
(5) the need to provide restitution to any victims of the
offense.''.
The Commentary to Sec. 1B1.1 captioned ``Application Notes'' is
amended in Note 1--
by striking subparagraph (F) as follows:
``(F) `Departure' means (i) for purposes other than those specified
in clause (ii), imposition of a sentence outside the applicable
guideline range or of a sentence that is otherwise different from the
guideline sentence; and (ii) for purposes of Sec. 4A1.3 (Departures
Based on Inadequacy of Criminal History Category), assignment of a
criminal history category other than the otherwise applicable criminal
history category, in order to effect a sentence outside the applicable
guideline range. `Depart' means grant a departure.
`Downward departure' means departure that effects a sentence less
than a sentence that could be imposed under the applicable guideline
range or a sentence that is otherwise less than the guideline sentence.
`Depart downward' means grant a downward departure.
`Upward departure' means departure that effects a sentence greater
than a sentence that could be imposed under the applicable guideline
range or a sentence that is otherwise greater than the guideline
sentence. `Depart upward' means grant an upward departure.'';
and by redesignating subparagraphs (G) through (M) as subparagraphs
(F) through (L), respectively.
The Commentary to Sec. 1B1.1 captioned ``Background'' is amended
by striking the following:
``The court must impose a sentence `sufficient, but not greater
than necessary,' to comply with the purposes of sentencing set forth in
18 U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a). Subsections (a), (b), and
(c) are structured to reflect the three-step process used in
determining the particular sentence to be imposed. If, after step (c),
the court imposes a sentence that is outside the guidelines framework,
such a sentence is considered a `variance'. See Irizarry v. United
States, 553 U.S. 708, 709-16 (2008) (describing within-range sentences
and departures as `sentences imposed under the framework set out in the
Guidelines').'';
and inserting the following:
``The court must impose a sentence `sufficient, but not greater
than necessary,' to comply with the purposes of sentencing set forth in
18 U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a). This guideline is
structured to reflect the advisory sentencing scheme established
following the Supreme Court's decision in United States v. Booker, 543
U.S. 220 (2005), by setting forth both essential steps of the court's
inquiry in making this determination.
Originally, the guidelines were mandatory, with limited exceptions.
See 18 U.S.C. 3553(b). Later, in United States v. Booker, 543 U.S. 220
(2005), the Supreme Court held that the provision in 18 U.S.C. 3553(b)
making the guidelines mandatory was unconstitutional. Following Booker,
district courts are first required to properly calculate and consider
the guidelines when sentencing. See 18 U.S.C. 3553(a)(4), (a)(5);
Booker, 543 U.S. at 264 (`The district courts, while not bound to apply
the Guidelines, must . . . take them into account when sentencing.');
Rita v. United States, 551 U.S. 338, 351 (2007) (stating that a
district court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range); Gall v. United States,
552 U.S. 38, 49 (2007) (`As a matter of administration and to secure
nationwide consistency, the Guidelines should be the starting point and
the initial benchmark.'); Peugh v. United States, 569 U.S. 530 (2013)
(noting that `the post-Booker federal sentencing system adopted
procedural measures that make the guidelines the `lodestone' of
sentencing'). Step one sets forth the steps for properly calculating
the guidelines.
District courts are then required to fully and carefully consider
the additional factors set forth in 18 U.S.C. 3553(a), which include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed
to meet the purposes of sentencing listed in 18 U.S.C. 3553(a)(2); (3)
the kinds of sentence available; (4) the need to avoid unwarranted
sentence disparities among

[[Page 19828]]

defendants with similar records who have been found guilty of similar
conduct; and (5) the need to provide restitution to any victims of the
offense. See Rita, 551 U.S. at 351. Step two, as set forth in
subsection (b), reflects this step of the sentencing process.''.
The Commentary to Sec. 1B1.2 captioned ``Application Notes'' is
amended in Note 1 by striking ``the court would be forced to use an
artificial guideline and then depart from it'' and inserting ``the
court would be forced to use an artificial guideline and then impose a
sentence that is greater than the otherwise applicable guideline
range''; and by striking ``the probation officer might need to
calculate the robbery guideline to assist the court in determining the
appropriate degree of departure'' and inserting ``the probation officer
might need to calculate the robbery guideline to assist the court in
determining an appropriate sentence''.
Section 1B1.3(b) is amended in the heading by striking ``Five
(Determining the Sentence)'' and inserting ``Five (Determining the
Sentencing Range and Options Under the Guidelines)''.
The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is
amended--
in Note 3(B) by striking ``The Commission does not foreclose the
possibility that there may be some unusual set of circumstances in
which the exclusion of such conduct may not adequately reflect the
defendant's culpability; in such a case, an upward departure may be
warranted.'';
and in Note 6(B) by striking ``In a case in which creation of risk
is not adequately taken into account by the applicable offense
guideline, an upward departure may be warranted. See generally Sec.
1B1.4 (Information to be Used in Imposing Sentence); Sec. 5K2.0
(Grounds for Departure).''.
Section 1B1.4 is amended--
in the heading by striking ``(Selecting a Point Within the
Guideline Range or Departing from the Guidelines)'';
and by striking ``In determining the sentence to impose within the
guideline range, or whether a departure from the guidelines is
warranted'' and inserting ``In determining the sentence to impose''.
The Commentary to 1B1.4 captioned ``Background'' is amended by
striking the following:
``This section distinguishes between factors that determine the
applicable guideline sentencing range (Sec. 1B1.3) and information
that a court may consider in imposing a sentence within that range. The
section is based on 18 U.S.C. 3661, which recodifies 18 U.S.C. 3577.
The recodification of this 1970 statute in 1984 with an effective date
of 1987 (99 Stat. 1728), makes it clear that Congress intended that no
limitation would be placed on the information that a court may consider
in imposing an appropriate sentence under the future guideline
sentencing system. A court is not precluded from considering
information that the guidelines do not take into account in determining
a sentence within the guideline range or from considering that
information in determining whether and to what extent to depart from
the guidelines. For example, if the defendant committed two robberies,
but as part of a plea negotiation entered a guilty plea to only one,
the robbery that was not taken into account by the guidelines would
provide a reason for sentencing at the top of the guideline range and
may provide a reason for an upward departure. Some policy statements
do, however, express a Commission policy that certain factors should
not be considered for any purpose, or should be considered only for
limited purposes. See, e.g., Chapter Five, Part H (Specific Offender
Characteristics).'';
and inserting the following:
``This section distinguishes between factors that determine the
applicable guideline sentencing range (Sec. 1B1.3) and information
that a court may consider in imposing a sentence. The section is based
on 18 U.S.C. 3661, which recodifies 18 U.S.C. 3577. The recodification
of this 1970 statute in 1984 with an effective date of 1987 (99 Stat.
1728), makes it clear that Congress intended that no limitation would
be placed on the information that a court may consider in imposing an
appropriate sentence under the future guideline sentencing system. A
court is not precluded from considering information that the guidelines
do not take into account. For example, if the defendant committed two
robberies, but as part of a plea negotiation entered a guilty plea to
only one, the robbery that was not taken into account by the guidelines
may provide a reason for sentencing at the top of, or above, the
guideline range.''.
Section 1B1.7 is amended by striking the following:
``The Commentary that accompanies the guideline sections may serve
a number of purposes. First, it may interpret the guideline or explain
how it is to be applied. Failure to follow such commentary could
constitute an incorrect application of the guidelines, subjecting the
sentence to possible reversal on appeal. See 18 U.S.C. 3742. Second,
the commentary may suggest circumstances which, in the view of the
Commission, may warrant departure from the guidelines. Such commentary
is to be treated as the legal equivalent of a policy statement.
Finally, the commentary may provide background information, including
factors considered in promulgating the guideline or reasons underlying
promulgation of the guideline. As with a policy statement, such
commentary may provide guidance in assessing the reasonableness of any
departure from the guidelines.'';
and inserting the following:
``The Commentary that accompanies the guideline sections may serve
a number of purposes. It may interpret the guideline or explain how it
is to be applied. Failure to follow such commentary could constitute an
incorrect application of the guidelines, subjecting the sentence to
possible reversal on appeal. See 18 U.S.C. 3742. In addition, the
commentary may provide background information, including factors
considered in promulgating the guideline or reasons underlying
promulgation of the guideline.''.
Section 1B1.8(b)(5) is amended by striking ``in determining
whether, or to what extent, a downward departure from the guidelines is
warranted pursuant to a government motion under Sec. 5K1.1
(Substantial Assistance to Authorities)'' and inserting ``in
determining whether, or to what extent, to impose a sentence that is
below the otherwise applicable guideline range pursuant to a government
motion under Sec. 5K1.1 (Substantial Assistance to Authorities)''.
The Commentary to Sec. 1B1.8 captioned ``Application Notes'' is
amended in Note 1 by striking ``Although the guideline itself affects
only the determination of the guideline range, the policy of the
Commission, as a corollary, is that information prohibited from being
used to determine the applicable guideline range shall not be used to
depart upward. In contrast, subsection (b)(5) provides that
consideration of such information is appropriate in determining
whether, and to what extent, a downward departure is warranted pursuant
to a government motion under Sec. 5K1.1 (Substantial Assistance to
Authorities); e.g., a court may refuse to depart downward on the basis
of such information.'' and inserting ``In contrast, subsection (b)(5)
provides that consideration of such information is appropriate in
determining whether, or to what extent, to impose a sentence that is
below the otherwise applicable guideline range pursuant to a government
motion under Sec. 5K1.1 (Substantial Assistance to Authorities). For
example, a court may refuse to

[[Page 19829]]

impose a sentence that is below the otherwise applicable guideline
range on the basis of such information.''.
The Commentary to Sec. 1B1.9 captioned ``Application Notes'' is
amended in Note 2 by adding at the end of the paragraph the following:
``For example, in a case where the defendant wore or displayed an
official, or counterfeit official, insignia or uniform received in
violation of 18 U.S.C. 716 while committing an offense covered by the
guidelines, it would be appropriate for the court to consider this fact
as an aggravating factor in determining the appropriate sentence even
though section 716 is a Class B misdemeanor not covered by the
guidelines. See Violence Against Women and Department of Justice
Reauthorization Act of 2005, Pub. L. 109-162, 1191(c).''.
The Commentary to Sec. 1B1.10 captioned ``Application Notes,'' as
amended by Amendment 4 of this document, is further amended--
in Note 1(A) by striking ``(i.e., the guideline range that
corresponds to the offense level and criminal history category
determined pursuant to Sec. 1B1.1(a), which is determined before
consideration of any departure provision in the Guidelines Manual or
any variance)'' and inserting ``(i.e., the guideline range that
corresponds to the offense level and criminal history category
determined pursuant to Sec. 1B1.1(a)(1)-(7), which is determined
before consideration of Part K of Chapter Five and Sec. 1B1.1(b))'';
and in Note 3 by striking ``(constituting a downward departure or
variance)'' and inserting ``(constituting a sentence that is below the
otherwise applicable guideline range)''; by striking ``(representing a
downward departure of 20 percent'' and inserting ``(representing a
reduction of 20 percent''; and by striking ``(authorizing, upon
government motion, a downward departure based on the defendant's
substantial assistance)'' and inserting ``(authorizing the court, upon
government motion, to impose a sentence that is below the otherwise
applicable guideline range based on the defendant's substantial
assistance)''.
Section 1B1.12 is amended by striking ``sufficient to warrant an
upward departure from that guideline range. United States v. R.L.C.,
503 U.S. 291 (1992)'' and inserting ``sufficient to warrant imposing a
sentence greater than that guideline range in determining the
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a). See 18
U.S.C. 5037(c); United States v. R.L.C., 503 U.S. 291 (1992)''.
Chapter Two is amended in the Introductory Commentary by striking
``Chapter Four, Parts B (Career Offenders and Criminal Livelihood) and
C (Adjustment for Certain Zero-Point Offenders); and Chapter Five, Part
K (Departures)'' and inserting: ``and Chapter Four, Parts B (Career
Offenders and Criminal Livelihood) and C (Adjustment for Certain Zero-
Point Offenders)''.
The Commentary to Sec. 2A1.1 captioned ``Application Notes'' is
amended in Note 2 by striking the following:
``Imposition of Life Sentence.--
(A) Offenses Involving Premeditated Killing.--In the case of
premeditated killing, life imprisonment is the appropriate sentence if
a sentence of death is not imposed. A downward departure would not be
appropriate in such a case. A downward departure from a mandatory
statutory term of life imprisonment is permissible only in cases in
which the government files a motion for a downward departure for the
defendant's substantial assistance, as provided in 18 U.S.C. 3553(e).
(B) Felony Murder.--If the defendant did not cause the death
intentionally or knowingly, a downward departure may be warranted. For
example, a downward departure may be warranted if in robbing a bank,
the defendant merely passed a note to the teller, as a result of which
the teller had a heart attack and died. The extent of the departure
should be based upon the defendant's state of mind (e.g., recklessness
or negligence), the degree of risk inherent in the conduct, and the
nature of the underlying offense conduct. However, departure below the
minimum guideline sentence provided for second degree murder in Sec.
2A1.2 (Second Degree Murder) is not likely to be appropriate. Also,
because death obviously is an aggravating factor, it necessarily would
be inappropriate to impose a sentence at a level below that which the
guideline for the underlying offense requires in the absence of
death.'';
and inserting the following:
``Offenses Involving Premeditated Killing.--In the case of
premeditated killing, life imprisonment is the appropriate sentence if
a sentence of death is not imposed. If a mandatory statutory term of
life imprisonment applies, a lesser term of imprisonment is permissible
only in cases in which the government files a motion pertaining to the
defendant's substantial assistance, as provided in 18 U.S.C.
3553(e).''.
The Commentary to Sec. 2A1.2 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. Upward Departure Provision.--If the defendant's conduct was
exceptionally heinous, cruel, brutal, or degrading to the victim, an
upward departure may be warranted. See Sec. 5K2.8 (Extreme
Conduct).''.
The Commentary to Sec. 2A2.1 captioned ``Application Notes'' is
amended--
in the caption by striking ``Notes'' and inserting ``Note'';
and by striking Note 2 as follows:
``2. Upward Departure Provision.--If the offense created a
substantial risk of death or serious bodily injury to more than one
person, an upward departure may be warranted.''.
The Commentary to Sec. 2A2.4 captioned ``Application Notes'' is
amended by striking Note 3 as follows:
``3. Upward Departure Provision.--The base offense level does not
assume any significant disruption of governmental functions. In
situations involving such disruption, an upward departure may be
warranted. See Sec. 5K2.7 (Disruption of Governmental Function).''.
The Commentary to Sec. 2A3.1 captioned ``Application Notes'' is
amended by striking Note 6 as follows:
``6. Upward Departure Provision.--If a victim was sexually abused
by more than one participant, an upward departure may be warranted. See
Sec. 5K2.8 (Extreme Conduct).''.
The Commentary to Sec. 2A3.2 captioned ``Application Notes'' is
amended by striking Note 6 as follows:
``6. Upward Departure Consideration.--There may be cases in which
the offense level determined under this guideline substantially
understates the seriousness of the offense. In such cases, an upward
departure may be warranted. For example, an upward departure may be
warranted if the defendant committed the criminal sexual act in
furtherance of a commercial scheme such as pandering, transporting
persons for the purpose of prostitution, or the production of
pornography.''.
The Commentary to Sec. 2A3.6 captioned ``Application Notes'' is
amended by striking Note 4 as follows:
``4. Upward Departure.--In a case in which the guideline sentence
is determined under subsection (a), a sentence above the minimum term
required by 18 U.S.C. 2250(d) is an upward departure from the guideline
sentence. A departure may be warranted, for example, in a case
involving a sex offense committed against a minor or if the offense
resulted in serious bodily injury to a minor.''.
The Commentary to Sec. 2A5.3 captioned ``Application Notes'' is
amended--
in the caption by striking ``Notes'' and inserting ``Note'';
and by striking Note 2 as follows:

[[Page 19830]]

``2. If the conduct intentionally or recklessly endangered the
safety of the aircraft or passengers, an upward departure may be
warranted.''.
The Commentary to Sec. 2A6.1 captioned ``Application Notes'' is
amended by striking Note 4 as follows:
``4. Departure Provisions.--
(A) In General.--The Commission recognizes that offenses covered by
this guideline may include a particularly wide range of conduct and
that it is not possible to include all of the potentially relevant
circumstances in the offense level. Factors not incorporated in the
guideline may be considered by the court in determining whether a
departure from the guidelines is warranted. See Chapter Five, Part K
(Departures).
(B) Multiple Threats, False Liens or Encumbrances, or Victims;
Pecuniary Harm.--If the offense involved (i) substantially more than
two threatening communications to the same victim, (ii) a prolonged
period of making harassing communications to the same victim, (iii)
substantially more than two false liens or encumbrances against the
real or personal property of the same victim, (iv) multiple victims, or
(v) substantial pecuniary harm to a victim, an upward departure may be
warranted.''.
The Commentary to Sec. 2A6.2 captioned ``Application Notes'' is
amended by striking Note 5 as follows:
``5. If the defendant received an enhancement under subsection
(b)(1) but that enhancement does not adequately reflect the extent or
seriousness of the conduct involved, an upward departure may be
warranted. For example, an upward departure may be warranted if the
defendant stalked the victim on many occasions over a prolonged period
of time.''.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended--
in Note 8(A) by striking ``If, in a particular case, however, more
than one of the enumerated factors applied, an upward departure may be
warranted.'';
and by striking Note 21 as follows:
``21. Departure Considerations.--
(A) Upward Departure Considerations.--There may be cases in which
the offense level determined under this guideline substantially
understates the seriousness of the offense. In such cases, an upward
departure may be warranted. The following is a non-exhaustive list of
factors that the court may consider in determining whether an upward
departure is warranted:
(i) A primary objective of the offense was an aggravating, non-
monetary objective. For example, a primary objective of the offense was
to inflict emotional harm.
(ii) The offense caused or risked substantial non-monetary harm.
For example, the offense caused physical harm, psychological harm, or
severe emotional trauma, or resulted in a substantial invasion of a
privacy interest (through, for example, the theft of personal
information such as medical, educational, or financial records). An
upward departure would be warranted, for example, in an 18 U.S.C. 1030
offense involving damage to a protected computer, if, as a result of
that offense, death resulted. An upward departure also would be
warranted, for example, in a case involving animal enterprise terrorism
under 18 U.S.C. 43, if, in the course of the offense, serious bodily
injury or death resulted, or substantial scientific research or
information were destroyed. Similarly, an upward departure would be
warranted in a case involving conduct described in 18 U.S.C. 670 if the
offense resulted in serious bodily injury or death, including serious
bodily injury or death resulting from the use of the pre-retail medical
product.
(iii) The offense involved a substantial amount of interest of any
kind, finance charges, late fees, penalties, amounts based on an
agreed-upon return or rate of return, or other similar costs, not
included in the determination of loss for purposes of subsection
(b)(1).
(iv) The offense created a risk of substantial loss beyond the loss
determined for purposes of subsection (b)(1), such as a risk of a
significant disruption of a national financial market.
(v) In a case involving stolen information from a `protected
computer', as defined in 18 U.S.C. 1030(e)(2), the defendant sought the
stolen information to further a broader criminal purpose.
(vi) In a case involving access devices or unlawfully produced or
unlawfully obtained means of identification:
(I) The offense caused substantial harm to the victim's reputation,
or the victim suffered a substantial inconvenience related to repairing
the victim's reputation.
(II) An individual whose means of identification the defendant used
to obtain unlawful means of identification is erroneously arrested or
denied a job because an arrest record has been made in that
individual's name.
(III) The defendant produced or obtained numerous means of
identification with respect to one individual and essentially assumed
that individual's identity.
(B) Upward Departure for Debilitating Impact on a Critical
Infrastructure.--An upward departure would be warranted in a case in
which subsection (b)(19)(A)(iii) applies and the disruption to the
critical infrastructure(s) is so substantial as to have a debilitating
impact on national security, national economic security, national
public health or safety, or any combination of those matters.
(C) Downward Departure Consideration.--There may be cases in which
the offense level determined under this guideline substantially
overstates the seriousness of the offense. In such cases, a downward
departure may be warranted.
For example, a securities fraud involving a fraudulent statement
made publicly to the market may produce an aggregate loss amount that
is substantial but diffuse, with relatively small loss amounts suffered
by a relatively large number of victims. In such a case, the loss table
in subsection (b)(1) and the victims table in subsection (b)(2) may
combine to produce an offense level that substantially overstates the
seriousness of the offense. If so, a downward departure may be
warranted.
(D) Downward Departure for Major Disaster or Emergency Victims.--If
(i) the minimum offense level of level 12 in subsection (b)(12)
applies; (ii) the defendant sustained damage, loss, hardship, or
suffering caused by a major disaster or an emergency as those terms are
defined in 42 U.S.C. 5122; and (iii) the benefits received illegally
were only an extension or overpayment of benefits received
legitimately, a downward departure may be warranted.''.
The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is
amended by striking Note 9 as follows:
``9. Upward Departure Provision.--There may be cases in which the
offense level determined under this guideline substantially understates
the seriousness of the offense. In such cases, an upward departure may
be warranted. For example, an upward departure may be warranted if (A)
in addition to cultural heritage resources or paleontological
resources, the offense involved theft of, damage to, or destruction of,
items that are not cultural heritage resources (such as an offense
involving the theft from a national cemetery of lawnmowers and other
administrative property in addition to historic gravemarkers or other
cultural heritage resources) or paleontological resources; or (B) the
offense involved a cultural heritage resource that has profound
significance to cultural identity (e.g., the Statue of Liberty or the
Liberty Bell).''.

[[Page 19831]]

The Commentary to Sec. 2B2.1 captioned ``Background'' is amended
by striking ``Weapon use would be a ground for upward departure.''.
The Commentary to Sec. 2B3.1 captioned ``Application Notes,'' as
amended by Amendment 1 of this document, is further amended--
by striking Note 5 as follows:
``5. Upward Departure Provision.--If the defendant intended to
murder the victim, an upward departure may be warranted; see Sec.
2A2.1 (Assault with Intent to Commit Murder; Attempted Murder).'';
and by redesignating Note 6 as Note 5.
The Commentary to Sec. 2B3.2 captioned ``Application Notes,'' as
amended by Amendment 1 of this document, is further amended by striking
Notes 7 and 8 as follows:
``7. Upward Departure Based on Threat of Death or Serious Bodily
Injury to Numerous Victims.--If the offense involved the threat of
death or serious bodily injury to numerous victims (e.g., in the case
of a plan to derail a passenger train or poison consumer products), an
upward departure may be warranted.
8. Upward Departure Based on Organized Criminal Activity or Threat
to Family Member of Victim.--If the offense involved organized criminal
activity, or a threat to a family member of the victim, an upward
departure may be warranted.''.
The Commentary to Sec. 2B5.3 captioned ``Application Notes'' is
amended by striking Note 5 as follows:
``5. Departure Considerations.--If the offense level determined
under this guideline substantially understates or overstates the
seriousness of the offense, a departure may be warranted. The following
is a non-exhaustive list of factors that the court may consider in
determining whether a departure may be warranted:
(A) The offense involved substantial harm to the reputation of the
copyright or trademark owner.
(B) The offense was committed in connection with, or in furtherance
of, the criminal activities of a national, or international, organized
criminal enterprise.
(C) The method used to calculate the infringement amount is based
upon a formula or extrapolation that results in an estimated amount
that may substantially exceed the actual pecuniary harm to the
copyright or trademark owner.
(D) The offense resulted in death or serious bodily injury.''.
The Commentary to Sec. 2C1.1 captioned ``Application Notes'' is
amended--
in Note 5 by striking ``Chapter Three, Parts A-D'' and inserting
``Chapter Three, Parts A-E'';
and by striking Note 7 as follows:
``7. Upward Departure Provisions.--In some cases the monetary value
of the unlawful payment may not be known or may not adequately reflect
the seriousness of the offense. For example, a small payment may be
made in exchange for the falsification of inspection records for a
shipment of defective parachutes or the destruction of evidence in a
major narcotics case. In part, this issue is addressed by the
enhancements in Sec. 2C1.1(b)(2) and (c)(1), (2), and (3). However, in
cases in which the seriousness of the offense is still not adequately
reflected, an upward departure is warranted. See Chapter Five, Part K
(Departures).
In a case in which the court finds that the defendant's conduct was
part of a systematic or pervasive corruption of a governmental
function, process, or office that may cause loss of public confidence
in government, an upward departure may be warranted. See Sec. 5K2.7
(Disruption of Governmental Function).''.
The Commentary to Sec. 2C1.8 captioned ``Application Notes'' is
amended by striking Note 4 as follows:
``4. Departure Provision.--In a case in which the defendant's
conduct was part of a systematic or pervasive corruption of a
governmental function, process, or office that may cause loss of public
confidence in government, an upward departure may be warranted.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended--
in Note 3 by striking the following paragraph:
``An upward departure nonetheless may be warranted when the mixture
or substance counted in the Drug Quantity Table is combined with other,
non-countable material in an unusually sophisticated manner in order to
avoid detection.'';
in Note 10 by striking the following paragraph:
``In the case of liquid LSD (LSD that has not been placed onto a
carrier medium), using the weight of the LSD alone to calculate the
offense level may not adequately reflect the seriousness of the
offense. In such a case, an upward departure may be warranted.'';
in Note 18(A) by striking ``In some cases, the enhancement under
subsection (b)(14)(A) may not account adequately for the seriousness of
the environmental harm or other threat to public health or safety
(including the health or safety of law enforcement and cleanup
personnel). In such cases, an upward departure may be warranted.
Additionally, in determining'' and inserting ``In determining'';
in Note 22 by striking the following:
``Application of Subsection (e)(1).--
(A) Definition.--For purposes of this guideline, `sexual offense'
means a `sexual act' or `sexual contact' as those terms are defined in
18 U.S.C. 2246(2) and (3), respectively.
(B) Upward Departure Provision.--If the defendant committed a
sexual offense against more than one individual, an upward departure
would be warranted.'',
and inserting the following:
``Application of Subsection (e)(1).--For purposes of this
guideline, `sexual offense' means a `sexual act' or `sexual contact' as
those terms are defined in 18 U.S.C. 2246(2) and (3), respectively.'';
in Note 24 by striking ``a lower sentence imposed (including a
downward departure)'' and inserting ``a lower sentence imposed'';
and by striking Note 27 as follows:
``27. Departure Considerations.--
(A) Downward Departure Based on Drug Quantity in Certain Reverse
Sting Operations.--If, in a reverse sting (an operation in which a
government agent sells or negotiates to sell a controlled substance to
a defendant), the court finds that the government agent set a price for
the controlled substance that was substantially below the market value
of the controlled substance, thereby leading to the defendant's
purchase of a significantly greater quantity of the controlled
substance than his available resources would have allowed him to
purchase except for the artificially low price set by the government
agent, a downward departure may be warranted.
(B) Upward Departure Based on Drug Quantity.--In an extraordinary
case, an upward departure above offense level 38 on the basis of drug
quantity may be warranted. For example, an upward departure may be
warranted where the quantity is at least ten times the minimum quantity
required for level 38. Similarly, in the case of a controlled substance
for which the maximum offense level is less than level 38, an upward
departure may be warranted if the drug quantity substantially exceeds
the quantity for the highest offense level established for that
particular controlled substance.
(C) Upward Departure Based on Unusually High Purity.--Trafficking
in controlled substances, compounds, or mixtures of unusually high
purity may warrant an upward departure, except in the case of PCP,
amphetamine, methamphetamine, hydrocodone, or oxycodone for which the
guideline itself provides for the consideration of purity

[[Page 19832]]

(see the footnote to the Drug Quantity Table). The purity of the
controlled substance, particularly in the case of heroin, may be
relevant in the sentencing process because it is probative of the
defendant's role or position in the chain of distribution. Since
controlled substances are often diluted and combined with other
substances as they pass down the chain of distribution, the fact that a
defendant is in possession of unusually pure narcotics may indicate a
prominent role in the criminal enterprise and proximity to the source
of the drugs. As large quantities are normally associated with high
purities, this factor is particularly relevant where smaller quantities
are involved.
(D) Departure Based on Potency of Synthetic Cathinones.--In
addition to providing converted drug weights for specific controlled
substances and groups of substances, the Drug Conversion Tables provide
converted drug weights for certain classes of controlled substances,
such as synthetic cathinones. In the case of a synthetic cathinone that
is not specifically referenced in this guideline, the converted drug
weight for the class should be used to determine the appropriate
offense level. However, there may be cases in which a substantially
lesser or greater quantity of a synthetic cathinone is needed to
produce an effect on the central nervous system similar to the effect
produced by a typical synthetic cathinone in the class, such as
methcathinone or alpha-PVP. In such a case, a departure may be
warranted. For example, an upward departure may be warranted in cases
involving MDPV, a substance of which a lesser quantity is usually
needed to produce an effect on the central nervous system similar to
the effect produced by a typical synthetic cathinone. In contrast, a
downward departure may be warranted in cases involving methylone, a
substance of which a greater quantity is usually needed to produce an
effect on the central nervous system similar to the effect produced by
a typical synthetic cathinone.
(E) Departures for Certain Cases involving Synthetic
Cannabinoids.--
(i) Departure Based on Concentration of Synthetic Cannabinoids.--
Synthetic cannabinoids are manufactured as powder or crystalline
substances. The concentrated substance is then usually sprayed on or
soaked into a plant or other base material, and trafficked as part of a
mixture. Nonetheless, there may be cases in which the substance
involved in the offense is a synthetic cannabinoid not combined with
any other substance. In such a case, an upward departure would be
warranted.
There also may be cases in which the substance involved in the
offense is a mixture containing a synthetic cannabinoid diluted with an
unusually high quantity of base material. In such a case, a downward
departure may be warranted.
(ii) Downward Departure Based on Potency of Synthetic
Cannabinoids.--In the case of a synthetic cannabinoid that is not
specifically referenced in this guideline, the converted drug weight
for the class should be used to determine the appropriate offense
level. However, there may be cases in which a substantially greater
quantity of a synthetic cannabinoid is needed to produce an effect on
the central nervous system similar to the effect produced by a typical
synthetic cannabinoid in the class, such as JWH-018 or AM-2201. In such
a case, a downward departure may be warranted.''.
The Commentary to Sec. 2D1.5 captioned ``Application Notes'' is
amended--
by striking Note 2 as follows:
``2. Upward Departure Provision.--If as part of the enterprise the
defendant sanctioned the use of violence, or if the number of persons
managed by the defendant was extremely large, an upward departure may
be warranted.'';
and by redesignating Notes 3 and 4 as Notes 2 and 3, respectively.
The Commentary to Sec. 2D1.7 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. The typical case addressed by this guideline involves small-
scale trafficking in drug paraphernalia (generally from a retail
establishment that also sells items that are not unlawful). In a case
involving a large-scale dealer, distributor, or manufacturer, an upward
departure may be warranted. Conversely, where the offense was not
committed for pecuniary gain (e.g., transportation for the defendant's
personal use), a downward departure may be warranted.''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended--
in Note 1 by striking subparagraph (C) as follows:
``(C) Upward Departure.--In a case involving two or more chemicals
used to manufacture different controlled substances, or to manufacture
one controlled substance by different manufacturing processes, an
upward departure may be warranted if the offense level does not
adequately address the seriousness of the offense.'';
and in Note 4 by striking ``In some cases, the enhancement under
subsection (b)(3) may not adequately account for the seriousness of the
environmental harm or other threat to public health or safety
(including the health or safety of law enforcement and cleanup
personnel). In such cases, an upward departure may be warranted.
Additionally, any costs'' and inserting ``Any costs''.
The Commentary to Sec. 2D1.12 captioned ``Application Notes'' is
amended--
by striking Note 1 as follows:
``1. If the offense involved the large-scale manufacture,
distribution, transportation, exportation, or importation of prohibited
flasks, equipment, chemicals, products, or material, an upward
departure may be warranted.'';
by redesignating Notes 2, 3, and 4 as Notes 1, 2, and 3,
respectively;
and in Note 2 (as so redesignated) by striking ``In some cases, the
enhancement under subsection (b)(2) may not adequately account for the
seriousness of the environmental harm or other threat to public health
or safety (including the health or safety of law enforcement and
cleanup personnel). In such cases, an upward departure may be
warranted. Additionally, any costs'' and inserting ``Any costs''.
The Commentary to Sec. 2D2.1 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. The typical case addressed by this guideline involves possession
of a controlled substance by the defendant for the defendant's own
consumption. Where the circumstances establish intended consumption by
a person other than the defendant, an upward departure may be
warranted.''.
The Commentary to Sec. 2D2.3 captioned ``Background'' is amended
by striking ``If no or only a few passengers were placed at risk, a
downward departure may be warranted. If the offense resulted in the
death or serious bodily injury of a large number of persons, such that
the resulting offense level under subsection (b) would not adequately
reflect the seriousness of the offense, an upward departure may be
warranted.''.
The Commentary to Sec. 2E1.1 captioned ``Application Notes'' is
amended in Note 4 by striking ``If this treatment produces an anomalous
result in a particular case, a guideline departure may be warranted.''.
The Commentary to Sec. 2E3.1 captioned ``Application Notes'' is
amended--

[[Page 19833]]

in the caption by striking ``Notes'' and inserting ``Note'';
and by striking Note 2 as follows:
``2. Upward Departure Provision.--The base offense levels provided
for animal fighting ventures in subsection (a)(1) and (a)(3) reflect
that an animal fighting venture involves one or more violent fights
between animals and that a defeated animal often is severely injured in
the fight, dies as a result of the fight, or is killed afterward.
Nonetheless, there may be cases in which the offense level determined
under this guideline substantially understates the seriousness of the
offense. In such a case, an upward departure may be warranted. For
example, an upward departure may be warranted if (A) the offense
involved extraordinary cruelty to an animal beyond the violence
inherent in such a venture (such as by killing an animal in a way that
prolongs the suffering of the animal); or (B) the offense involved
animal fighting on an exceptional scale (such as an offense involving
an unusually large number of animals).''.
The Commentary to Sec. 2G1.1 captioned ``Application Notes'' is
amended--
in Note 2 by striking ``If bodily injury results, an upward
departure may be warranted. See Chapter Five, Part K (Departures).'';
and by striking Note 6 as follows:
``6. Upward Departure Provision.--If the offense involved more than
ten victims, an upward departure may be warranted.''.
The Commentary to Sec. 2G1.3 captioned ``Application Notes'' is
amended by striking Note 7 as follows:
``7. Upward Departure Provision.--If the offense involved more than
ten minors, an upward departure may be warranted.''.
The Commentary to Sec. 2G2.1 captioned ``Application Notes'' is
amended by striking Note 8 as follows:
``8. Upward Departure Provision.--An upward departure may be
warranted if the offense involved more than 10 minors.''.
The Commentary to Sec. 2G2.2 captioned ``Application Notes'' is
amended--
in Note 6(B)(i) by striking ``If the number of images substantially
underrepresents the number of minors depicted, an upward departure may
be warranted.'';
in Note 6(B)(ii) by striking ``If the length of the visual
depiction is substantially more than 5 minutes, an upward departure may
be warranted.'';
and by striking Note 9 as follows:
``9. Upward Departure Provision.--If the defendant engaged in the
sexual abuse or exploitation of a minor at any time (whether or not
such abuse or exploitation occurred during the course of the offense or
resulted in a conviction for such conduct) and subsection (b)(5) does
not apply, an upward departure may be warranted. In addition, an upward
departure may be warranted if the defendant received an enhancement
under subsection (b)(5) but that enhancement does not adequately
reflect the seriousness of the sexual abuse or exploitation
involved.''.
The Commentary to Sec. 2H2.1 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. Upward Departure Provision.--If the offense resulted in bodily
injury or significant property damage, or involved corrupting a public
official, an upward departure may be warranted. See Chapter Five, Part
K (Departures).''.
The Commentary to Sec. 2H3.1 captioned ``Application Notes'' is
amended by striking Note 5 as follows:
``5. Upward Departure.--There may be cases in which the offense
level determined under this guideline substantially understates the
seriousness of the offense. In such a case, an upward departure may be
warranted. The following are examples of cases in which an upward
departure may be warranted:
(A) The offense involved personal information, means of
identification, confidential phone records information, or tax return
information of a substantial number of individuals.
(B) The offense caused or risked substantial non-monetary harm
(e.g., physical harm, psychological harm, or severe emotional trauma,
or resulted in a substantial invasion of privacy interest) to
individuals whose private or protected information was obtained.''.
The Commentary to Sec. 2H4.1 captioned ``Application Notes'' is
amended by striking Notes 3 and 4 as follows:
``3. If the offense involved the holding of more than ten victims
in a condition of peonage or involuntary servitude, an upward departure
may be warranted.
4. In a case in which the defendant was convicted under 18 U.S.C.
1589(b) or 1593A, a downward departure may be warranted if the
defendant benefitted from participating in a venture described in those
sections without knowing that (i.e., in reckless disregard of the fact
that) the venture had engaged in the criminal activity described in
those sections.''.
The Commentary to Sec. 2J1.2 captioned ``Application Notes'' is
amended--
by striking Note 4 as follows:
``4. Upward Departure Considerations.--If a weapon was used, or
bodily injury or significant property damage resulted, an upward
departure may be warranted. See Chapter Five, Part K (Departures). In a
case involving an act of extreme violence (for example, retaliating
against a government witness by throwing acid in the witness's face) or
a particularly serious sex offense, an upward departure would be
warranted.'';
and by redesignating Note 5 as Note 4.
The Commentary to Sec. 2J1.3 captioned ``Application Notes'' is
amended--
by striking Note 4 as follows:
``4. If a weapon was used, or bodily injury or significant property
damage resulted, an upward departure may be warranted. See Chapter
Five, Part K (Departures).'';
and by redesignating Note 5 as Note 4.
The Commentary to Sec. 2J1.6 captioned ``Application Notes'' is
amended--
by striking Note 4 as follows:
``4. If a defendant is convicted of both the underlying offense and
the failure to appear count, and the defendant committed additional
acts of obstructive behavior (e.g., perjury) during the investigation,
prosecution, or sentencing of the instant offense, an upward departure
may be warranted. The upward departure will ensure an enhanced sentence
for obstructive conduct for which no adjustment under Sec. 3C1.1
(Obstructing or Impeding the Administration of Justice) is made because
of the operation of the rules set out in Application Note 3.'';
and by redesignating Note 5 as Note 4.
The Commentary to Sec. 2K1.3 captioned ``Application Notes'' is
amended--
by striking Note 10 as follows:
``10. An upward departure may be warranted in any of the following
circumstances: (A) the quantity of explosive materials significantly
exceeded 1000 pounds; (B) the explosive materials were of a nature more
volatile or dangerous than dynamite or conventional powder explosives
(e.g., plastic explosives); (C) the defendant knowingly distributed
explosive materials to a person under twenty-one years of age; or (D)
the offense posed a substantial risk of death or bodily injury to
multiple individuals.'';
by redesignating Note 11 as Note 10;
and in Note 10 (as so redesignated) by striking ``However, where
the defendant used or possessed a firearm or explosive to facilitate
another firearms or explosives offense (e.g., the defendant used or
possessed a firearm to protect the delivery of an unlawful shipment of
explosives), an upward departure under

[[Page 19834]]

Sec. 5K2.6 (Weapons and Dangerous Instrumentalities) may be
warranted.''.
The Commentary to Sec. 2K1.4 captioned ``Application Notes'' is
amended by striking Note 3 as follows:
``3. Upward Departure Provision.--If bodily injury resulted, an
upward departure may be warranted. See Chapter Five, Part K
(Departures).''.
Section 2K2.1(b)(10)(B), as redesignated by Amendment 3 of this
document, is amended by striking ``, before application of subsection
(b) of Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History
Category)''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes,'' as
amended by Amendment 3 of this document, is further amended--
in Note 7 by striking the following:
``Offenses involving such devices cover a wide range of offense
conduct and involve different degrees of risk to the public welfare
depending on the type of destructive device involved and the location
or manner in which that destructive device was possessed or
transported. For example, a pipe bomb in a populated train station
creates a substantially greater risk to the public welfare, and a
substantially greater risk of death or serious bodily injury, than an
incendiary device in an isolated area. In a case in which the
cumulative result of the increased base offense level and the
enhancement under subsection (b)(3) does not adequately capture the
seriousness of the offense because of the type of destructive device
involved, the risk to the public welfare, or the risk of death or
serious bodily injury that the destructive device created, an upward
departure may be warranted. See also Sec. Sec. 5K2.1 (Death), 5K2.2
(Physical Injury), and 5K2.14 (Public Welfare).'';
by striking Note 11 as follows:
``11. Upward Departure Provisions.--An upward departure may be
warranted in any of the following circumstances: (A) the number of
firearms substantially exceeded 200; (B) the offense involved multiple
National Firearms Act weapons (e.g., machineguns, destructive devices),
military type assault rifles, non-detectable (`plastic') firearms
(defined at 18 U.S.C. 922(p)); (C) the offense involved large
quantities of armor-piercing ammunition (defined at 18 U.S.C.
921(a)(17)(B)); or (D) the offense posed a substantial risk of death or
bodily injury to multiple individuals (see Application Note 7).'';
by redesignating Notes 12, 13, and 14 as Notes 11, 12, and 13,
respectively;
in Note 12 (as so redesignated)--
by striking subparagraph (B) as follows:
``(B) Upward Departure Provision.--If the defendant transported,
transferred, sold, or otherwise disposed of, or purchased or received
with intent to transport, transfer, sell, or otherwise dispose of,
substantially more than 25 firearms, an upward departure may be
warranted.'';
and by redesignating subparagraph (C) as subparagraph (B);
and in Note 13 (as so redesignated)--
by striking subparagraph (D) as follows:
``(D) Upward Departure Provision.--In a case in which the defendant
used or possessed a firearm or explosive to facilitate another firearms
or explosives offense (e.g., the defendant used or possessed a firearm
to protect the delivery of an unlawful shipment of explosives), an
upward departure under Sec. 5K2.6 (Weapons and Dangerous
Instrumentalities) may be warranted.'';
and by redesignating subparagraph (E) as subparagraph (D).
Section 2K2.4(a) is amended by striking ``Chapters Three
(Adjustments) and Four (Criminal History and Criminal Livelihood)'' and
inserting ``Chapters Three (Adjustments), Parts A through E, and Four
(Criminal History and Criminal Livelihood)''.
Section 2K2.4(b) is amended by striking ``Chapters Three and Four''
and inserting ``Chapters Three, Parts A through E, and Four''.
Section 2K2.4(c) is amended by striking ``Chapters Three and Four''
and inserting ``Chapters Three, Parts A through E, and Four''.
The Commentary to Sec. 2K2.4 captioned ``Application Notes,'' as
amended by Amendment 3 of this document, is further amended--
in Note 2 by striking the following:
``Application of Subsection (b).--
(A) In General.--Sections 924(c) and 929(a) of title 18, United
States Code, provide mandatory minimum terms of imprisonment (e.g., not
less than five years). Except as provided in subsection (c), in a case
in which the defendant is convicted under 18 U.S.C. 924(c) or 929(a),
the guideline sentence is the minimum term required by the relevant
statute. Each of 18 U.S.C. 924(c) and 929(a) also requires that a term
of imprisonment imposed under that section shall run consecutively to
any other term of imprisonment.
(B) Upward Departure Provision.--In a case in which the guideline
sentence is determined under subsection (b), a sentence above the
minimum term required by 18 U.S.C. 924(c) or 929(a) is an upward
departure from the guideline sentence. A departure may be warranted,
for example, to reflect the seriousness of the defendant's criminal
history in a case in which the defendant is convicted of an 18 U.S.C.
924(c) or 929(a) offense but is not determined to be a career offender
under Sec. 4B1.1.'';
and inserting the following:
``Application of Subsection (b).--Sections 924(c) and 929(a) of
title 18, United States Code, provide mandatory minimum terms of
imprisonment (e.g., not less than five years). Except as provided in
subsection (c), in a case in which the defendant is convicted under 18
U.S.C. 924(c) or 929(a), the guideline sentence is the minimum term
required by the relevant statute. Each of 18 U.S.C. 924(c) and 929(a)
also requires that a term of imprisonment imposed under that section
shall run consecutively to any other term of imprisonment.'';
in Note 4 by striking the subparagraph (C) as follows:
``(C) Upward Departure Provision.--In a few cases in which the
defendant is determined not to be a career offender, the offense level
for the underlying offense determined under the preceding paragraphs
may result in a guideline range that, when combined with the mandatory
consecutive sentence under 18 U.S.C. 844(h), 924(c), or 929(a),
produces a total maximum penalty that is less than the maximum of the
guideline range that would have resulted had there not been a count of
conviction under 18 U.S.C. 844(h), 924(c), or 929(a) (i.e., the
guideline range that would have resulted if the enhancements for
possession, use, or discharge of a firearm had been applied). In such a
case, an upward departure may be warranted so that the conviction under
18 U.S.C. 844(h), 924(c), or 929(a) does not result in a decrease in
the total punishment. An upward departure under this paragraph shall
not exceed the maximum of the guideline range that would have resulted
had there not been a count of conviction under 18 U.S.C. 844(h),
924(c), or 929(a).'';
and in Note 5 by striking ``Chapter Three (Adjustment) and Chapter
Four (Criminal History and Criminal Livelihood)'' and inserting
``Chapter Three (Adjustment), Parts A through E, and Chapter Four
(Criminal History and Criminal Livelihood)''; and by striking ``no
other adjustments in Chapter Three'' and inserting ``no other
adjustments in Chapter Three, Parts A through D,''.
The Commentary to Sec. 2K2.5 captioned ``Application Notes'' is
amended by striking Note 4 as follows:
``4. Where the firearm was brandished, discharged, or otherwise
used, in a federal facility, federal court facility, or school zone,
and the cross reference from subsection (c)(1) does not

[[Page 19835]]

apply, an upward departure may be warranted.''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended--
in Note 4 by striking ``Application Note 1(M) of Sec. 1B1.1'' and
inserting ``Application Note 1(L) of Sec. 1B1.1'';
and by striking Note 7 as follows:
``7. Upward Departure Provisions.--An upward departure may be
warranted in any of the following cases:
(A) The defendant smuggled, transported, or harbored an alien
knowing that the alien intended to enter the United States to engage in
subversive activity, drug trafficking, or other serious criminal
behavior.
(B) The defendant smuggled, transported, or harbored an alien the
defendant knew was inadmissible for reasons of security and related
grounds, as set forth under 8 U.S.C. 1182(a)(3).
(C) The offense involved substantially more than 100 aliens.''.
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is
amended by striking Notes 6, 7, and 8 as follows:
``6. Departure Based on Seriousness of a Prior Offense.--There may
be cases in which the offense level provided by an enhancement in
subsection (b)(2) or (b)(3) substantially understates or overstates the
seriousness of the conduct underlying the prior offense, because (A)
the length of the sentence imposed does not reflect the seriousness of
the prior offense; (B) the prior conviction is too remote to receive
criminal history points (see Sec. 4A1.2(e)); or (C) the time actually
served was substantially less than the length of the sentence imposed
for the prior offense. In such a case, a departure may be warranted.
7. Departure Based on Time Served in State Custody.--In a case in
which the defendant is located by immigration authorities while the
defendant is serving time in state custody, whether pre- or post-
conviction, for a state offense, the time served is not covered by an
adjustment under Sec. 5G1.3(b) and, accordingly, is not covered by a
departure under Sec. 5K2.23 (Discharged Terms of Imprisonment). See
Sec. 5G1.3(a). In such a case, the court may consider whether a
departure is appropriate to reflect all or part of the time served in
state custody, from the time immigration authorities locate the
defendant until the service of the federal sentence commences, that the
court determines will not be credited to the federal sentence by the
Bureau of Prisons. Any such departure should be fashioned to achieve a
reasonable punishment for the instant offense.
Such a departure should be considered only in cases where the
departure is not likely to increase the risk to the public from further
crimes of the defendant. In determining whether such a departure is
appropriate, the court should consider, among other things, (A) whether
the defendant engaged in additional criminal activity after illegally
reentering the United States; (B) the seriousness of any such
additional criminal activity, including (1) whether the defendant used
violence or credible threats of violence or possessed a firearm or
other dangerous weapon (or induced another person to do so) in
connection with the criminal activity, (2) whether the criminal
activity resulted in death or serious bodily injury to any person, and
(3) whether the defendant was an organizer, leader, manager, or
supervisor of others in the criminal activity; and (C) the seriousness
of the defendant's other criminal history.
8. Departure Based on Cultural Assimilation.--There may be cases in
which a downward departure may be appropriate on the basis of cultural
assimilation. Such a departure should be considered only in cases where
(A) the defendant formed cultural ties primarily with the United States
from having resided continuously in the United States from childhood,
(B) those cultural ties provided the primary motivation for the
defendant's illegal reentry or continued presence in the United States,
and (C) such a departure is not likely to increase the risk to the
public from further crimes of the defendant.
In determining whether such a departure is appropriate, the court
should consider, among other things, (1) the age in childhood at which
the defendant began residing continuously in the United States, (2)
whether and for how long the defendant attended school in the United
States, (3) the duration of the defendant's continued residence in the
United States, (4) the duration of the defendant's presence outside the
United States, (5) the nature and extent of the defendant's familial
and cultural ties inside the United States, and the nature and extent
of such ties outside the United States, (6) the seriousness of the
defendant's criminal history, and (7) whether the defendant engaged in
additional criminal activity after illegally reentering the United
States.''.
The Commentary to Sec. 2L2.1 captioned ``Application Notes'' is
amended--
by striking Note 3 as follows:
``3. Subsection (b)(3) provides an enhancement if the defendant
knew, believed, or had reason to believe that a passport or visa was to
be used to facilitate the commission of a felony offense, other than an
offense involving violation of the immigration laws. If the defendant
knew, believed, or had reason to believe that the felony offense to be
committed was of an especially serious type, an upward departure may be
warranted.'';
by redesignating Note 4 as Note 3;
and by striking Note 5 as follows:
``5. If the offense involved substantially more than 100 documents,
an upward departure may be warranted.''.
The Commentary to Sec. 2L2.2 captioned ``Application Notes'' is
amended by striking Note 6 as follows:
``6. Upward Departure Provision.--If the defendant fraudulently
obtained or used a United States passport for the purpose of entering
the United States to engage in terrorist activity, an upward departure
may be warranted. See Application Note 4 of the Commentary to Sec.
3A1.4 (Terrorism).''.
The Commentary to Sec. 2M3.1 captioned ``Application Notes'' is
amended--
in Note 2 by striking ``When revelation is likely to cause little
or no harm, a downward departure may be warranted. See Chapter Five,
Part K (Departures).'';
and by striking Note 3 as follows:
``3. The court may depart from the guidelines upon representation
by the President or his duly authorized designee that the imposition of
a sanction other than authorized by the guideline is necessary to
protect national security or further the objectives of the nation's
foreign policy.''.
The Commentary to Sec. 2M4.1 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. Subsection (b)(1) does not distinguish between whether the
offense was committed in peacetime or during time of war or armed
conflict. If the offense was committed when persons were being inducted
for compulsory military service during time of war or armed conflict,
an upward departure may be warranted.''.
The Commentary to Sec. 2M5.1 captioned ``Application Notes'' is
amended by striking Note 3 as follows:
``3. Departure Provisions.--
(A) In General.--In determining the sentence within the applicable
guideline range, the court may consider the degree to which the
violation threatened a security interest of the United States, the
volume of commerce involved, the extent of planning or sophistication,
and whether there were multiple occurrences. Where such factors are
present in an extreme form,

[[Page 19836]]

a departure from the guidelines may be warranted. See Chapter Five,
Part K (Departures).
(B) War or Armed Conflict.--In the case of a violation during time
of war or armed conflict, an upward departure may be warranted.''.
The Commentary to Sec. 2M5.2 captioned ``Application Notes'' is
amended--
in the caption by striking ``Notes'' and inserting ``Note'';
in Note 1 by striking the following:
``The base offense level assumes that the offense conduct was
harmful or had the potential to be harmful to a security or foreign
policy interest of the United States. In the unusual case where the
offense conduct posed no such risk, a downward departure may be
warranted. In the case of a violation during time of war or armed
conflict, an upward departure may be warranted. See Chapter Five, Part
K (Departures).'';
and by striking Note 2 as follows:
``2. In determining the sentence within the applicable guideline
range, the court may consider the degree to which the violation
threatened a security or foreign policy interest of the United States,
the volume of commerce involved, the extent of planning or
sophistication, and whether there were multiple occurrences. Where such
factors are present in an extreme form, a departure from the guidelines
may be warranted.''.
The Commentary to Sec. 2M5.3 captioned ``Application Notes'' is
amended--
in the caption by striking ``Notes'' and inserting ``Note'';
and by striking Note 2 as follows:
``2. Departure Provisions.--
(A) In General.--In determining the sentence within the applicable
guideline range, the court may consider the degree to which the
violation threatened a security interest of the United States, the
volume of the funds or other material support or resources involved,
the extent of planning or sophistication, and whether there were
multiple occurrences. In a case in which such factors are present in an
extreme form, a departure from the guidelines may be warranted. See
Chapter Five, Part K (Departures).
(B) War or Armed Conflict.--In the case of a violation during time
of war or armed conflict, an upward departure may be warranted.''.
The Commentary to Sec. 2N1.1 captioned ``Application Notes'' is
amended--
in the caption by striking ``Notes'' and inserting ``Note'';
by striking Note 1 as follows:
``1. The base offense level reflects that this offense typically
poses a risk of death or serious bodily injury to one or more victims;
or causes, or is intended to cause, bodily injury. Where the offense
posed a substantial risk of death or serious bodily injury to numerous
victims, or caused extreme psychological injury or substantial property
damage or monetary loss, an upward departure may be warranted. In the
unusual case in which the offense did not cause a risk of death or
serious bodily injury, and neither caused nor was intended to cause
bodily injury, a downward departure may be warranted.'';
and by redesignating Note 2 as Note 1.
The Commentary to Sec. 2N1.2 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. If death or bodily injury, extreme psychological injury, or
substantial property damage or monetary loss resulted, an upward
departure may be warranted. See Chapter Five, Part K (Departures).''.
The Commentary to Sec. 2N1.3 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. If death or bodily injury, extreme psychological injury, or
substantial property damage or monetary loss resulted, an upward
departure may be warranted. See Chapter Five, Part K (Departures).''.
The Commentary to Sec. 2N2.1 captioned ``Application Notes'' is
amended--
by striking Note 1 as follows:
``1. This guideline assumes a regulatory offense that involved
knowing or reckless conduct. Where only negligence was involved, a
downward departure may be warranted. See Chapter Five, Part K
(Departures).'';
by redesignating Note 2 as Note 1;
by striking Note 3 as follows:
``3. Upward Departure Provisions.--The following are circumstances
in which an upward departure may be warranted:
(A) The offense created a substantial risk of bodily injury or
death; or bodily injury, death, extreme psychological injury, property
damage, or monetary loss resulted from the offense. See Chapter Five,
Part K (Departures).
(B) The defendant was convicted under 7 U.S.C. 7734.'';
and by redesignating Note 4 as Note 2.
The Commentary to Sec. 2P1.1 captioned ``Application Notes'' is
amended--
by striking Note 4 as follows:
``4. If death or bodily injury resulted, an upward departure may be
warranted. See Chapter Five, Part K (Departures).'';
and by redesignating Notes 5 and 6 as Notes 4 and 5, respectively.
The Commentary to Sec. 2P1.3 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. If death or bodily injury resulted, an upward departure may be
warranted. See Chapter Five, Part K (Departures).''.
The Commentary to Sec. 2Q1.1 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. If death or serious bodily injury resulted, an upward departure
may be warranted. See Chapter Five, Part K (Departures).''.
The Commentary to Sec. 2Q1.2 captioned ``Application Notes'' is
amended--
by striking Note 4 as follows:
``4. Except when the adjustment in subsection (b)(6) for simple
recordkeeping offenses applies, this section assumes knowing conduct.
In cases involving negligent conduct, a downward departure may be
warranted.'';
by redesignating Notes 5 through 8 as Notes 4 through 7,
respectively;
in Note 4 (as so redesignated) by striking ``Depending upon the
harm resulting from the emission, release or discharge, the quantity
and nature of the substance or pollutant, the duration of the offense
and the risk associated with the violation, a departure of up to two
levels in either direction from the offense levels prescribed in these
specific offense characteristics may be appropriate.'';
in Note 5 (as so redesignated) by striking ``Depending upon the
nature of the risk created and the number of people placed at risk, a
departure of up to three levels upward or downward may be warranted. If
death or serious bodily injury results, a departure would be called
for. See Chapter Five, Part K (Departures).'';
in Note 6 (as so redesignated) by striking ``Depending upon the
nature of the contamination involved, a departure of up to two levels
either upward or downward could be warranted.'';
in Note 7 (as so redesignated) by striking ``Depending upon the
nature and quantity of the substance involved and the risk associated
with the offense, a departure of up to two levels either upward or
downward may be warranted.'';
and by striking Note 9 as follows:
``9. Other Upward Departure Provisions.--
(A) Civil Adjudications and Failure to Comply with Administrative
Order.--In a case in which the defendant has

[[Page 19837]]

previously engaged in similar misconduct established by a civil
adjudication or has failed to comply with an administrative order, an
upward departure may be warranted. See Sec. 4A1.3 (Departures Based on
Inadequacy of Criminal History Category).
(B) Extreme Psychological Injury.--If the offense caused extreme
psychological injury, an upward departure may be warranted. See Sec.
5K2.3 (Extreme Psychological Injury).
(C) Terrorism.--If the offense was calculated to influence or
affect the conduct of government by intimidation or coercion, or to
retaliate against government conduct, an upward departure would be
warranted. See Application Note 4 of the Commentary to Sec. 3A1.4
(Terrorism).''.
The Commentary to Sec. 2Q1.3 captioned ``Application Notes'' is
amended--
by striking Note 3 as follows:
``3. The specific offense characteristics in this section assume
knowing conduct. In cases involving negligent conduct, a downward
departure may be warranted.'';
by redesignating Notes 4 through 7 as Notes 3 through 6,
respectively;
in Note 3 (as so redesignated) by striking ``Depending upon the
harm resulting from the emission, release or discharge, the quantity
and nature of the substance or pollutant, the duration of the offense
and the risk associated with the violation, a departure of up to two
levels in either direction from that prescribed in these specific
offense characteristics may be appropriate.'';
in Note 4 (as so redesignated) by striking ``Depending upon the
nature of the risk created and the number of people placed at risk, a
departure of up to three levels upward or downward may be warranted. If
death or serious bodily injury results, a departure would be called
for. See Chapter Five, Part K (Departures).'';
in Note 5 (as so redesignated) by striking ``Depending upon the
nature of the contamination involved, a departure of up to two levels
in either direction could be warranted.'';
in Note 6 (as so redesignated) by striking ``Depending upon the
nature and quantity of the substance involved and the risk associated
with the offense, a departure of up to two levels in either direction
may be warranted.'';
and by striking Note 8 as follows:
``8. Where a defendant has previously engaged in similar misconduct
established by a civil adjudication or has failed to comply with an
administrative order, an upward departure may be warranted. See Sec.
4A1.3 (Departures Based on Inadequacy of Criminal History Category
(Policy Statement)).''.
The Commentary to Sec. 2Q1.4 captioned ``Application Notes'' is
amended by striking Note 3 as follows:
``3. Departure Provisions.--
(A) Downward Departure Provision.--The base offense level in
subsection (a)(1) reflects that offenses covered by that subsection
typically pose a risk of death or serious bodily injury to one or more
victims, or cause, or are intended to cause, bodily injury. In the
unusual case in which such an offense did not cause a risk of death or
serious bodily injury, and neither caused nor was intended to cause
bodily injury, a downward departure may be warranted.
(B) Upward Departure Provisions.--If the offense caused extreme
psychological injury, or caused substantial property damage or monetary
loss, an upward departure may be warranted.
If the offense was calculated to influence or affect the conduct of
government by intimidation or coercion, or to retaliate against
government conduct, an upward departure would be warranted. See
Application Note 4 of Sec. 3A1.4 (Terrorism).''.
The Commentary to Sec. 2Q2.1 captioned ``Application Notes'' is
amended--
by striking Note 5 as follows:
``5. If the offense involved the destruction of a substantial
quantity of fish, wildlife, or plants, and the seriousness of the
offense is not adequately measured by the market value, an upward
departure may be warranted.'';
and by redesignating Note 6 as Note 5.
The Commentary to Sec. 2R1.1 captioned ``Application Notes'' is
amended in Note 7 by striking ``a sentence at the maximum of the
applicable guideline range, or an upward departure, may be warranted.
See Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History
Category (Policy Statement))'' and inserting ``a sentence at the
maximum of the applicable guideline range may be warranted''.
The Commentary to Sec. 2T1.8 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. If the defendant was attempting to evade, rather than merely
delay, payment of taxes, an upward departure may be warranted.''.
The Commentary to Sec. 2T2.1 captioned ``Application Notes'' is
amended--
in the caption by striking ``Notes'' and inserting ``Note'';
and by striking Note 2 as follows:
``2. Offense conduct directed at more than tax evasion (e.g., theft
or fraud) may warrant an upward departure.''.
Chapter Two, Part T, Subpart 3 is amended in the Introductory
Commentary by striking ``, or for departing upward if there is not
another more specific applicable guideline''.
The Commentary to Sec. 2T3.1 captioned ``Application Notes'' is
amended--
by striking Note 2 as follows:
``2. Particular attention should be given to those items for which
entry is prohibited, limited, or restricted. Especially when such items
are harmful or protective quotas are in effect, the duties evaded on
such items may not adequately reflect the harm to society or protected
industries resulting from their importation. In such instances, an
upward departure may be warranted. A sentence based upon an alternative
measure of the `duty' evaded, such as the increase in market value due
to importation, or 25 percent of the items' fair market value in the
United States if the increase in market value due to importation is not
readily ascertainable, might be considered.'';
and by redesignating Note 3 as Note 2.
The Commentary to Sec. 2X5.1 captioned ``Application Notes'' is
amended--
in Note 1 by inserting after ``include:'' the following: ``Sec.
3F1.1 (Early Disposition Programs (Policy Statement));''; by striking
``Chapter Five, Part H (Specific Offender Characteristics); Chapter
Five, Part J (Relief from Disability); Chapter Five, Part K
(Departures); Chapter Six, Part A (Sentencing Procedures); Chapter Six,
Part B (Plea Agreements)'' and inserting ``Chapter Five, Part J (Relief
from Disability); Chapter Five, Part K (Assistance to Authorities);
Chapter Six, Part A (Sentencing Procedures); and Chapter Six, Part B
(Plea Agreements)'';
and in Note 2 by striking the following:
``Convictions under 18 U.S.C. 1841(a)(1).--
(A) In General.--If the defendant is convicted under 18 U.S.C.
1841(a)(1), the Chapter Two offense guideline that applies is the
guideline that covers the conduct the defendant is convicted of having
engaged in, i.e., the conduct of which the defendant is convicted that
violates a specific provision listed in 18 U.S.C. 1841(b) and that
results in the death of, or bodily injury to, a child in utero at the
time of the offense of conviction. For example, if the defendant
committed aggravated sexual abuse against the unborn child's mother and
it caused the death of the child in utero, the applicable Chapter Two
guideline would be Sec. 2A3.1 (Criminal

[[Page 19838]]

Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).
(B) Upward Departure Provision.--For offenses under 18 U.S.C.
1841(a)(1), an upward departure may be warranted if the offense level
under the applicable guideline does not adequately account for the
death of, or serious bodily injury to, the child in utero.'';
and inserting the following:
``Convictions under 18 U.S.C. 1841(a)(1).--If the defendant is
convicted under 18 U.S.C. 1841(a)(1), the Chapter Two offense guideline
that applies is the guideline that covers the conduct the defendant is
convicted of having engaged in, i.e., the conduct of which the
defendant is convicted that violates a specific provision listed in 18
U.S.C. 1841(b) and that results in the death of, or bodily injury to, a
child in utero at the time of the offense of conviction. For example,
if the defendant committed aggravated sexual abuse against the unborn
child's mother and it caused the death of the child in utero, the
applicable Chapter Two guideline would be Sec. 2A3.1 (Criminal Sexual
Abuse; Attempt to Commit Criminal Sexual Abuse).''.
The Commentary to Sec. 2X7.2 captioned ``Application Note'' is
amended in Note 1 by striking the following:
``Upward Departure Provisions.--An upward departure may be
warranted in any of the following cases:
(A) The defendant engaged in a pattern of activity involving use of
a submersible vessel or semi-submersible vessel described in 18 U.S.C.
2285 to facilitate other felonies.
(B) The offense involved use of the vessel as part of an ongoing
criminal organization or enterprise.'';
and inserting the following:
``As identified by Congress in section 103 of Public Law 110-407,
the following factors may also warrant consideration in imposing a
sentence under this guideline:
(A) The defendant engaged in a pattern of activity involving use of
a submersible vessel or semi-submersible vessel described in 18 U.S.C.
2285 to facilitate other felonies.
(B) The offense involved use of the vessel as part of an ongoing
criminal organization or enterprise.''.
The Commentary to Sec. 3A1.1 captioned ``Application Notes'' is
amended--
by striking Note 4 as follows:
``4. If an enhancement from subsection (b) applies and the
defendant's criminal history includes a prior sentence for an offense
that involved the selection of a vulnerable victim, an upward departure
may be warranted.'';
and by redesignating Note 5 as Note 4.
The Commentary to Sec. 3A1.2 captioned ``Application Notes'' is
amended by striking Note 5 as follows:
``5. Upward Departure Provision.--If the official victim is an
exceptionally high-level official, such as the President or the Vice
President of the United States, an upward departure may be warranted
due to the potential disruption of the governmental function.''.
The Commentary to Sec. 3A1.3 captioned ``Application Notes'' is
amended by striking Note 3 as follows:
``3. If the restraint was sufficiently egregious, an upward
departure may be warranted. See Sec. 5K2.4 (Abduction or Unlawful
Restraint).''.
The Commentary to Sec. 3A1.4 captioned ``Application Notes'' is
amended by striking Note 4 as follows:
``4. Upward Departure Provision.--By the terms of the directive to
the Commission in section 730 of the Antiterrorism and Effective Death
Penalty Act of 1996, the adjustment provided by this guideline applies
only to federal crimes of terrorism. However, there may be cases in
which (A) the offense was calculated to influence or affect the conduct
of government by intimidation or coercion, or to retaliate against
government conduct but the offense involved, or was intended to
promote, an offense other than one of the offenses specifically
enumerated in 18 U.S.C. 2332b(g)(5)(B); or (B) the offense involved, or
was intended to promote, one of the offenses specifically enumerated in
18 U.S.C. 2332b(g)(5)(B), but the terrorist motive was to intimidate or
coerce a civilian population, rather than to influence or affect the
conduct of government by intimidation or coercion, or to retaliate
against government conduct. In such cases an upward departure would be
warranted, except that the sentence resulting from such a departure may
not exceed the top of the guideline range that would have resulted if
the adjustment under this guideline had been applied.''.
The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is
amended in Note 2 by striking ``An upward departure may be warranted,
however, in the case of a defendant who did not organize, lead, manage,
or supervise another participant, but who nevertheless exercised
management responsibility over the property, assets, or activities of a
criminal organization.''.
The Commentary to Sec. 3B1.4 captioned ``Application Notes'' is
amended by striking Note 3 as follows:
``3. If the defendant used or attempted to use more than one person
less than eighteen years of age, an upward departure may be
warranted.''.
The Commentary to Sec. 3C1.2 captioned ``Application Notes'' is
amended--
in Note 2 by striking ``However, where a higher degree of
culpability was involved, an upward departure above the 2-level
increase provided in this section may be warranted.'';
and by striking Note 6 as follows:
``6. If death or bodily injury results or the conduct posed a
substantial risk of death or bodily injury to more than one person, an
upward departure may be warranted. See Chapter Five, Part K
(Departures).''.
The Commentary to Sec. 3D1.1 captioned ``Background'' is amended
by striking ``Chapter Three, Part E (Acceptance of Responsibility)''
and inserting ``Chapter Three, Parts E (Acceptance of Responsibility)
and F (Early Disposition Programs),''; and by striking ``Chapter Five
(Determining the Sentence)'' both places such phrase appears and
inserting ``Chapter Five (Determining the Sentencing Range and Options
Under the Guidelines)''.
The Commentary to Sec. 3D1.2 captioned ``Background'' is amended
by striking ``it was rejected because it probably would require
departure in many cases in order to capture adequately the criminal
behavior'' and inserting ``it was rejected because, in many cases, it
would not adequately capture the scope and impact of the criminal
behavior''.
The Commentary to Sec. 3D1.3 captioned ``Application Notes'' is
amended by striking Note 4 as follows:
``4. Sometimes the rule specified in this section may not result in
incremental punishment for additional criminal acts because of the
grouping rules. For example, if the defendant commits forcible criminal
sexual abuse (rape), aggravated assault, and robbery, all against the
same victim on a single occasion, all of the counts are grouped
together under Sec. 3D1.2. The aggravated assault will increase the
guideline range for the rape. The robbery, however, will not. This is
because the offense guideline for rape (Sec. 2A3.1) includes the most
common aggravating factors, including injury, that data showed to be
significant in actual practice. The additional factor of property loss
ordinarily can be taken into account adequately within the guideline
range for rape, which is fairly wide. However, an exceptionally large
property loss in the course of the rape would provide grounds for an
upward departure. See Sec. 5K2.5 (Property Damage or Loss).''.

[[Page 19839]]

The Commentary to Sec. 3D1.4 captioned ``Background'' is amended
by striking the following:
``When Groups are of roughly comparable seriousness, each Group
will represent one Unit. When the most serious Group carries an offense
level substantially higher than that applicable to the other Groups,
however, counting the lesser Groups fully for purposes of the table
could add excessive punishment, possibly even more than those offenses
would carry if prosecuted separately. To avoid this anomalous result
and produce declining marginal punishment, Groups 9 or more levels less
serious than the most serious Group should not be counted for purposes
of the table, and that Groups 5 to 8 levels less serious should be
treated as equal to one-half of a Group. Thus, if the most serious
Group is at offense level 15 and if two other Groups are at level 10,
there would be a total of two Units for purposes of the table (one plus
one-half plus one-half) and the combined offense level would be 17.
Inasmuch as the maximum increase provided in the guideline is 5 levels,
departure would be warranted in the unusual case where the additional
offenses resulted in a total of significantly more than 5 Units.
In unusual circumstances, the approach adopted in this section
could produce adjustments for the additional counts that are inadequate
or excessive. If there are several groups and the most serious offense
is considerably more serious than all of the others, there will be no
increase in the offense level resulting from the additional counts.
Ordinarily, the court will have latitude to impose added punishment by
sentencing toward the upper end of the range authorized for the most
serious offense. Situations in which there will be inadequate scope for
ensuring appropriate additional punishment for the additional crimes
are likely to be unusual and can be handled by departure from the
guidelines. Conversely, it is possible that if there are several minor
offenses that are not grouped together, application of the rules in
this part could result in an excessive increase in the sentence range.
Again, such situations should be infrequent and can be handled through
departure. An alternative method for ensuring more precise adjustments
would have been to determine the appropriate offense level adjustment
through a more complicated mathematical formula; that approach was not
adopted because of its complexity.'';
and inserting the following:
``When Groups are of roughly comparable seriousness, each Group
will represent one Unit. When the most serious Group carries an offense
level substantially higher than that applicable to the other Groups,
however, counting the lesser Groups fully for purposes of the table
could add excessive punishment, possibly even more than those offenses
would carry if prosecuted separately. To avoid this anomalous result
and produce declining marginal punishment, Groups 9 or more levels less
serious than the most serious Group should not be counted for purposes
of the table, and that Groups 5 to 8 levels less serious should be
treated as equal to one-half of a Group. Thus, if the most serious
Group is at offense level 15 and if two other Groups are at level 10,
there would be a total of two Units for purposes of the table (one plus
one-half plus one-half) and the combined offense level would be 17.''.
The Commentary to Sec. 3D1.5 is amended by striking ``Chapter Five
(Determining the Sentence)'' and inserting ``Chapter Five (Determining
the Sentencing Range and Options Under the Guidelines)''; and by
striking ``Chapter Three, Part E (Acceptance of Responsibility)'' and
inserting ``Chapter Three, Parts E (Acceptance of Responsibility) and F
(Early Disposition Programs),''.
Chapter Three is amended by inserting at the end the following new
Part F:

``Part F--Early Disposition Programs

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

Upon motion of the Government, the court may decrease the
defendant's offense level pursuant to an early disposition program
authorized by the Attorney General of the United States and the United
States Attorney for the district in which the court resides. The level
of the decrease shall be consistent with the authorized program within
the filing district and the government motion filed, but shall be not
more than 4 levels.
Commentary
Background: This policy statement implements the directive to the
Commission in section 401(m)(2)(B) of the Prosecutorial Remedies and
Other Tools to end the Exploitation of Children Today Act of 2003 (the
`PROTECT Act', Public Law 108-21).''.
Chapter Four, Part A is amended in the Introductory Commentary by
striking ``and Sec. 4A1.3''.
The Commentary to Sec. 4A1.1 captioned ``Background'' is amended
by striking ``In recognition of the imperfection of this measure
however, Sec. 4A1.3 authorizes the court to depart from the otherwise
applicable criminal history category in certain circumstances.''.
Section 4A1.2(h) is amended by striking ``, but may be considered
under Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History
Category (Policy Statement))''.
Section 4A1.2(i) is amended by striking ``, but may be considered
under Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History
Category (Policy Statement))''.
Section 4A1.2(j) is amended by striking ``, but may be considered
under Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History
Category (Policy Statement))''.
The Commentary to Sec. 4A1.2 captioned ``Applications Notes'' is
amended--
in Note 3 by striking the following:
``Application of `Single Sentence' Rule (Subsection (a)(2)).--
(A) Predicate Offenses.--In some cases, multiple prior sentences
are treated as a single sentence for purposes of calculating the
criminal history score under Sec. 4A1.1(a), (b), and (c). However, for
purposes of determining predicate offenses, a prior sentence included
in the single sentence should be treated as if it received criminal
history points, if it independently would have received criminal
history points. Therefore, an individual prior sentence may serve as a
predicate under the career offender guideline (see Sec. 4B1.2(c)) or
other guidelines with predicate offenses, if it independently would
have received criminal history points. However, because predicate
offenses may be used only if they are counted `separately' from each
other (see Sec. 4B1.2(c)), no more than one prior sentence in a given
single sentence may be used as a predicate offense.
For example, a defendant's criminal history includes one robbery
conviction and one theft conviction. The sentences for these offenses
were imposed on the same day, eight years ago, and are treated as a
single sentence under Sec. 4A1.2(a)(2). If the defendant received a
one-year sentence of imprisonment for the robbery and a two-year
sentence of imprisonment for the theft, to be served concurrently, a
total of 3 points is added under Sec. 4A1.1(a). Because this
particular robbery met the definition of a felony crime of violence and
independently would have received 2 criminal history points under Sec.
4A1.1(b), it may serve as a predicate under the career offender
guideline.
Note, however, that if the sentences in the example above were
imposed thirteen years ago, the robbery independently would have
received no criminal history points under Sec. 4A1.1(b), because it
was not imposed

[[Page 19840]]

within ten years of the defendant's commencement of the instant
offense. See Sec. 4A1.2(e)(2). Accordingly, it may not serve as a
predicate under the career offender guideline.
(B) Upward Departure Provision.--Treating multiple prior sentences
as a single sentence may result in a criminal history score that
underrepresents the seriousness of the defendant's criminal history and
the danger that the defendant presents to the public. In such a case,
an upward departure may be warranted. For example, if a defendant was
convicted of a number of serious non-violent offenses committed on
different occasions, and the resulting sentences were treated as a
single sentence because either the sentences resulted from offenses
contained in the same charging instrument or the defendant was
sentenced for these offenses on the same day, the assignment of a
single set of points may not adequately reflect the seriousness of the
defendant's criminal history or the frequency with which the defendant
has committed crimes.'';
and inserting the following:
``Application of `Single Sentence' Rule (Subsection (a)(2)).--In
some cases, multiple prior sentences are treated as a single sentence
for purposes of calculating the criminal history score under Sec.
4A1.1(a), (b), and (c). However, for purposes of determining predicate
offenses, a prior sentence included in the single sentence should be
treated as if it received criminal history points, if it independently
would have received criminal history points. Therefore, an individual
prior sentence may serve as a predicate under the career offender
guideline (see Sec. 4B1.2(c)) or other guidelines with predicate
offenses, if it independently would have received criminal history
points. However, because predicate offenses may be used only if they
are counted `separately' from each other (see Sec. 4B1.2(c)), no more
than one prior sentence in a given single sentence may be used as a
predicate offense.
For example, a defendant's criminal history includes one robbery
conviction and one theft conviction. The sentences for these offenses
were imposed on the same day, eight years ago, and are treated as a
single sentence under Sec. 4A1.2(a)(2). If the defendant received a
one-year sentence of imprisonment for the robbery and a two-year
sentence of imprisonment for the theft, to be served concurrently, a
total of 3 points is added under Sec. 4A1.1(a). Because this
particular robbery met the definition of a felony crime of violence and
independently would have received 2 criminal history points under Sec.
4A1.1(b), it may serve as a predicate under the career offender
guideline.
Note, however, that if the sentences in the example above were
imposed thirteen years ago, the robbery independently would have
received no criminal history points under Sec. 4A1.1(b), because it
was not imposed within ten years of the defendant's commencement of the
instant offense. See Sec. 4A1.2(e)(2). Accordingly, it may not serve
as a predicate under the career offender guideline.'';
in Note 6 by striking the following paragraph:
``Nonetheless, the criminal conduct underlying any conviction that
is not counted in the criminal history score may be considered pursuant
to Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History
Category (Policy Statement)).'';
and in Note 8 by striking ``If the court finds that a sentence
imposed outside this time period is evidence of similar, or serious
dissimilar, criminal conduct, the court may consider this information
in determining whether an upward departure is warranted under Sec.
4A1.3 (Departures Based on Inadequacy of Criminal History Category
(Policy Statement)).''.
Chapter Four, Part A is amended by striking Sec. 4A1.3 and its
accompanying commentary in its entirety as follows:

``Sec. 4A1.3. Departures Based on Inadequacy of Criminal History
Category (Policy Statement)

(a) Upward Departures.--
(1) Standard for Upward Departure.--If reliable information
indicates that the defendant's criminal history category substantially
under-represents the seriousness of the defendant's criminal history or
the likelihood that the defendant will commit other crimes, an upward
departure may be warranted.
(2) Types of Information Forming the Basis for Upward Departure.--
The information described in subsection (a)(1) may include information
concerning the following:
(A) Prior sentence(s) not used in computing the criminal history
category (e.g., sentences for foreign and tribal convictions).
(B) Prior sentence(s) of substantially more than one year imposed
as a result of independent crimes committed on different occasions.
(C) Prior similar misconduct established by a civil adjudication or
by a failure to comply with an administrative order.
(D) Whether the defendant was pending trial or sentencing on
another charge at the time of the instant offense.
(E) Prior similar adult criminal conduct not resulting in a
criminal conviction.
(3) Prohibition.--A prior arrest record itself shall not be
considered for purposes of an upward departure under this policy
statement.
(4) Determination of Extent of Upward Departure.--
(A) In General.--Except as provided in subdivision (B), the court
shall determine the extent of a departure under this subsection by
using, as a reference, the criminal history category applicable to
defendants whose criminal history or likelihood to recidivate most
closely resembles that of the defendant's.
(B) Upward Departures from Category VI.--In a case in which the
court determines that the extent and nature of the defendant's criminal
history, taken together, are sufficient to warrant an upward departure
from Criminal History Category VI, the court should structure the
departure by moving incrementally down the sentencing table to the next
higher offense level in Criminal History Category VI until it finds a
guideline range appropriate to the case.
(b) Downward Departures.--
(1) Standard for Downward Departure.--If reliable information
indicates that the defendant's criminal history category substantially
over-represents the seriousness of the defendant's criminal history or
the likelihood that the defendant will commit other crimes, a downward
departure may be warranted.
(2) Prohibitions.--
(A) Criminal History Category I.--Unless otherwise specified, a
departure below the lower limit of the applicable guideline range for
Criminal History Category I is prohibited.
(B) Armed Career Criminal and Repeat and Dangerous Sex Offender.--A
downward departure under this subsection is prohibited for (i) an armed
career criminal within the meaning of Sec. 4B1.4 (Armed Career
Criminal); and (ii) a repeat and dangerous sex offender against minors
within the meaning of Sec. 4B1.5 (Repeat and Dangerous Sex Offender
Against Minors).
(3) Limitations.--
(A) Limitation on Extent of Downward Departure for Career
Offender.--The extent of a downward departure under this subsection for
a career offender within the meaning of Sec. 4B1.1 (Career Offender)
may not exceed one criminal history category.
(B) Limitation on Applicability of Sec. 5C1.2 in Event of Downward
Departure.--A defendant who receives a downward departure under this

[[Page 19841]]

subsection does not meet the criminal history requirement of subsection
(a)(1) of Sec. 5C1.2 (Limitation on Applicability of Statutory Maximum
Sentences in Certain Cases) if the defendant did not otherwise meet
such requirement before receipt of the downward departure.
(c) Written Specification of Basis for Departure.--In departing
from the otherwise applicable criminal history category under this
policy statement, the court shall specify in writing the following:
(1) In the case of an upward departure, the specific reasons why
the applicable criminal history category substantially under-represents
the seriousness of the defendant's criminal history or the likelihood
that the defendant will commit other crimes.
(2) In the case of a downward departure, the specific reasons why
the applicable criminal history category substantially over-represents
the seriousness of the defendant's criminal history or the likelihood
that the defendant will commit other crimes.
Commentary
Application Notes:
1. Definitions.--For purposes of this policy statement, the terms
`depart', `departure', `downward departure', and `upward departure'
have the meaning given those terms in Application Note 1 of the
Commentary to Sec. 1B1.1 (Application Instructions).
2. Upward Departures.--
(A) Examples.--An upward departure from the defendant's criminal
history category may be warranted based on any of the following
circumstances:
(i) A previous foreign sentence for a serious offense.
(ii) Receipt of a prior consolidated sentence of ten years for a
series of serious assaults.
(iii) A similar instance of large scale fraudulent misconduct
established by an adjudication in a Securities and Exchange Commission
enforcement proceeding.
(iv) Commission of the instant offense while on bail or pretrial
release for another serious offense.
(B) Upward Departures from Criminal History Category VI.--In the
case of an egregious, serious criminal record in which even the
guideline range for Criminal History Category VI is not adequate to
reflect the seriousness of the defendant's criminal history, a
departure above the guideline range for a defendant with Criminal
History Category VI may be warranted. In determining whether an upward
departure from Criminal History Category VI is warranted, the court
should consider that the nature of the prior offenses rather than
simply their number is often more indicative of the seriousness of the
defendant's criminal record. For example, a defendant with five prior
sentences for very large-scale fraud offenses may have 15 criminal
history points, within the range of points typical for Criminal History
Category VI, yet have a substantially more serious criminal history
overall because of the nature of the prior offenses.
(C) Upward Departures Based on Tribal Court Convictions.--In
determining whether, or to what extent, an upward departure based on a
tribal court conviction is appropriate, the court shall consider the
factors set forth in Sec. 4A1.3(a) above and, in addition, may
consider relevant factors such as the following:
(i) The defendant was represented by a lawyer, had the right to a
trial by jury, and received other due process protections consistent
with those provided to criminal defendants under the United States
Constitution.
(ii) The defendant received the due process protections required
for criminal defendants under the Indian Civil Rights Act of 1968,
Public Law 90-284, as amended.
(iii) The tribe was exercising expanded jurisdiction under the
Tribal Law and Order Act of 2010, Public Law 111-211.
(iv) The tribe was exercising expanded jurisdiction under the
Violence Against Women Reauthorization Act of 2013, Public Law 113-4.
(v) The tribal court conviction is not based on the same conduct
that formed the basis for a conviction from another jurisdiction that
receives criminal history points pursuant to this chapter.
(vi) The tribal court conviction is for an offense that otherwise
would be counted under Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History).
3. Downward Departures.--
(A) Examples.--A downward departure from the defendant's criminal
history category may be warranted based on any of the following
circumstances:
(i) The defendant had two minor misdemeanor convictions close to
ten years prior to the instant offense and no other evidence of prior
criminal behavior in the intervening period.
(ii) The defendant received criminal history points from a sentence
for possession of marihuana for personal use, without an intent to sell
or distribute it to another person.
(B) Downward Departures from Criminal History Category I.--A
departure below the lower limit of the applicable guideline range for
Criminal History Category I is prohibited under subsection (b)(2)(A),
unless otherwise specified.
Background: This policy statement recognizes that the criminal
history score is unlikely to take into account all the variations in
the seriousness of criminal history that may occur. For example, a
defendant with an extensive record of serious, assaultive conduct who
had received what might now be considered extremely lenient treatment
in the past might have the same criminal history category as a
defendant who had a record of less serious conduct. Yet, the first
defendant's criminal history clearly may be more serious. This may be
particularly true in the case of younger defendants (e.g., defendants
in their early twenties or younger) who are more likely to have
received repeated lenient treatment, yet who may actually pose a
greater risk of serious recidivism than older defendants. This policy
statement authorizes the consideration of a departure from the
guidelines in the limited circumstances where reliable information
indicates that the criminal history category does not adequately
reflect the seriousness of the defendant's criminal history or
likelihood of recidivism, and provides guidance for the consideration
of such departures.''.
The Commentary to Sec. 4B1.1 captioned ``Application Notes'' is
amended by striking Note 4 as follows:
``4. Departure Provision for State Misdemeanors.--In a case in
which one or both of the defendant's `two prior felony convictions' is
based on an offense that was classified as a misdemeanor at the time of
sentencing for the instant federal offense, application of the career
offender guideline may result in a guideline range that substantially
overrepresents the seriousness of the defendant's criminal history or
substantially overstates the seriousness of the instant offense. In
such a case, a downward departure may be warranted without regard to
the limitation in Sec. 4A1.3(b)(3)(A).''.
The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is
amended by striking Note 4 as follows:
``4. Upward Departure for Burglary Involving Violence.--There may
be cases in which a burglary involves violence, but does not qualify as
a `crime of violence' as defined in Sec. 4B1.2(a) and, as a result,
the defendant does not receive a higher offense level or higher
Criminal History Category that would have applied if the burglary
qualified as a `crime of violence.' In

[[Page 19842]]

such a case, an upward departure may be appropriate.''.
The Commentary to Sec. 4B1.4 captioned ``Application Notes'' is
amended in Note 2 by striking the following paragraph:
``In a few cases, the rule provided in the preceding paragraph may
result in a guideline range that, when combined with the mandatory
consecutive sentence under 18 U.S.C. 844(h), Sec. 924(c), or Sec.
929(a), produces a total maximum penalty that is less than the maximum
of the guideline range that would have resulted had there not been a
count of conviction under 18 U.S.C. 844(h), Sec. 924(c), or Sec.
929(a) (i.e., the guideline range that would have resulted if
subsections (b)(3)(A) and (c)(2) had been applied). In such a case, an
upward departure may be warranted so that the conviction under 18
U.S.C. 844(h), Sec. 924(c), or Sec. 929(a) does not result in a
decrease in the total punishment. An upward departure under this
paragraph shall not exceed the maximum of the guideline range that
would have resulted had there not been a count of conviction under 18
U.S.C. 844(h), Sec. 924(c), or Sec. 929(a).''.
The Commentary to Sec. 4B1.4 captioned ``Background'' is amended
by striking ``In some cases, the criminal history category may not
adequately reflect the defendant's criminal history; see Sec. 4A1.3
(Departures Based on Inadequacy of Criminal History Category (Policy
Statement)).''.
The Commentary to Sec. 4C1.1 captioned ``Application Notes'' is
amended--
in the heading by striking ``Notes'' and inserting ``Note'';
and by striking Note 2 as follows:
``2. Upward Departure.--An upward departure may be warranted if an
adjustment under this guideline substantially underrepresents the
seriousness of the defendant's criminal history. For example, an upward
departure may be warranted if the defendant has a prior conviction or
other comparable judicial disposition for an offense that involved
violence or credible threats of violence.''.
Chapter Five is amended--
in the heading by striking ``Determining the Sentence'' and
inserting ``Determining the Sentencing Range and Options Under the
Guidelines'';
and in the Introductory Commentary by striking the following:
''For certain categories of offenses and offenders, the guidelines
permit the court to impose either imprisonment or some other sanction
or combination of sanctions. In determining the type of sentence to
impose, the sentencing judge should consider the nature and seriousness
of the conduct, the statutory purposes of sentencing, and the pertinent
offender characteristics. A sentence is within the guidelines if it
complies with each applicable section of this chapter. The court should
impose a sentence sufficient, but not greater than necessary, to comply
with the statutory purposes of sentencing. 18 U.S.C. 3553(a).'';
and inserting the following:
''Chapter Five sets forth the steps used to determine the
applicable sentencing range based upon the guideline calculations made
in Chapters Two through Four. Additionally, the provisions in this
chapter set forth the sentencing requirements and options under the
guidelines related to probation, imprisonment, supervision conditions,
fines, and restitution for the particular guideline range. For example,
for certain categories of offenses and offenders, the guidelines permit
the court to impose either imprisonment or some other sanction or
combination of sanctions. After applying the provisions of this chapter
to determine the sentencing options recommended under the guidelines
pursuant to subsection (a) of Sec. 1B1.1 (Application Instructions),
the court shall consider the other applicable factors in 18 U.S.C.
3553(a) to determine the length and type of sentence that is sufficient
but not greater than necessary. A sentence is within the guidelines if
it complies with each applicable section of this chapter.''.
The Commentary to Sec. 5B1.1 captioned ``Applications Notes'' is
amended by inserting at the end the following new Note 3:
``3. Factors to Be Considered.--
(A) Statutory Factors.--The court, in determining whether to impose
a term of probation, and, if a term of probation is to be imposed, in
determining the length of the term and the conditions of probation, is
required by statute to consider the factors set forth in 18 U.S.C.
3553(a) to the extent that they are applicable. See 18 U.S.C. 3562(a).
(B) Substance Abuse.--In a case in which a defendant sentenced to
probation is an abuser of controlled substances or alcohol, it is
recommended that the court consider imposing a condition requiring the
defendant to participate in a program approved by the United States
Probation Office for substance abuse may be appropriate. See Sec.
5B1.3(d)(4).
(C) 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 probation is required by statute if the defendant is not
sentenced to a term of imprisonment. See 18 U.S.C. 3561(b). 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. 3563(a); Sec.
5B1.3(a)(4).
(D) Mental and Emotional Conditions.--In a case in which a
defendant sentenced to probation is in need of psychological or
psychiatric treatment, it is recommended that the court consider
imposing a condition requiring that the defendant participate in a
mental health program approved by the United States Probation Office.
See Sec. 5B1.3(d)(5).
(E) Education and Vocational Skills.--Education and vocational
skills may be relevant in determining the conditions of probation for
rehabilitative purposes, for public protection by restricting
activities that allow for the utilization of a certain skill, or in
determining the appropriate type of community service.
(F) Employment Record.--A defendant's employment record may be
relevant in determining the conditions of probation (e.g., the
appropriate hours of home detention).''.
The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is
amended--
by striking Note 6 as follows:
``6. Departures Based on Specific Treatment Purpose.--There may be
cases in which a departure from the sentencing options authorized for
Zone C of the Sentencing Table (under which at least half the minimum
term must be satisfied by imprisonment) to the sentencing options
authorized for Zone B of the Sentencing Table (under which all or most
of the minimum term may be satisfied by intermittent confinement,
community confinement, or home detention instead of imprisonment) is
appropriate to accomplish a specific treatment purpose. Such a
departure should be considered only in cases where the court finds that
(A) the defendant is an abuser of narcotics, other controlled
substances, or alcohol, or suffers from a significant mental illness,
and (B) the defendant's criminality is related to the treatment problem
to be addressed.
In determining whether such a departure is appropriate, the court
should consider, among other things, (1) the likelihood that completion
of the treatment program will successfully address the treatment
problem, thereby reducing the risk to the public from further crimes of
the defendant, and (2) whether imposition of less imprisonment than
required by Zone C will increase the risk to the public from further
crimes of the defendant.

[[Page 19843]]

Examples: The following examples both assume the applicable
guideline range is 12-18 months and the court departs in accordance
with this application note. Under Zone C rules, the defendant must be
sentenced to at least six months imprisonment. (1) The defendant is a
nonviolent drug offender in Criminal History Category I and probation
is not prohibited by statute. The court departs downward to impose a
sentence of probation, with twelve months of intermittent confinement,
community confinement, or home detention and participation in a
substance abuse treatment program as conditions of probation. (2) The
defendant is convicted of a Class A or B felony, so probation is
prohibited by statute (see Sec. 5B1.1(b)). The court departs downward
to impose a sentence of one month imprisonment, with eleven months in
community confinement or home detention and participation in a
substance abuse treatment program as conditions of supervised
release.'';
by redesignating Notes 7 through 10 as Notes 6 through 9,
respectively;
and in Note 9 (as so redesignated) by striking the following:
``Zero-Point Offenders.--
(A) Zero-Point Offenders in Zones A and B of the Sentencing
Table.--If the defendant received an adjustment under Sec. 4C1.1
(Adjustment for Certain Zero-Point Offenders) and the defendant's
applicable guideline range is in Zone A or B of the Sentencing Table, a
sentence other than a sentence of imprisonment, in accordance with
subsection (b) or (c)(3), is generally appropriate. See 28 U.S.C.
994(j).
(B) Departure for Cases Where the Applicable Guideline Range
Overstates the Gravity of the Offense.--A departure, including a
departure to a sentence other than a sentence of imprisonment, may be
appropriate if the defendant received an adjustment under Sec. 4C1.1
(Adjustment for Certain Zero-Point Offenders) and the defendant's
applicable guideline range overstates the gravity of the offense
because the offense of conviction is not a crime of violence or an
otherwise serious offense. See 28 U.S.C. 994(j).'';
and inserting the following:
``Zero-Point Offenders in Zones A and B of the Sentencing Table.--
If the defendant received an adjustment under Sec. 4C1.1 (Adjustment
for Certain Zero-Point Offenders) and the defendant's applicable
guideline range is in Zone A or B of the Sentencing Table, a sentence
other than a sentence of imprisonment, in accordance with subsection
(b) or (c)(3), is generally appropriate. See 28 U.S.C. 994(j).''.
The Commentary to Sec. 5D1.1 captioned ``Application Notes,'' as
amended by Amendment 4 of this document, is further amended--
in Note 3, as redesignated by Amendment 4 of this document, by
striking ``See Sec. 5H1.4 (Physical Condition, Including Drug or
Alcohol Dependence or Abuse; Gambling Addiction)'' and inserting ``See
Sec. 5D1.3(b)(3)(D)'';
by further redesignating Notes 5, 6, and 7 (as redesignated by
Amendment 4 of this document) as Notes 8, 9, and 10, respectively;
and by inserting after Note 4, as redesignated by Amendment 4 of
this document, the following new Notes 5, 6, and 7:
``5. Mental and Emotional Conditions.--In a case in which a
defendant sentenced to imprisonment is in need of psychological or
psychiatric treatment, it is recommended that the court consider
imposing a condition requiring that the defendant participate in a
mental health program approved by the United States Probation Office.
See Sec. 5D1.3(b)(3)(E).
6. Education and Vocational Skills.--Education and vocational
skills may be relevant in determining the conditions of supervised
release for rehabilitative purposes, for public protection by
restricting activities that allow for the utilization of a certain
skill, or in determining the appropriate type of community service.
7. Employment Record.--A defendant's employment record may be
relevant in determining the conditions of supervised release (e.g., the
appropriate hours of home detention).''.
Section 5D1.3(b)(3)(D), as redesignated and amended by Amendment 4
of this document, is further amended by inserting after ``possess
alcohol.'' the following: ``If participation in a substance abuse
program is required, the length of the term of supervised release
should take into account the length of time necessary for the probation
office to judge the success of the program.''.
The Commentary to Sec. 5E1.2 captioned ``Applications Notes'' is
amended--
by striking Note 4 as follows:
``4. The Commission envisions that for most defendants, the maximum
of the guideline fine range from subsection (c) will be at least twice
the amount of gain or loss resulting from the offense. Where, however,
two times either the amount of gain to the defendant or the amount of
loss caused by the offense exceeds the maximum of the fine guideline,
an upward departure from the fine guideline may be warranted.
Moreover, where a sentence within the applicable fine guideline
range would not be sufficient to ensure both the disgorgement of any
gain from the offense that otherwise would not be disgorged (e.g., by
restitution or forfeiture) and an adequate punitive fine, an upward
departure from the fine guideline range may be warranted.'';
and by redesignating Notes 5, 6, and 7 as Notes 4, 5, and 6,
respectively.
The Commentary to Sec. 5G1.1 is amended by striking ``; a sentence
of less than 48 months would be a guideline departure''; and by
striking ``; a sentence of more than 60 months would be a guideline
departure''.
The Commentary to Sec. 5G1.3 captioned ``Application Notes,'' as
amended by Amendment 4 of this document, is further amended--
in Note 2(C) by striking ``(iii) the undischarged term of
imprisonment for which the adjustment is being given'' and inserting
``(iii) the undischarged term of imprisonment for which the adjustment
is being given and the relevant case information (including docket
number)'';
in Note 4(E) by striking the following:
``Downward Departure.--Unlike subsection (b), subsection (d) does
not authorize an adjustment of the sentence for the instant offense for
a period of imprisonment already served on the undischarged term of
imprisonment. However, in an extraordinary case involving an
undischarged term of imprisonment under subsection (d), it may be
appropriate for the court to downwardly depart. This may occur, for
example, in a case in which the defendant has served a very substantial
period of imprisonment on an undischarged term of imprisonment that
resulted from conduct only partially within the relevant conduct for
the instant offense. In such a case, a downward departure may be
warranted to ensure that the combined punishment is not increased
unduly by the fortuity and timing of separate prosecutions and
sentencings. Nevertheless, it is intended that a departure pursuant to
this application note result in a sentence that ensures a reasonable
incremental punishment for the instant offense of conviction.
To avoid confusion with the Bureau of Prisons' exclusive authority
provided under 18 U.S.C. 3585(b) to grant credit for time served under
certain circumstances, the Commission recommends that any downward
departure under this application note be clearly stated on the Judgment
in a Criminal Case Order as a downward departure pursuant to Sec.
5G1.3(d), rather than as a credit for time served.'';

[[Page 19844]]

and inserting the following:
``Imposition of Sentence.--Unlike subsection (b), subsection (d)
does not address an adjustment of the sentence for the instant offense
for a period of imprisonment already served on the undischarged term of
imprisonment. If the court does account for an undischarged term of
imprisonment under subsection (d) in imposing the sentence, the
Commission recommends that the court clearly state that the sentence
was imposed pursuant to 18 U.S.C. 3553(a), rather than as a credit for
time served, to avoid confusion with the Federal Bureau of Prisons'
exclusive authority provided under 18 U.S.C. 3585(b) to grant credit
for time served under certain circumstances.
The court should note on the Judgment in a Criminal Case Order (i)
that the sentence was imposed pursuant to 18 U.S.C. 3553(a); (ii) the
amount of time by which the sentence is being adjusted; (iii) the
undischarged term of imprisonment for which the adjustment is being
given and the relevant case information (including docket number); and
(iv) that the sentence imposed is to account for a period of
imprisonment that will not be credited by the Federal Bureau of
Prisons.'';
and in Note 5 by striking the following:
``Downward Departure Provision.--In the case of a discharged term
of imprisonment, a downward departure is not prohibited if the
defendant (A) has completed serving a term of imprisonment; and (B)
subsection (b) would have provided an adjustment had that completed
term of imprisonment been undischarged at the time of sentencing for
the instant offense. See Sec. 5K2.23 (Discharged Terms of
Imprisonment).'';
and inserting the following:
``Discharged Term of Imprisonment.--This guideline does not address
an adjustment of the sentence for the instant offense for a period of
imprisonment already served on a discharged term of imprisonment.
Nonetheless, nothing in the Guidelines Manual abrogates a court's
authority under 18 U.S.C. 3553(a) to consider a previously completed
term of imprisonment in determining an appropriate sentence where
subsection (b) above would have provided an adjustment had that
completed term of imprisonment been undischarged at the time of
sentencing for the instant offense.''.
Chapter Five is amended by striking in its entirety Part H, as
amended by Amendment 4 of this document, as follows:

``Part H--Specific Offender Characteristics

Introductory Commentary
This part addresses the relevance of certain specific offender
characteristics in sentencing. The Sentencing Reform Act (the `Act')
contains several provisions regarding specific offender
characteristics:
First, the Act directs the Commission to ensure that the guidelines
and policy statements `are entirely neutral' as to five
characteristics--race, sex, national origin, creed, and socioeconomic
status. See 28 U.S.C. 994(d).
Second, the Act directs the Commission to consider whether eleven
specific offender characteristics, `among others', have any relevance
to the nature, extent, place of service, or other aspects of an
appropriate sentence, and to take them into account in the guidelines
and policy statements only to the extent that they do have relevance.
See 28 U.S.C. 994(d).
Third, the Act directs the Commission to ensure that the guidelines
and policy statements, in recommending a term of imprisonment or length
of a term of imprisonment, reflect the `general inappropriateness' of
considering five of those characteristics--education; vocational
skills; employment record; family ties and responsibilities; and
community ties. See 28 U.S.C. 994(e).
Fourth, the Act also directs the sentencing court, in determining
the particular sentence to be imposed, to consider, among other
factors, `the history and characteristics of the defendant'. See 18
U.S.C. 3553(a)(1).
Specific offender characteristics are taken into account in the
guidelines in several ways. One important specific offender
characteristic is the defendant's criminal history, see 28 U.S.C.
994(d)(10), which is taken into account in the guidelines in Chapter
Four (Criminal History and Criminal Livelihood). See Sec. 5H1.8
(Criminal History). Another specific offender characteristic in the
guidelines is the degree of dependence upon criminal history for a
livelihood, see 28 U.S.C. 994(d)(11), which is taken into account in
Chapter Four, Part B (Career Offenders and Criminal Livelihood). See
Sec. 5H1.9 (Dependence upon Criminal Activity for a Livelihood). Other
specific offender characteristics are accounted for elsewhere in this
manual. See, e.g., Sec. Sec. 2C1.1(a)(1) and 2C1.2(a)(1) (providing
alternative base offense levels if the defendant was a public
official); 3B1.3 (Abuse of Position of Trust or Use of Special Skill);
and 3E1.1 (Acceptance of Responsibility).
The Supreme Court has emphasized that the advisory guideline system
should `continue to move sentencing in Congress' preferred direction,
helping to avoid excessive sentencing disparities while maintaining
flexibility sufficient to individualize sentences where necessary.' See
United States v. Booker, 543 U.S. 220, 264-65 (2005). Although the
court must consider `the history and characteristics of the defendant'
among other factors, see 18 U.S.C. 3553(a), in order to avoid
unwarranted sentencing disparities the court should not give them
excessive weight. Generally, the most appropriate use of specific
offender characteristics is to consider them not as a reason for a
sentence outside the applicable guideline range but for other reasons,
such as in determining the sentence within the applicable guideline
range, the type of sentence (e.g., probation or imprisonment) within
the sentencing options available for the applicable Zone on the
Sentencing Table, and various other aspects of an appropriate sentence.
To avoid unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct, see 18
U.S.C. 3553(a)(6), 28 U.S.C. 991(b)(1)(B), the guideline range, which
reflects the defendant's criminal conduct and the defendant's criminal
history, should continue to be `the starting point and the initial
benchmark.' Gall v. United States, 552 U.S. 38, 49 (2007).
Accordingly, the purpose of this part is to provide sentencing
courts with a framework for addressing specific offender
characteristics in a reasonably consistent manner. Using such a
framework in a uniform manner will help `secure nationwide
consistency,' see Gall v. United States, 552 U.S. 38, 49 (2007), `avoid
unwarranted sentencing disparities,' see 28 U.S.C. 991(b)(1)(B), 18
U.S.C. 3553(a)(6), `provide certainty and fairness,' see 28 U.S.C.
991(b)(1)(B), and `promote respect for the law,' see 18 U.S.C.
3553(a)(2)(A).
This part allocates specific offender characteristics into three
general categories.
In the first category are specific offender characteristics the
consideration of which Congress has prohibited (e.g., Sec. 5H1.10
(Race, Sex, National Origin, Creed, Religion, and Socio-Economic
Status)) or that the Commission has determined should be prohibited.
In the second category are specific offender characteristics that
Congress directed the Commission to take into account in the guidelines
only to the

[[Page 19845]]

extent that they have relevance to sentencing. See 28 U.S.C. 994(d).
For some of these, the policy statements indicate that these
characteristics may be relevant in determining whether a sentence
outside the applicable guideline range is warranted (e.g., age; mental
and emotional condition; physical condition). These characteristics may
warrant a sentence outside the applicable guideline range if the
characteristic, individually or in combination with other such
characteristics, is present to an unusual degree and distinguishes the
case from the typical cases covered by the guidelines. These specific
offender characteristics also may be considered for other reasons, such
as in determining the sentence within the applicable guideline range,
the type of sentence (e.g., probation or imprisonment) within the
sentencing options available for the applicable Zone on the Sentencing
Table, and various other aspects of an appropriate sentence.
In the third category are specific offender characteristics that
Congress directed the Commission to ensure are reflected in the
guidelines and policy statements as generally inappropriate in
recommending a term of imprisonment or length of a term of
imprisonment. See 28 U.S.C. 994(e). The policy statements indicate that
these characteristics are not ordinarily relevant to the determination
of whether a sentence should be outside the applicable guideline range.
Unless expressly stated, this does not mean that the Commission views
such circumstances as necessarily inappropriate to the determination of
the sentence within the applicable guideline range, the type of
sentence (e.g., probation or imprisonment) within the sentencing
options available for the applicable Zone on the Sentencing Table, or
various other aspects of an appropriate sentence (e.g., the appropriate
conditions of probation or supervised release). Furthermore, although
these circumstances are not ordinarily relevant to the determination of
whether a sentence should be outside the applicable guideline range,
they may be relevant to this determination in exceptional cases. They
also may be relevant if a combination of such circumstances makes the
case an exceptional one, but only if each such circumstance is
identified as an affirmative ground for departure and is present in the
case to a substantial degree. See Sec. 5K2.0 (Grounds for Departure).
As with the other provisions in this manual, these policy
statements `are evolutionary in nature'. See Chapter One, Part A,
Subpart 2 (Continuing Evolution and Role of the Guidelines); 28 U.S.C.
994(o). The Commission expects, and the Sentencing Reform Act
contemplates, that continuing research, experience, and analysis will
result in modifications and revisions.
The nature, extent, and significance of specific offender
characteristics can involve a range of considerations. The Commission
will continue to provide information to the courts on the relevance of
specific offender characteristics in sentencing, as the Sentencing
Reform Act contemplates. See, e.g., 28 U.S.C. 995(a)(12)(A) (the
Commission serves as a `clearinghouse and information center' on
federal sentencing). Among other things, this may include information
on the use of specific offender characteristics, individually and in
combination, in determining the sentence to be imposed (including,
where available, information on rates of use, criteria for use, and
reasons for use); the relationship, if any, between specific offender
characteristics and (A) the `forbidden factors' specified in 28 U.S.C.
994(d) and (B) the `discouraged factors' specified in 28 U.S.C. 994(e);
and the relationship, if any, between specific offender characteristics
and the statutory purposes of sentencing.

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

Age may be relevant in determining whether a departure is
warranted.
Age may be a reason to depart downward in a case in which the
defendant is elderly and infirm and where a form of punishment such as
home confinement might be equally efficient as and less costly than
incarceration.
A downward departure also may be warranted due to the defendant's
youthfulness at the time of the offense or prior offenses. Certain risk
factors may affect a youthful individual's development into the mid-
20's and contribute to involvement in criminal justice systems,
including environment, adverse childhood experiences, substance use,
lack of educational opportunities, and familial relationships. In
addition, youthful individuals generally are more impulsive, risk-
seeking, and susceptible to outside influence as their brains continue
to develop into young adulthood. Youthful individuals also are more
amenable to rehabilitation.
The age-crime curve, one of the most consistent findings in
criminology, demonstrates that criminal behavior tends to decrease with
age. Age-appropriate interventions and other protective factors may
promote desistance from crime. Accordingly, in an appropriate case, the
court may consider whether a form of punishment other than imprisonment
might be sufficient to meet the purposes of sentencing.
Physical condition, which may be related to age, is addressed at
Sec. 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence
or Abuse; Gambling Addiction).

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

Education and vocational skills are not ordinarily relevant in
determining whether a departure is warranted, but the extent to which a
defendant may have misused special training or education to facilitate
criminal activity is an express guideline factor.

See Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

Education and vocational skills may be relevant in determining the
conditions of probation or supervised release for rehabilitative
purposes, for public protection by restricting activities that allow
for the utilization of a certain skill, or in determining the
appropriate type of community service.

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

Mental and emotional conditions may be relevant in determining
whether a departure is warranted, if such conditions, individually or
in combination with other offender characteristics, are present to an
unusual degree and distinguish the case from the typical cases covered
by the guidelines. See also Chapter Five, Part K, Subpart 2 (Other
Grounds for Departure).
In certain cases a downward departure may be appropriate to
accomplish a specific treatment purpose. See Sec. 5C1.1, Application
Note 7.
Mental and emotional conditions may be relevant in determining the
conditions of probation or supervised release; e.g., participation in a
mental health program (see Sec. Sec. 5B1.3(d)(5) and 5D1.3(b)(3)(E)).
Sec. 5H1.4. Physical Condition, Including Drug or Alcohol Dependence
or Abuse; Gambling Addiction (Policy Statement)

Physical condition or appearance, including physique, may be
relevant in determining whether a departure is warranted, if the
condition or appearance, individually or in combination with other
offender characteristics, is present to an unusual degree and
distinguishes the case from the typical cases covered by the
guidelines. An extraordinary physical

[[Page 19846]]

impairment may be a reason to depart downward; e.g., in the case of a
seriously infirm defendant, home detention may be as efficient as, and
less costly than, imprisonment.
Drug or alcohol dependence or abuse ordinarily is not a reason for
a downward departure. Substance abuse is highly correlated to an
increased propensity to commit crime. Due to this increased risk, it is
highly recommended that a defendant who is incarcerated also be
sentenced to supervised release with a requirement that the defendant
participate in an appropriate substance abuse program (see Sec.
5D1.3(b)(3)(D)). If participation in a substance abuse program is
required, the length of supervised release should take into account the
length of time necessary for the probation office to judge the success
of the program.
In certain cases a downward departure may be appropriate to
accomplish a specific treatment purpose. See Sec. 5C1.1, Application
Note 7.
In a case in which a defendant who is a substance abuser is
sentenced to probation, it is strongly recommended that the conditions
of probation contain a requirement that the defendant participate in an
appropriate substance abuse program (see Sec. 5B1.3(d)(4)).
Addiction to gambling is not a reason for a downward departure.

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

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

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

In sentencing a defendant convicted of an offense other than an
offense described in the following paragraph, family ties and
responsibilities are not ordinarily relevant in determining whether a
departure may be warranted.
In sentencing a defendant convicted of an offense involving a minor
victim under section 1201, an offense under section 1591, or an offense
under chapter 71, 109A, 110, or 117, of title 18, United States Code,
family ties and responsibilities and community ties are not relevant in
determining whether a sentence should be below the applicable guideline
range.
Family responsibilities that are complied with may be relevant to
the determination of the amount of restitution or fine.
Commentary
Application Note:
1. Circumstances to Consider.--
(A) In General.--In determining whether a departure is warranted
under this policy statement, the court shall consider the following
non-exhaustive list of circumstances:
(i) The seriousness of the offense.
(ii) The involvement in the offense, if any, of members of the
defendant's family.
(iii) The danger, if any, to members of the defendant's family as a
result of the offense.
(B) Departures Based on Loss of Caretaking or Financial Support.--A
departure under this policy statement based on the loss of caretaking
or financial support of the defendant's family requires, in addition to
the court's consideration of the non-exhaustive list of circumstances
in subdivision (A), the presence of the following circumstances:
(i) The defendant's service of a sentence within the applicable
guideline range will cause a substantial, direct, and specific loss of
essential caretaking, or essential financial support, to the
defendant's family.
(ii) The loss of caretaking or financial support substantially
exceeds the harm ordinarily incident to incarceration for a similarly
situated defendant. For example, the fact that the defendant's family
might incur some degree of financial hardship or suffer to some extent
from the absence of a parent through incarceration is not in itself
sufficient as a basis for departure because such hardship or suffering
is of a sort ordinarily incident to incarceration.
(iii) The loss of caretaking or financial support is one for which
no effective remedial or ameliorative programs reasonably are
available, making the defendant's caretaking or financial support
irreplaceable to the defendant's family.
(iv) The departure effectively will address the loss of caretaking
or financial support.
Background: Section 401(b)(4) of Public Law 108-21 directly amended
this policy statement to add the second paragraph, effective April 30,
2003.

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

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

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

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

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

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

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

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

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

Military service may be relevant in determining whether a departure
is warranted, if the military service, individually or in combination
with other offender characteristics, is present to an unusual degree
and distinguishes the case from the typical cases covered by the
guidelines.
Civic, charitable, or public service; employment-related
contributions; and similar prior good works are not ordinarily relevant
in determining whether a departure is warranted.

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

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

``1. Substantial Assistance to Authorities''

Section 5K1.1 is amended by striking ``the court may depart from
the guidelines'' and inserting ``a sentence that is below the otherwise
applicable guideline range may be appropriate''.

[[Page 19847]]

Chapter Five, Part K is amended by striking Subparts 2 and 3 in
their entirety as follows:

``2. Other Grounds for Departure

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

(a) Upward Departures in General and Downward Departures in
Criminal Cases Other Than Child Crimes and Sexual Offenses.--
(1) In General.--The sentencing court may depart from the
applicable guideline range if--
(A) in the case of offenses other than child crimes and sexual
offenses, the court finds, pursuant to 18 U.S.C. 3553(b)(1), that there
exists an aggravating or mitigating circumstance; or
(B) in the case of child crimes and sexual offenses, the court
finds, pursuant to 18 U.S.C. 3553(b)(2)(A)(i), that there exists an
aggravating circumstance,
of a kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating the guidelines that, in
order to advance the objectives set forth in 18 U.S.C. 3553(a)(2),
should result in a sentence different from that described.
(2) Departures Based on Circumstances of a Kind Not Adequately
Taken Into Consideration.--
(A) Identified Circumstances.--This subpart (Chapter Five, Part K,
Subpart 2 (Other Grounds for Departure)) identifies some of the
circumstances that the Commission may have not adequately taken into
consideration in determining the applicable guideline range (e.g., as a
specific offense characteristic or other adjustment). If any such
circumstance is present in the case and has not adequately been taken
into consideration in determining the applicable guideline range, a
departure consistent with 18 U.S.C. 3553(b) and the provisions of this
subpart may be warranted.
(B) Unidentified Circumstances.--A departure may be warranted in
the exceptional case in which there is present a circumstance that the
Commission has not identified in the guidelines but that nevertheless
is relevant to determining the appropriate sentence.
(3) Departures Based on Circumstances Present to a Degree Not
Adequately Taken into Consideration.--A departure may be warranted in
an exceptional case, even though the circumstance that forms the basis
for the departure is taken into consideration in determining the
guideline range, if the court determines that such circumstance is
present in the offense to a degree substantially in excess of, or
substantially below, that which ordinarily is involved in that kind of
offense.
(4) Departures Based on Not Ordinarily Relevant Offender
Characteristics and Other Circumstances.--An offender characteristic or
other circumstance identified in Chapter Five, Part H (Offender
Characteristics) or elsewhere in the guidelines as not ordinarily
relevant in determining whether a departure is warranted may be
relevant to this determination only if such offender characteristic or
other circumstance is present to an exceptional degree.
(b) Downward Departures in Child Crimes and Sexual Offenses.--Under
18 U.S.C. 3553(b)(2)(A)(ii), the sentencing court may impose a sentence
below the range established by the applicable guidelines only if the
court finds that there exists a mitigating circumstance of a kind, or
to a degree, that--
(1) has been affirmatively and specifically identified as a
permissible ground of downward departure in the sentencing guidelines
or policy statements issued under section 994(a) of title 28, United
States Code, taking account of any amendments to such sentencing
guidelines or policy statements by act of Congress;
(2) has not adequately been taken into consideration by the
Sentencing Commission in formulating the guidelines; and
(3) should result in a sentence different from that described.
The grounds enumerated in this Part K of Chapter Five are the sole
grounds that have been affirmatively and specifically identified as a
permissible ground of downward departure in these sentencing guidelines
and policy statements. Thus, notwithstanding any other reference to
authority to depart downward elsewhere in this Sentencing Manual, a
ground of downward departure has not been affirmatively and
specifically identified as a permissible ground of downward departure
within the meaning of section 3553(b)(2) unless it is expressly
enumerated in this Part K as a ground upon which a downward departure
may be granted.
(c) Limitation on Departures Based on Multiple Circumstances.--The
court may depart from the applicable guideline range based on a
combination of two or more offender characteristics or other
circumstances, none of which independently is sufficient to provide a
basis for departure, only if--
(1) such offender characteristics or other circumstances, taken
together, make the case an exceptional one; and
(2) each such offender characteristic or other circumstance is--
(A) present to a substantial degree; and
(B) identified in the guidelines as a permissible ground for
departure, even if such offender characteristic or other circumstance
is not ordinarily relevant to a determination of whether a departure is
warranted.
(d) Prohibited Departures.--Notwithstanding subsections (a) and (b)
of this policy statement, or any other provision in the guidelines, the
court may not depart from the applicable guideline range based on any
of the following circumstances:
(1) Any circumstance specifically prohibited as a ground for
departure in Sec. Sec. 5H1.10 (Race, Sex, National Origin, Creed,
Religion, and Socio-Economic Status), 5H1.12 (Lack of Guidance as a
Youth and Similar Circumstances), the last sentence of 5H1.4 (Physical
Condition, Including Drug or Alcohol Dependence or Abuse; Gambling
Addiction), and the last sentence of 5K2.12 (Coercion and Duress).
(2) The defendant's acceptance of responsibility for the offense,
which may be taken into account only under Sec. 3E1.1 (Acceptance of
Responsibility).
(3) The defendant's aggravating or mitigating role in the offense,
which may be taken into account only under Sec. 3B1.1 (Aggravating
Role) or Sec. 3B1.2 (Mitigating Role), respectively.
(4) The defendant's decision, in and of itself, to plead guilty to
the offense or to enter a plea agreement with respect to the offense
(i.e., a departure may not be based merely on the fact that the
defendant decided to plead guilty or to enter into a plea agreement,
but a departure may be based on justifiable, non-prohibited reasons as
part of a sentence that is recommended, or agreed to, in the plea
agreement and accepted by the court. See Sec. 6B1.2 (Standards for
Acceptance of Plea Agreement).
(5) The defendant's fulfillment of restitution obligations only to
the extent required by law including the guidelines (i.e., a departure
may not be based on unexceptional efforts to remedy the harm caused by
the offense).
(6) Any other circumstance specifically prohibited as a ground for
departure in the guidelines.
(e) Requirement of Specific Written Reasons for Departure.--If the
court departs from the applicable guideline range, it shall state,
pursuant to 18 U.S.C. 3553(c), its specific reasons for departure in
open court at the time of

[[Page 19848]]

sentencing and, with limited exception in the case of statements
received in camera, shall state those reasons with specificity in the
statement of reasons form.
Commentary
Application Notes:
1. Definitions.--For purposes of this policy statement:
`Circumstance' includes, as appropriate, an offender characteristic
or any other offense factor.
`Depart', `departure', `downward departure', and `upward departure'
have the meaning given those terms in Application Note 1 of the
Commentary to Sec. 1B1.1 (Application Instructions).
2. Scope of this Policy Statement.--
(A) Departures Covered by this Policy Statement.--This policy
statement covers departures from the applicable guideline range based
on offense characteristics or offender characteristics of a kind, or to
a degree, not adequately taken into consideration in determining that
range. See 18 U.S.C. 3553(b).
Subsection (a) of this policy statement applies to upward
departures in all cases covered by the guidelines and to downward
departures in all such cases except for downward departures in child
crimes and sexual offenses.
Subsection (b) of this policy statement applies only to downward
departures in child crimes and sexual offenses.
(B) Departures Covered by Other Guidelines.--This policy statement
does not cover the following departures, which are addressed elsewhere
in the guidelines: (i) departures based on the defendant's criminal
history (see Chapter Four (Criminal History and Criminal Livelihood),
particularly Sec. 4A1.3 (Departures Based on Inadequacy of Criminal
History Category)); (ii) departures based on the defendant's
substantial assistance to the authorities (see Sec. 5K1.1 (Substantial
Assistance to Authorities)); and (iii) departures based on early
disposition programs (see Sec. 5K3.1 (Early Disposition Programs)).
3. Kinds and Expected Frequency of Departures under Subsection
(a).--As set forth in subsection (a), there generally are two kinds of
departures from the guidelines based on offense characteristics and/or
offender characteristics: (A) departures based on circumstances of a
kind not adequately taken into consideration in the guidelines; and (B)
departures based on circumstances that are present to a degree not
adequately taken into consideration in the guidelines.
(A) Departures Based on Circumstances of a Kind Not Adequately
Taken into Account in Guidelines.--Subsection (a)(2) authorizes the
court to depart if there exists an aggravating or a mitigating
circumstance in a case under 18 U.S.C. 3553(b)(1), or an aggravating
circumstance in a case under 18 U.S.C. 3553(b)(2)(A)(i), of a kind not
adequately taken into consideration in the guidelines.
(i) Identified Circumstances.--This subpart (Chapter Five, Part K,
Subpart 2) identifies several circumstances that the Commission may
have not adequately taken into consideration in setting the offense
level for certain cases. Offense guidelines in Chapter Two (Offense
Conduct) and adjustments in Chapter Three (Adjustments) sometimes
identify circumstances the Commission may have not adequately taken
into consideration in setting the offense level for offenses covered by
those guidelines. If the offense guideline in Chapter Two or an
adjustment in Chapter Three does not adequately take that circumstance
into consideration in setting the offense level for the offense, and
only to the extent not adequately taken into consideration, a departure
based on that circumstance may be warranted.
(ii) Unidentified Circumstances.--A case may involve circumstances,
in addition to those identified by the guidelines, that have not
adequately been taken into consideration by the Commission, and the
presence of any such circumstance may warrant departure from the
guidelines in that case. However, inasmuch as the Commission has
continued to monitor and refine the guidelines since their inception to
take into consideration relevant circumstances in sentencing, it is
expected that departures based on such unidentified circumstances will
occur rarely and only in exceptional cases.
(B) Departures Based on Circumstances Present to a Degree Not
Adequately Taken into Consideration in Guidelines.--
(i) In General.--Subsection (a)(3) authorizes the court to depart
if there exists an aggravating or a mitigating circumstance in a case
under 18 U.S.C. 3553(b)(1), or an aggravating circumstance in a case
under 18 U.S.C. 3553(b)(2)(A)(i), to a degree not adequately taken into
consideration in the guidelines. However, inasmuch as the Commission
has continued to monitor and refine the guidelines since their
inception to determine the most appropriate weight to be accorded the
mitigating and aggravating circumstances specified in the guidelines,
it is expected that departures based on the weight accorded to any such
circumstance will occur rarely and only in exceptional cases.
(ii) Examples.--As set forth in subsection (a)(3), if the
applicable offense guideline and adjustments take into consideration a
circumstance identified in this subpart, departure is warranted only if
the circumstance is present to a degree substantially in excess of that
which ordinarily is involved in the offense. Accordingly, a departure
pursuant to Sec. 5K2.7 for the disruption of a governmental function
would have to be substantial to warrant departure from the guidelines
when the applicable offense guideline is bribery or obstruction of
justice. When the guideline covering the mailing of injurious articles
is applicable, however, and the offense caused disruption of a
governmental function, departure from the applicable guideline range
more readily would be appropriate. Similarly, physical injury would not
warrant departure from the guidelines when the robbery offense
guideline is applicable because the robbery guideline includes a
specific adjustment based on the extent of any injury. However, because
the robbery guideline does not deal with injury to more than one
victim, departure may be warranted if several persons were injured.
(C) Departures Based on Circumstances Identified as Not Ordinarily
Relevant.--Because certain circumstances are specified in the
guidelines as not ordinarily relevant to sentencing (see, e.g., Chapter
Five, Part H (Specific Offender Characteristics)), a departure based on
any one of such circumstances should occur only in exceptional cases,
and only if the circumstance is present in the case to an exceptional
degree. If two or more of such circumstances each is present in the
case to a substantial degree, however, and taken together make the case
an exceptional one, the court may consider whether a departure would be
warranted pursuant to subsection (c). Departures based on a combination
of not ordinarily relevant circumstances that are present to a
substantial degree should occur extremely rarely and only in
exceptional cases.
In addition, as required by subsection (e), each circumstance
forming the basis for a departure described in this subparagraph shall
be stated with specificity in the statement of reasons form.
4. Downward Departures in Child Crimes and Sexual Offenses.--
(A) Definition.--For purposes of this policy statement, the term
`child crimes and sexual offenses' means offenses under any of the
following: 18 U.S.C. 1201 (involving a minor victim), 18

[[Page 19849]]

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

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

If death resulted, the court may increase the sentence above the
authorized guideline range.
Loss of life does not automatically suggest a sentence at or near
the statutory maximum. The sentencing judge must give consideration to
matters that would normally distinguish among levels of homicide, such
as the defendant's state of mind and the degree of planning or
preparation. Other appropriate factors are whether multiple deaths
resulted, and the means by which life was taken. The extent of the
increase should depend on the dangerousness of the defendant's conduct,
the extent to which death or serious injury was intended or knowingly
risked, and the extent to which the offense level for the offense of
conviction, as determined by the other Chapter Two guidelines, already
reflects the risk of personal injury. For example, a substantial
increase may be appropriate if the death was intended or knowingly
risked or if the underlying offense was one for which base offense
levels do not reflect an allowance for the risk of personal injury,
such as fraud.

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

If significant physical injury resulted, the court may increase the
sentence above the authorized guideline range. The extent of the
increase ordinarily should depend on the extent of the injury, the
degree to which it may prove

[[Page 19850]]

permanent, and the extent to which the injury was intended or knowingly
risked. When the victim suffers a major, permanent disability and when
such injury was intentionally inflicted, a substantial departure may be
appropriate. If the injury is less serious or if the defendant (though
criminally negligent) did not knowingly create the risk of harm, a less
substantial departure would be indicated. In general, the same
considerations apply as in Sec. 5K2.1.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sometimes, a defendant may commit a crime in order to avoid a
perceived greater harm. In such instances, a reduced sentence may be
appropriate, provided that the circumstances significantly diminish
society's interest in punishing the conduct, for example, in the case
of a mercy killing. Where the interest in punishment or deterrence is
not reduced, a reduction in sentence is not warranted. For example,
providing defense secrets to a hostile power should receive no lesser
punishment simply because the defendant believed that the government's
policies were misdirected.
In other instances, conduct may not cause or threaten the harm or
evil sought to be prevented by the law proscribing the offense at
issue. For example, where a war veteran possessed a machine gun or
grenade as a trophy, or a school teacher possessed controlled
substances for display in a drug education program, a reduced sentence
might be warranted.

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

If the defendant committed the offense because of serious coercion,
blackmail or duress, under circumstances not amounting to a complete
defense, the court may depart downward. The extent of the decrease
ordinarily should depend on the reasonableness of the defendant's

[[Page 19851]]

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

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

A downward departure may be warranted if (1) the defendant
committed the offense while suffering from a significantly reduced
mental capacity; and (2) the significantly reduced mental capacity
contributed substantially to the commission of the offense. Similarly,
if a departure is warranted under this policy statement, the extent of
the departure should reflect the extent to which the reduced mental
capacity contributed to the commission of the offense.
However, the court may not depart below the applicable guideline
range if (1) the significantly reduced mental capacity was caused by
the voluntary use of drugs or other intoxicants; (2) the facts and
circumstances of the defendant's offense indicate a need to protect the
public because the offense involved actual violence or a serious threat
of violence; (3) the defendant's criminal history indicates a need to
incarcerate the defendant to protect the public; or (4) the defendant
has been convicted of an offense under chapter 71, 109A, 110, or 117,
of title 18, United States Code.
Commentary
Application Note:
1. For purposes of this policy statement--
`Significantly reduced mental capacity' means the defendant,
although convicted, has a significantly impaired ability to (A)
understand the wrongfulness of the behavior comprising the offense or
to exercise the power of reason; or (B) control behavior that the
defendant knows is wrongful.
Background: Section 401(b)(5) of Public Law 108-21 directly amended
this policy statement to add subdivision (4), effective April 30, 2003.

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

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

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

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

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

If the defendant possessed a semiautomatic firearm capable of
accepting a large capacity magazine in connection with a crime of
violence or controlled substance offense, an upward departure may be
warranted. A `semiautomatic firearm capable of accepting a large
capacity magazine' means a semiautomatic firearm that has the ability
to fire many rounds without reloading because at the time of the
offense (1) the firearm had attached to it a magazine or similar device
that could accept more than 15 rounds of ammunition; or (2) a magazine
or similar device that could accept more than 15 rounds of ammunition
was in close proximity to the firearm. The extent of any increase
should depend upon the degree to which the nature of the weapon
increased the likelihood of death or injury in the circumstances of the
particular case.
Commentary
Application Note:
1. `Crime of violence' and `controlled substance offense' are
defined in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1).

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

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

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

(a) In General.--Except where a defendant is convicted of an
offense involving a minor victim under section 1201, an offense under
section 1591, or an offense under chapter 71, 109A, 110, or 117, of
title 18, United States Code, a downward departure may be warranted in
an exceptional case if (1) the defendant's criminal conduct meets the
requirements of subsection (b); and (2) the departure is not prohibited
under subsection (c).
(b) Requirements.--The court may depart downward under this policy
statement only if the defendant committed a single criminal occurrence
or single criminal transaction that (1) was committed without
significant planning; (2) was of limited duration; and (3) represents a
marked deviation by the defendant from an otherwise law-abiding life.
(c) Prohibitions Based on the Presence of Certain Circumstances.--
The court may not depart downward pursuant to this policy statement if
any of the following circumstances are present:
(1) The offense involved serious bodily injury or death.
(2) The defendant discharged a firearm or otherwise used a firearm
or a dangerous weapon.
(3) The instant offense of conviction is a serious drug trafficking
offense.
(4) The defendant has either of the following: (A) more than one
criminal history point, as determined under Chapter Four (Criminal
History and Criminal Livelihood) before application of subsection (b)
of Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History
Category); or (B) a prior federal or state felony conviction, or any
other significant prior criminal behavior, regardless of whether the
conviction or significant prior criminal behavior is countable under
Chapter Four.
Commentary
Application Notes:
1. Definitions.--For purposes of this policy statement:
`Dangerous weapon,' `firearm,' `otherwise used,' and `serious
bodily injury' have the meaning given those terms in the Commentary to
Sec. 1B1.1 (Application Instructions).

[[Page 19852]]

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

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

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

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

In sentencing a defendant convicted of an offense involving a minor
victim under section 1201, an offense under section 1591, or an offense
under chapter 71, 109A, 110, or 117, of title 18, United States Code:
(1) Age may be a reason to depart downward only if and to the
extent permitted by Sec. 5H1.1.
(2) An extraordinary physical impairment may be a reason to depart
downward only if and to the extent permitted by Sec. 5H1.4.
(3) Drug, alcohol, or gambling dependence or abuse is not a reason
to depart downward.
Commentary
Background: Section 401(b)(2) of Public Law 108-21 directly amended
Chapter Five, Part K, to add this policy statement, effective April 30,
2003.

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

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

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

If, during the commission of the offense, the defendant wore or
displayed an official, or counterfeit official, insignia or uniform
received in violation of 18 U.S.C. 716, an upward departure may be
warranted.
Commentary
Application Note:
1. Definition.--For purposes of this policy statement, `official
insignia or uniform' has the meaning given that term in 18 U.S.C.
716(c)(3).
3. Early Disposition Programs

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

Upon motion of the Government, the court may depart downward not
more than 4 levels pursuant to an early disposition program authorized
by the Attorney General of the United States and the United States
Attorney for the district in which the court resides.
Commentary
Background: This policy statement implements the directive to the
Commission in section 401(m)(2)(B) of the Prosecutorial Remedies and
Other Tools to end the Exploitation of Children Today Act of 2003 (the
`PROTECT Act', Public Law 108-21).''.
Chapter Six, Part A is amended by striking Sec. 6A1.4 and its
accompanying commentary in its entirety as follows:

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

Before the court may depart from the applicable sentencing
guideline range on a ground not identified for departure either in the
presentence report or in a party's prehearing submission, the court
must give the parties reasonable notice that it is contemplating such a
departure. The notice must specify any ground on which the court is
contemplating a departure. Rule 32(h), Fed. R. Crim. P.
Commentary
Background: The Federal Rules of Criminal Procedure were amended,
effective December 1, 2002, to incorporate into Rule 32(h) the holding
in Burns v. United States, 501 U.S. 129, 138-39 (1991). This policy
statement parallels Rule 32(h), Fed. R. Crim. P.''.
Chapter Six, Part B is amended in the Introductory Commentary by
striking ``The policy statements also ensure that the basis for any
judicial decision to depart from the guidelines will be explained on
the record.''.
The Commentary to Sec. 6B1.2 is amended--
in the paragraph that begins ``Similarly, the court'' by striking
``As set forth in subsection (d) of Sec. 5K2.0 (Grounds for
Departure), however, the court may not depart below the applicable
guideline range merely because of the defendant's decision to plead
guilty to the offense or to enter a plea agreement with respect to the
offense.'';
and in the paragraph that begins ``The second paragraph of
subsection (a)'' by striking ``Section 5K2.21 (Dismissed and Uncharged
Conduct) addresses the use, as a basis for upward departure, of conduct
underlying a charge dismissed as part of a plea agreement in the case,
or underlying a potential charge not pursued in the case as part of a
plea agreement.''.
The Commentary to Sec. 7B1.4 captioned ``Application Notes,'' as
amended by Amendment 4 of this document, is further amended--
by striking Notes 2, 3, and 4 as follows:
``2. Departure from the applicable range of imprisonment in the
Probation 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 probation.
Additionally, an upward departure may be warranted when a defendant,
subsequent to the federal sentence resulting in probation, has been
sentenced for an offense that is not the basis of the violation
proceeding.
3. In the case of a Grade C violation that is associated with a
high risk of new felonious conduct (e.g., a defendant, on probation for
conviction

[[Page 19853]]

of criminal sexual abuse, violates the condition that the defendant not
associate with children by loitering near a schoolyard), an upward
departure may be warranted.
4. Where the original sentence was the result of a downward
departure (e.g., as a reward for substantial assistance), or a charge
reduction that resulted in a sentence below the guideline range
applicable to the defendant's underlying conduct, an upward departure
may be warranted.'';
and by redesignating Notes 5 and 6 as Notes 2 and 3, respectively.
The Commentary to Sec. 7C1.5 captioned ``Application Notes,'' as
added by Amendment 4 of this document, is amended--
by striking Notes 2, 3, and 4 as follows:
``2. 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.
3. In the case of a Grade C violation that is associated with a
high risk of new felonious conduct (e.g., a defendant, under 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.
4. Where the original sentence was the result of a downward
departure (e.g., as a reward for substantial assistance), or a charge
reduction that resulted in a sentence below the guideline range
applicable to the defendant's underlying conduct, an upward departure
may be warranted.'';
and by redesignating Notes 5 and 6 as Notes 2 and 3, respectively.
Section 8A1.2(b) is amended--
in paragraph (4) by striking ``For grounds for departure from the
applicable guideline fine range, refer to Part C, Subpart 4 (Departures
from the Guideline Fine Range)'' and inserting ``Determine whether a
sentence below the otherwise applicable guideline range is appropriate
upon motion of the government pursuant to Sec. 8C4.1 (Substantial
Assistance to Authorities--Organizations (Policy Statement))'';
and by inserting at the end the following new paragraph (5):
``(5) Consider as a whole the additional factors identified in 18
U.S.C. 3553(a) to determine the sentence that is sufficient, but not
greater than necessary, to comply with the purposes set forth in 18
U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a).''.
The Commentary to Sec. 8A1.2 captioned ``Application Notes'' is
amended in Note 2 by striking ``and E (Acceptance of Responsibility)''
and inserting ``E (Acceptance of Responsibility), and F (Early
Disposition Programs)''.
The Commentary to Sec. 8C2.3 captioned ``Application Notes'' is
amended in Note 2 by striking ``and E (Acceptance of Responsibility)''
and inserting ``E (Acceptance of Responsibility), and F (Early
Disposition Programs)''.
The Commentary to Sec. 8C2.8 captioned ``Application Notes'' is
amended in Note 5 by striking ``In a case involving a pattern of
illegality, an upward departure may be warranted.''.
The Commentary to Sec. 8C2.8 captioned ``Background'' is amended
by striking ``In unusual cases, factors listed in this section may
provide a basis for departure.''.
Chapter Eight, Part C, Subpart 4 is amended--
in the heading by striking ``DEPARTURES FROM THE GUIDELINE FINE
RANGE'' and inserting ``SUBSTANTIAL ASSISTANCE TO AUTHORITIES'';
and by striking the Introductory Commentary as follows:
``Introductory Commentary
The statutory provisions governing departures are set forth in 18
U.S.C. 3553(b). Departure may be warranted if the court finds `that
there exists an aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described.' This subpart sets forth
certain factors that, in connection with certain offenses, may not have
been adequately taken into consideration by the guidelines. In deciding
whether departure is warranted, the court should consider the extent to
which that factor is adequately taken into consideration by the
guidelines and the relative importance or substantiality of that factor
in the particular case.
To the extent that any policy statement from Chapter Five, Part K
(Departures) is relevant to the organization, a departure from the
applicable guideline fine range may be warranted. Some factors listed
in Chapter Five, Part K that are particularly applicable to
organizations are listed in this subpart. Other factors listed in
Chapter Five, Part K may be applicable in particular cases. While this
subpart lists factors that the Commission believes may constitute
grounds for departure, the list is not exhaustive.''.
Section 8C4.1(a) is amended by striking ``the court may depart from
the guidelines'' and inserting ``a fine that is below the otherwise
applicable guideline fine range may be appropriate''.
The Commentary to Sec. 8C4.1 captioned ``Application Note'' is
amended in Note 1 by striking ``Departure under this section'' and
inserting ``Fine reduction under this section''.
Chapter Eight, Part C is further amended by striking Sec. Sec.
8C4.2 through 8C4.11 in their entirety as follows:

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

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

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

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

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

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

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

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

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

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

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

[[Page 19854]]

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

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

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

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

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

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

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

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

If the organization's culpability score is greater than 10, an
upward departure may be appropriate.
If no individual within substantial authority personnel
participated in, condoned, or was willfully ignorant of the offense;
the organization at the time of the offense had an effective program to
prevent and detect violations of law; and the base fine is determined
under Sec. 8C2.4(a)(1), Sec. 8C2.4(a)(3), or a special instruction
for fines in Chapter Two (Offense Conduct), a downward departure may be
warranted. In a case meeting these criteria, the court may find that
the organization had exceptionally low culpability and therefore a fine
based on loss, offense level, or a special Chapter Two instruction
results in a guideline fine range higher than necessary to achieve the
purposes of sentencing. Nevertheless, such fine should not be lower
than if determined under Sec. 8C2.4(a)(2).''.
Reason for Amendment: This amendment is a result of the
Commission's exploration of ways to simplify the guidelines and to
reduce tension between 18 U.S.C. 3553(a) and the Guidelines Manual.
Specifically, the amendment removes one of the steps in the current
three-step sentencing process, which requires courts to consider
departures provided for within the Guidelines Manual. As amended, the
Guidelines Manual now provides a two-step process whereby the
sentencing court must first correctly calculate the applicable
guideline range as the ``starting point and initial benchmark'' and
then must determine an appropriate sentence upon consideration of all
the factors set forth by Congress in 18 U.S.C. 3553(a). See Gall v.
United States, 552 U.S. 38, 49-51 (2007).
In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court
held that the portion of 18 U.S.C. 3553 making the guidelines mandatory
was unconstitutional. The Court has further explained that the
guideline range, which reflects the defendant's criminal conduct and
the defendant's criminal history, should continue to be ``the starting
point and the initial benchmark'' in sentencing proceedings. See Gall,
552 U.S. at 49; see also Peugh v. United States, 569 U.S. 530 (2013)
(noting that ``the post-Booker federal sentencing system adopted
procedural measures that make the guidelines the `lodestone' of
sentencing''). After determining the kinds of sentence and guideline
range provided for by the Guidelines, however, the court must also
fully consider the factors in 18 U.S.C. 3553(a), including, among other
factors, ``the nature and circumstances of the offense and the history
and characteristics of the defendant,'' to determine a sentence that is
sufficient but not greater than necessary. See Rita v. United States,
551 U.S. 338, 347-48 (2007).
In the wake of Booker and subsequent cases, the Guidelines Manual
provided a three-step process for determining the sentence to be
imposed, which is reflected in the three main subdivisions of Sec.
1B1.1 (Application Instructions) (subsections (a) through (c)). The
three-step process can be summarized as follows: (1) the court
calculates the applicable guideline range and determines the sentencing
requirements and options related to probation, imprisonment,
supervision conditions, fines, and restitution; (2) the court considers
policy statements and guideline commentary relating to departures and
specific personal characteristics that might warrant consideration in
imposing the sentence; and (3) the court considers the applicable
factors in 18 U.S.C. 3553(a) in deciding what sentence to impose
(whether within the applicable guideline range, or whether as a
departure or as a variance (or as both)).
In the years since Booker, the frequency of departures has steadily
declined with courts relying to a greater extent on variances in a
manner consistent with the statutory requirements in section 3553(a).
The shift away from departures deepened as a direct result of the
holding in Irizarry v. United States, 553 U.S. 708 (2008), in which the
Court held that the ``reasonable notice'' requirement in Rule 32(h) of
the Federal Rules of Criminal Procedure does not apply to variances.
To better align the guidelines to practices under current
sentencing law and to acknowledge the growing shift away from the use
of departures, the amendment revises the guidelines in multiple ways.
First, the amendment moves the ``Original Introduction to the
Guidelines Manual'' from Chapter One, Part A to an Appendix of the
Guidelines Manual as historical background. Second, the amendment
revises the application instructions provided in Sec. 1B1.1 to reflect
the simplification of the three-step process into two steps. At Step
One, courts are to calculate the guideline range and determine the
sentencing requirements and options under the Guidelines Manual. See
Sec. 1B1.1(a). At Step Two, courts are to consider the section 3553(a)
factors. See Sec. 1B1.1(b). Section 1B1.1(b) expressly

[[Page 19855]]

lists the section 3553(a) factors the court must consider. Other
conforming changes are made throughout Chapter One. For example, Sec.
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended
Guideline Range (Policy Statement)) is amended to reflect the removal
of departures. The Commission does not intend this conforming amendment
to substantively change the operation of the calculation of the amended
guideline range in Sec. 1B1.10.
In addition, the amendment seeks to better address the distinction
between the statutory limitations on the Commission's ability to
consider certain offense characteristics and individual circumstances
in recommending a term of imprisonment or length of imprisonment, and
the requirement that the court consider a broad range of individual and
offense characteristics in determining an appropriate sentence pursuant
to 18 U.S.C. 3553(a). More specifically, the amendment revises Sec.
1A3.1 (Authority), which sets forth the Commission's authority in
developing the guidelines. First, the provision is redesignated as
Sec. 1A1.1 and, for clarity, is retitled as ``Commission's
Authority.'' Second, in addition to referring to 28 U.S.C. 994(a) as
the basis of the Commission's authority to promulgate guidelines,
policy statements, and commentary, the provision explains how the
Commission has complied with the requirements placed on it by Congress,
noting what is not considered by the Commission in formulating the
guidelines. This ensures that the Commission has addressed the
provisions of sections 994(c), (d), and (e).
A new background commentary to this section explains that the
requirements and limitations imposed upon the Commission by 28 U.S.C.
994 do not apply to sentencing courts. Instead, the factors set forth
by Congress in 18 U.S.C. 3553(a) ``permit a sentencing court to
consider the `widest possible breadth of information' about a defendant
ensuring the court is in `possession of the fullest information
possible concerning the defendant's life and characteristics.' '' See
Pepper v. United States, 562 U.S. 476, 488 (2011); see also Concepcion
v. United States, 597 U.S. 481, 493 (2022). The new background
commentary concludes by noting that the application instructions set
forth in Sec. 1B1.1 are structured to reflect a two-step process
whereby the sentencing court must first correctly calculate the
applicable guideline range as the ``starting point and initial
benchmark'' and then must determine an appropriate sentence upon
consideration of all the factors set forth by Congress in 18 U.S.C.
3553(a).
Consistent with the revised approach, the amendment deletes most
departures previously provided throughout the Guidelines Manual.
Changes are made throughout the Guidelines Manual by deleting the
departure provisions contained in commentary to various guidelines.
However, some provisions, originally promulgated in response to
congressional directives, are retained in another form. First,
Application Note 1 of Sec. 2X7.2 (Submersible and Semi-Submersible
Vessels) is revised to remove the language pertaining to a departure
and instead indicates that the listed factors, which were identified by
Congress in section 103 of Public Law 110-407, may warrant
consideration in imposing a sentence. Similarly, Application Note 2 of
Sec. 1B1.9 (Class B or C Misdemeanors and Infractions), which
addresses Class B and C misdemeanors and infractions, is revised to add
a reference to the aggravating nature of committing an offense while
wearing or displaying insignia and uniform in violation of 18 U.S.C.
716 (a class B misdemeanor). This guidance was previously set forth in
a departure provision at Sec. 5K2.24 (Commission of Offense While
Wearing or Displaying Unauthorized or Counterfeit Insignia or Uniform).
The amendment also makes several changes to Chapter Five. The
chapter is retitled ``Determining the Sentencing Range and Options
Under the Guidelines'' to focus on the rules pertaining to the
calculation of the guideline range, and the introductory commentary is
revised to better reflect the chapter's purpose by noting that ``a
sentence is within the guidelines if it complies with each applicable
section of this chapter.'' All provisions previously contained in
Chapter Five, Part H (Specific Offender Characteristics), and most of
the provisions in Chapter Five, Part K (Departures), are deleted. Only
the provisions pertaining to substantial assistance are retained under
Sec. 5K1.1, and the provision pertaining to early disposition programs
is moved from Sec. 5K3.1 to Chapter Three, Part F.
Chapter Five is also amended at Sec. 5B1.1 (Imposition of a Term
of Probation), Sec. 5D1.1 (Imposition of a Term of Supervised
Release), and Sec. 5D1.3 (Conditions of Supervised Release) to
emphasize the factors courts are statutorily required to consider in
determining the conditions of probation and supervised release. The
commentary is further revised to retain factors that the Commission had
previously identified as relevant in Chapter Five, Part H pursuant to
the congressional guidance provided to the Commission in 28 U.S.C.
994(d) and (e).
Changes are also made to Sec. 5G1.3 (Imposition of a Sentence on a
Defendant Subject to an Undischarged Term of Imprisonment or
Anticipated State Term of Imprisonment) in response to comment urging
the Commission to retain the guidance regarding certain undischarged or
discharged terms of imprisonment currently contained in Sec. 5G1.3,
Application Note 4(E), and Sec. 5K2.23 (Discharged Terms of
Imprisonment (Policy Statement)). These procedural aspects of imposing
a sentence are particularly complex and at times confusing for courts
given the intersection of a court's authority to sentence and the
Bureau of Prisons' authority to execute that sentence. The amendment
thus makes several changes to the commentary in Sec. 5G1.3 to ensure
courts continue to receive guidance on the treatment of undischarged
and discharged sentences not otherwise addressed in the guideline.
First, a new application note is added at Application Note 4(E), which
would provide that where the court accounts for an undischarged term of
imprisonment covered by subsection (d), the court should clearly state
that the sentence was imposed pursuant to 18 U.S.C. 3553(a), rather
than as a credit for time served, to avoid confusion with the Federal
Bureau of Prisons' exclusive authority under 18 U.S.C. 3585(b) to grant
credit for time served under certain circumstances. Similarly, a new
Application Note 5 would provide similar guidance on the court's
authority to consider an already discharged term of imprisonment that
would, if undischarged, qualify for consideration under Sec. 5G1.3(b).
This new Application Note would preserve the concept previously
addressed in Sec. 5K2.23.
Finally, in conjunction with the amendment, the Commission plans to
compile the deleted departure provisions, as they were last provided in
the 2024 edition of the Guidelines Manual, in a new Part III of
Appendix B. At the time these departure provisions were promulgated,
they represented grounds that the Commission expressly authorized in
the Guidelines Manual as a basis for a sentence outside of the
otherwise applicable guideline range. These provisions, which were
based on various circumstances of the offense, specific personal
characteristics, and certain procedural history of the case, reflected
the Commission's determination that such circumstances

[[Page 19856]]

were outside of the heartland of offenses addressed by the guidelines
and warranted the court's consideration in imposing sentence. Because
the Commission envisions this amendment to be outcome neutral, the
introduction to the compilation of deleted departure provisions
explains that the removal of departures from the Guidelines Manual does
not reflect a determination by the Commission that the rationale
underlying the deleted departure provisions is no longer informative
and does not serve as a limit to the information courts may consider in
imposing a sentence. It is the Commission's intent that judges who
would have relied upon facts previously identified as a basis for a
departure will continue to have the authority to rely upon such facts,
or any other relevant factors, to impose a sentence outside of the
applicable guideline range as a variance under 18 U.S.C. 3553(a).

(2) Request for Comment on Possible Retroactive Application of Parts A
and B of Amendment 1, and Subparts 1 and 2 of Part A of Amendment 2

On April 30, 2025, the Commission submitted to the Congress
amendments to the sentencing guidelines, policy statements, and
official commentary, which become effective on November 1, 2025, unless
Congress acts to the contrary. Such amendments and the reason for each
amendment are included in this notice.
Section 3582(c)(2) of title 18, United States Code, provides that
``in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon
motion of the defendant or the Director of the Bureau of Prisons, or on
its own motion, the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that
they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.'' Pursuant to 28
U.S.C. 994(u), ``[i]f the Commission reduces the term of imprisonment
recommended in the guidelines applicable to a particular offense or
category of offenses, it shall specify in what circumstances and by
what amount the sentences of prisoners serving terms of imprisonment
for the offense may be reduced.'' The Commission lists in subsection
(d) of Sec. 1B1.10 (Reduction in Term of Imprisonment as a Result of
Amended Guideline Range (Policy Statement)) the specific guideline
amendments that the court may apply retroactively under 18 U.S.C.
3582(c)(2).
The following amendments may have the effect of lowering guidelines
ranges: Part A (Circuit Conflict Concerning ``Physically Restrained''
Enhancements) and Part B (Circuit Conflict Concerning the Meaning of
``Intervening Arrest'' in Sec. 4A1.2(a)(2)) of Amendment 1; and
Subpart 1 (Mitigating Role Provisions at Sec. 2D1.1(a)(5)) and Subpart
2 (Special Instruction Relating to Sec. 3B1.2) of Amendment 2. The
Commission intends to consider whether, pursuant to 18 U.S.C.
3582(c)(2) and 28 U.S.C. 994(u), any or all of these amendments should
be included in Sec. 1B1.10(d) as an amendment that may be applied
retroactively to previously sentenced defendants. In considering
whether to do so, the Commission will consider, among other things, a
retroactivity impact analysis and public comment. Accordingly, the
Commission seeks public comment on whether it should make any or all
the subparts or parts of the amendments listed above available for
retroactive application. To help inform public comment, the
retroactivity impact analyses of these amendments will be made
available to the public as soon as practicable.
The Background Commentary to Sec. 1B1.10 lists the purpose of the
amendment, the magnitude of the change in the guideline range made by
the amendment, and the difficulty of applying the amendment
retroactively to determine an amended guideline range under Sec.
1B1.10(b) as among the factors the Commission considers in selecting
the amendments included in Sec. 1B1.10(d). To the extent practicable,
public comment should address each of these factors.
The Commission seeks comment on whether it should list in Sec.
1B1.10(d) as changes that may be applied retroactively to previously
sentenced defendants any or all of the following subparts and parts of
these amendments: Part A (Circuit Conflict Concerning ``Physically
Restrained'' Enhancements) and Part B (Circuit Conflict Concerning the
Meaning of ``Intervening Arrest'' in Sec. 4A1.2(a)(2)) of Amendment 1;
and Subpart 1 (Mitigating Role Provisions at Sec. 2D1.1(a)(5)) and
Subpart 2 (Special Instruction Relating to Sec. 3B1.2) of Part A of
Amendment 2. For each subpart and part of the amendments listed above,
the Commission requests comment on whether any such subpart or part
should be listed in Sec. 1B1.10(d) as an amendment that may be applied
retroactively.
If the Commission does list any or all the subparts or parts of the
amendments listed above in Sec. 1B1.10(d) as an amendment that may be
applied retroactively to previously sentenced defendants, should the
Commission provide further guidance or limitations regarding the
circumstances in which and the amount by which sentences may be
reduced?

[FR Doc. 2025-07785 Filed 5-8-25; 8:45 am]
BILLING CODE 2210-40-P