Notice2023-01346
Sentencing Guidelines for United States Courts
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 2, 2023
Issuing agencies
United States Sentencing Commission
Abstract
The United States Sentencing Commission is considering promulgating amendments to the sentencing guidelines, policy statements, and commentary. This notice sets forth the proposed amendments and, for each proposed amendment, a synopsis of the issues addressed by that amendment. This notice also sets forth several issues for comment, some of which are set forth together with the proposed amendments, and one of which (regarding retroactive application of proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION section of this notice.
Full Text
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<title>Federal Register, Volume 88 Issue 22 (Thursday, February 2, 2023)</title>
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[Federal Register Volume 88, Number 22 (Thursday, February 2, 2023)]
[Notices]
[Pages 7180-7234]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-01346]
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Vol. 88
Thursday,
No. 22
February 2, 2023
Part III
United States Sentencing Commission
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Sentencing Guidelines for United States Courts; Notice
Federal Register / Vol. 88, No. 22 / Thursday, February 2, 2023 /
Notices
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice and request for public comment and hearing.
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SUMMARY: The United States Sentencing Commission is considering
promulgating amendments to the sentencing guidelines, policy
statements, and commentary. This notice sets forth the proposed
amendments and, for each proposed amendment, a synopsis of the issues
addressed by that amendment. This notice also sets forth several issues
for comment, some of which are set forth together with the proposed
amendments, and one of which (regarding retroactive application of
proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION
section of this notice.
DATES:
Written Public Comment. Written public comment regarding the
proposed amendments and issues for comment set forth in this notice,
including public comment regarding retroactive application of any of
the proposed amendments, should be received by the Commission not later
than March 14, 2023. Any public comment received after the close of the
comment period may not be considered.
Public Hearing. The Commission may hold a public hearing regarding
the proposed amendments and issues for comment set forth in this
notice. Further information regarding any public hearing that may be
scheduled, including requirements for testifying and providing written
testimony, as well as the date, time, location, and scope of the
hearing, will be provided by the Commission on its website at
<a href="http://www.ussc.gov">www.ussc.gov</a>.
ADDRESSES: There are two methods for submitting public comment.
Electronic Submission of Comments. Comments may be submitted
electronically via the Commission's Public Comment Submission Portal at
<a href="https://comment.ussc.gov">https://comment.ussc.gov</a>. 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 200002-8002, Attention:
Public Affairs--Proposed Amendments.
FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs
Specialist, (202) 502-4597.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day of May each
year pursuant to 28 U.S.C. 994(p).
Publication of a proposed amendment requires the affirmative vote
of at least three voting members of the Commission and is deemed to be
a request for public comment on the proposed amendment. See USSC Rules
of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote
of at least four voting members is required to promulgate an amendment
and submit it to Congress. See id. 2.2; 28 U.S.C. 994(p).
The proposed amendments in this notice are presented in one of two
formats. First, some of the amendments are proposed as specific
revisions to a guideline, policy statement, or commentary. Bracketed
text within a proposed amendment indicates a heightened interest on the
Commission's part in comment and suggestions regarding alternative
policy choices; for example, a proposed enhancement of [2][4][6] levels
indicates that the Commission is considering, and invites comment on,
alternative policy choices regarding the appropriate level of
enhancement. Similarly, bracketed text within a specific offense
characteristic or application note means that the Commission
specifically invites comment on whether the proposed provision is
appropriate. Second, the Commission has highlighted certain issues for
comment and invites suggestions on how the Commission should respond to
those issues.
In summary, the proposed amendments and issues for comment set
forth in this notice are as follows:
(1) A proposed amendment to Sec. 1B1.13 (Reduction in Term of
Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)) to
implement the First Step Act of 2018 (Pub. L. 115-391) and revise the
list of circumstances that should be considered extraordinary and
compelling reasons for sentence reductions under 18 U.S.C.
3582(c)(1)(A), and related issues for comment;
(2) A two-part proposed amendment to implement the First Step Act
of 2018 (Pub. L. 115-391) including (A) (i) amendments to Sec. 5C1.2
(Limitation on Applicability of Statutory Minimum Sentences in Certain
Cases) to reflect the broader class of defendants who are eligible for
safety valve relief under the First Step Act and to provide additional
conforming changes; (ii) amendments to Sec. 4A1.3 (Departures Based on
Inadequacy of Criminal History Category (Policy Statement)) to make
conforming changes; (iii) two options for amending Sec. Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) and 2D1.11 (Unlawfully Distributing, Importing, Exporting
or Possessing a Listed Chemical; Attempt or Conspiracy) in light of the
proposed revisions to Sec. 5C1.2; and (iv) related issues for comment;
and (B) amendments to Sec. 2D1.1 to make the guideline's base offense
levels consistent with the First Step Act's changes to the type of
prior offenses that trigger enhanced mandatory minimum penalties;
(3) A multi-part proposed amendment to Sec. 2K2.1 (Unlawful
Receipt, Possession, or Transportation of Firearms or Ammunition;
Prohibited Transactions Involving Firearms or Ammunition) to implement
the Bipartisan Safer Communities Act (Pub. L. 117-159) and make other
changes that may be warranted to appropriately address firearms
offenses, including (A) amendments to Appendix A (Statutory Index) and
two options for amending Sec. 2K2.1 to address (i) the new offenses
established by the Bipartisan Safer Communities Act and to increase
penalties for offenses involving straw purchases and firearms
trafficking as required by the directive contained in the Act; (ii) the
part of the directive in the Bipartisan Safer Communities Act that
requires the Commission to ``consider, in particular, an appropriate
amendment to reflect the intent of Congress that straw purchasers
without significant criminal histories receive sentences that are
sufficient to deter participation in such activities and reflect the
defendant's role and culpability, and any coercion, domestic violence
survivor history, or other mitigating factors''; (iii) the part of the
directive in the Bipartisan Safer Communities Act that requires the
Commission to ``review and amend its guidelines and policy statements
to reflect the intent of Congress that a person convicted of an offense
under
[[Page 7181]]
section 932 or 933 of title 18, United States Code, who is affiliated
with a gang, cartel, organized crime ring, or other such enterprise
should be subject to higher penalties than an otherwise unaffiliated
individual''; and (iv) related issues for comment; (B) amendments to
Sec. 2K2.1 in response to concerns expressed by some commenters that
the guideline does not adequately address firearms that are not marked
by a serial number (i.e., ``ghost guns''), and a related issue for
comment; and (C) a series of issues for comment on possible further
revisions to Sec. 2K2.1 that may be warranted to appropriately address
firearms offenses;
(4) A two-part proposed amendment addressing certain circuit
conflicts involving Sec. 3E1.1 (Acceptance of Responsibility) and
Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1), including (A)
amendments to Sec. 3E1.1 to address circuit conflicts regarding the
permissible bases for withholding a reduction under Sec. 3E1.1(b), and
a related issue for comment; and (B) two options for amending Sec.
4B1.2 to address a circuit conflict concerning whether the definition
of ``controlled substance offense'' in Sec. 4B1.2(b) only covers
offenses involving substances controlled by federal law, and a related
issue for comment;
(5) A multi-part proposed amendment in response to recently enacted
legislation, including (A) amendments to Appendix A (Statutory Index)
and the Commentary to Sec. 2N2.1 (Violations of Statutes and
Regulations Dealing with Any Food, Drug, Biological Product, Device,
Cosmetic, Agricultural Product, or Consumer Product) in response to the
FDA Reauthorization Act of 2017 (Pub. L. 115-52), and to the Commentary
to Sec. 2N1.1 (Tampering or Attempting to Tamper Involving Risk of
Death or Bodily Injury) to make a technical correction, and a related
issue for comment; (B) amendments to Appendix A, Sec. 2G1.1 (Promoting
a Commercial Sex Act or Prohibited Sexual Conduct with an Individual
Other than a Minor), and Sec. 2G1.3 (Promoting a Commercial Sex Act or
Prohibited Sexual Conduct with a Minor; Transportation of Minors to
Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to
Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor;
Sex Trafficking of Children; Use of Interstate Facilities to Transport
Information about a Minor), as well as bracketing the possibility of
amending the Commentary to Sec. Sec. 4B1.5 (Repeat and Dangerous Sex
Offender Against Minors) and 5D1.2 (Term of Supervised Release), in
response to the Allow States and Victims to Fight Online Sex
Trafficking Act of 2017 (Pub. L. 115-164), and related issues for
comment; (C) amendments to Appendix A and Sec. 2A5.2 (Interference
with Flight Crew Member or Flight Attendant; Interference with
Dispatch, Navigation, Operation, or Maintenance of Mass Transportation
Vehicle), as well as the Commentary to Sec. Sec. 2A2.4 (Obstructing or
Impeding Officers) and 2X5.2 (Class A Misdemeanors (Not Covered by
Another Specific Offense Guideline)), in response to the FAA
Reauthorization Act of 2018 (Pub. L. 115-254), and a related issue for
comment; (D) amendments to Appendix A and the Commentary to Sec. Sec.
2B1.1 (Theft, Property Destruction, and Fraud) and 2B4.1 (Bribery in
Procurement of Bank Loan and Other Commercial Bribery) in response to
the SUPPORT for Patients and Communities Act (Pub. L. 115-271), and a
related issue for comment; (E) amendments to Appendix A and the
Commentary to Sec. 2X5.2 in response to the Amy, Vicky, and Andy Child
Pornography Victim Assistance Act of 2018 (Pub. L. 115-299), and a
related issue for comment; (F) amendments to Appendix A and the
Commentary to Sec. 2H3.1 (Interception of Communications;
Eavesdropping; Disclosure of Certain Private or Protected Information)
in response to the Foundations for Evidence-Based Policymaking Act of
2018 (Pub. L. 115-435), and a related issue for comment; (G) amendments
to Appendix A and the Commentary to Sec. 2X5.2 in response to the
National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-
92), and a related issue for comment; (H) amendments to Appendix A and
the Commentary to Sec. 2B1.1 in response to the Representative Payee
Fraud Prevention Act of 2019 (Pub. L. 116-126), and a related issue for
comment; (I) amendments to Appendix A and the Commentary to Sec. 2B1.1
in response to the Stop Student Debt Relief Scams Act of 2019 (Pub. L.
116-251), and a related issue for comment; (J) amendments to Appendix A
in response to the Protecting Lawful Streaming Act of 2020, part of the
Consolidation Appropriation Act, 2021 (Pub. L. 116-260), and related
issues for comment; and (K) amendments to Appendix A and the Commentary
to Sec. 2S1.3 (Structuring Transactions to Evade Reporting
Requirements; Failure to Report Cash or Monetary Transactions; Failure
to File Currency and Monetary Instrument Report; Knowingly Filing False
Reports; Bulk Cash Smuggling; Establishing or Maintaining Prohibited
Accounts) in response to the William M. (Mac) Thornberry National
Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283), and a
related issue for comment;
(6) A multi-part proposed amendment relating to Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1), including (A) (i)
amendments Sec. 4B1.2 to eliminate the categorical approach from the
guidelines by defining ``crime of violence'' and ``controlled substance
offense'' based upon a list of guidelines, rather than offenses or
elements of an offense; (ii) conforming changes to the guidelines that
use the terms ``crime of violence'' and ``controlled substance
offense'' and define these terms by making specific reference to Sec.
4B1.2; and (iii) related issues for comment; (B) amendments to Sec.
4B1.2 and the Commentary to Sec. 2L1.2 (Unlawfully Entering or
Remaining in the United States) to address the concern that certain
robbery offenses, such as Hobbs Act robbery, no longer constitute a
``crime of violence'' under Sec. 4B1.2, as amended in 2016, because
these offenses do not meet either the generic definition of ``robbery''
or the new guidelines definition of ``extortion,'' and related issues
for comment; (C) two options for amending Sec. 4B1.2 to address two
circuit conflicts regarding the commentary provision stating that the
terms ``crime of violence'' and ``controlled substance offense''
include the offenses of aiding and abetting, conspiring to commit, and
attempting to commit a ``crime of violence'' and a ``controlled
substance offense,'' and related issues for comment; and (D) revisions
to the definition of ``controlled substance offense'' in Sec. 4B1.2(b)
to include offenses involving an offer to sell a controlled substance
and offenses described in 46 U.S.C. 70503(a) and 70506(b), and a
related issue for comment;
(7) A multi-part proposed amendment relating to criminal history,
including (A) three options for amending the Guidelines Manual to
address the impact of ``status points'' under subsection (d) of section
4A1.1 (Criminal History Category), and related issues for comment; (B)
(i) two options for establishing a new Chapter Four guideline, at Sec.
4C1.1 (Adjustment for Certain Zero-Point Offenders), that would provide
an offense level decrease for offenders with zero criminal history
points who meet certain criteria; (ii) amendments to the Commentary to
Sec. 5C1.1 (Imposition of a Term of Imprisonment) to address the
alternatives to incarceration available to offenders with zero criminal
history points who receive an adjustment under the proposed Sec.
4C1.1, and conforming changes to Sec. 4A1.3 (Departures Based on
[[Page 7182]]
Inadequacy of Criminal History Category (Policy Statement)) and Chapter
One, Part A, Subpart 1(4)(d) (Probation and Split Sentences); and (iii)
related issues for comment; (C) amendments to the Commentary to Sec.
4A1.3 (Departures Based on Inadequacy of Criminal History Category
(Policy Statement)) to include sentences resulting from possession of
marihuana offenses as an example of when a downward departure from the
defendant's criminal history may be warranted, and related issues for
comment;
(8) A proposed amendment to Sec. 1B1.3 (Relevant Conduct (Factors
that Determine the Guideline Range)) and Sec. 6A1.3 (Resolution of
Disputed Factors (Policy Statement)) to generally limit the use of
acquitted conduct for purposes of determining the guideline range,
except when such conduct was admitted by the defendant during a guilty
plea colloquy or was found by the trier of fact beyond a reasonable
doubt to establish, in whole or in part, the instant offense of
conviction, and related issues for comment;
(9) A two-part proposed amendment to certain guidelines applicable
to sexual abuse offenses, including (A) amendments to Appendix A
(Statutory Index), Sec. 2A3.3 (Criminal Sexual Abuse of a Ward or
Attempt to Commit Such Acts), and the Commentary to Sec. 2H1.1
(Offenses Involving Individual Rights) in response to the Violence
Against Women Act Reauthorization Act of 2022, which was part of the
Consolidated Appropriations Act, 2022 (Pub. L. 117-103), and related
issues for comment; and (B) amendments to Sec. 2A3.3 to address
concerns regarding the increasing number of cases involving sexual
abuse committed by law enforcement or correctional personnel against
victims in their custody, care, or supervision, and related issues for
comment;
(10) Issues for comment regarding a potential study of federal
alternative-to-incarceration court programs and possible amendments to
the Guidelines Manual to address such programs;
(11) A proposed amendment to Sec. 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including Possession with Intent
to Commit These Offenses); Attempt or Conspiracy) to address offenses
involving ``fake pills'' (i.e., illicitly manufactured pills
represented or marketed as legitimate pharmaceutical pills) containing
fentanyl or fentanyl analogue, and a related issue for comment;
(12) A two-part proposed amendment addressing miscellaneous
guideline issues, including (A) amendments to Sec. 3D1.2 (Grouping of
Closely Related Counts) to address the interaction between Sec. 2G1.3
(Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a
Minor; Transportation of Minors to Engage in a Commercial Sex Act or
Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or
Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children;
Use of Interstate Facilities to Transport Information about a Minor)
and Sec. 3D1.2(d); and (B) amendments to the Commentary to Sec. 5F1.7
(Shock Incarceration Program (Policy Statement)) to reflect the fact
that the Bureau of Prisons no longer operates a shock incarceration
program; and
(13) A multi-part proposed amendment to make technical and other
non-substantive changes to the Guidelines Manual, including (A)
technical changes to provide updated references to certain sections in
the United States Code that were redesignated in legislation; (B)
technical changes to reflect the editorial reclassification of certain
sections in the United States Code; (C) technical changes throughout
the Commentary to Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy) to, among other things,
reorganize in alphabetical order the controlled substances contained in
the tables therein to make them more user-friendly; (D) technical
changes to the commentary of several guidelines to provide references
to the specific applicable provisions of 18 U.S.C. 876; (E) technical
changes to the commentary of several guidelines in Chapter Eight
(Sentencing of Organizations); and (F) clerical changes to correct
typographical errors in several guidelines, policy statements, and
commentary.
In addition, the Commission requests public comment regarding
whether, pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any
proposed amendment published in this notice should be included in
subsection (d) of Sec. 1B1.10 (Reduction in Term of Imprisonment as a
Result of Amended Guideline Range (Policy Statement)) as an amendment
that may be applied retroactively to previously sentenced defendants.
The Commission lists in Sec. 1B1.10(d) the specific guideline
amendments that the court may apply retroactively under 18 U.S.C.
3582(c)(2). The Background Commentary to Sec. 1B1.10 lists the purpose
of the amendment, the magnitude of the change in the guideline range
made by the amendment, and the difficulty of applying the amendment
retroactively to determine an amended guideline range under Sec.
1B1.10(b) as among the factors the Commission considers in selecting
the amendments included in Sec. 1B1.10(d). To the extent practicable,
public comment should address each of these factors.
The text of the proposed amendments and related issues for comment
are set forth below. Additional information pertaining to the proposed
amendments and issues for comment described in this notice may be
accessed through the Commission's website at <a href="http://www.ussc.gov">www.ussc.gov</a>.
Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice
and Procedure 2.2, 4.3, 4.4.
Carlton W. Reeves,
Chair.
Proposed Amendments to the Sentencing Guidelines, Policy Statements,
and Official Commentary
1. First Step Act--Reduction in Term of Imprisonment Under 18 U.S.C.
3582(c)(1)(A)
Synopsis of Proposed Amendment: This proposed amendment responds to
the First Step Act of 2018, Public Law 115-391 (Dec. 21, 2018) (``First
Step Act'' or ``Act''), which contains numerous provisions related to
sentencing, prison programming, recidivism reduction efforts, and
reentry procedures. Specifically, the sentencing reform provisions of
the Act (1) amended the sentencing modification procedures set forth in
18 U.S.C. 3582(c)(1)(A) to allow a defendant to file a motion seeking a
reduction in the defendant's term of imprisonment under certain
circumstances; (2) reduced certain enhanced penalties imposed pursuant
to 21 U.S.C. 851 for some repeat offenders and changed the prior
offenses that qualify for such enhanced penalties; (3) broadened the
eligibility criteria of the ``safety valve'' provision at 18 U.S.C.
3553(f); (4) limited the ``stacking'' of certain mandatory minimum
penalties imposed under 18 U.S.C. 924(c) for multiple offenses that
involve using, carrying, possessing, brandishing, or discharging a
firearm in furtherance of a crime of violence or drug trafficking
offense; and (5) allowed for retroactive application of the Fair
Sentencing Act of 2010. Revisions to the Guidelines Manual may be
appropriate to implement the Act's changes to 18 U.S.C. 3582(c)(1)(A).
The Sentencing Reform Act of 1984 (``SRA'') established a system of
determinate sentencing, prohibiting a court from modifying a term of
imprisonment once it had been imposed
[[Page 7183]]
except in certain instances specified in section 3582(c) of title 18,
United States Code. One of those instances is set forth in 18 U.S.C.
3582(c)(1)(A), which authorizes a court to reduce the term of
imprisonment of a defendant, after considering the factors in 18 U.S.C.
3553(a) to the extent they are applicable, if ``extraordinary and
compelling reasons'' warrant such a reduction or the defendant is at
least 70 years of age and meets certain other criteria. Such a
reduction must be consistent with applicable policy statements issued
by the Sentencing Commission. See 18 U.S.C. 3582(c)(1).
Prior to the First Step Act, a court was authorized to grant a
reduction in a defendant's term of imprisonment under section
3582(c)(1)(A) only ``upon motion of the Director of the Bureau of
Prisons.'' Section 603(b) of the First Step Act amended 18 U.S.C.
3582(c)(1)(A) to allow a defendant to file a motion seeking a sentence
reduction after the defendant has fully exhausted all administrative
rights to appeal a failure of the Bureau of Prisons (``BOP'') to bring
a motion on the defendant's behalf or the lapse of 30 days from the
receipt of such a request by the warden of the defendant's facility,
whichever is earlier.
Section 3582(c)(1)(A) does not define the phrase ``extraordinary
and compelling reasons.'' Instead, the SRA directs that ``[t]he
Commission, in promulgating general policy statements regarding the
sentencing modification provisions in section 3582(c)(1)(A) of title
18, shall describe what should be considered extraordinary and
compelling reasons for sentence reduction, including the criteria to be
applied and a list of specific examples.'' 28 U.S.C. 994(t). Section
994(t) also directs that ``[r]ehabilitation of the defendant alone
shall not be considered an extraordinary and compelling reason.'' Id.
The SRA provides the Commission with the authority to set the policy
regarding what reasons should qualify as ``extraordinary and compelling
reasons'' for a sentence reduction under section 3582(c)(1)(A) and the
courts with the authority to find that the ``extraordinary and
compelling reasons warrant such a reduction . . . and that such
reduction is consistent with applicable policy statements issued by the
Sentencing Commission.'' See 28 U.S.C. 994(a)(2)(C), 994(t), & 995(b);
18 U.S.C. 3582(c)(1)(A).
The Commission implemented the section 994(t) directive by
promulgating the policy statement at Sec. 1B1.13 (Reduction in Term of
Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)). See
U.S. Sent'g Comm'n, Guidelines Manual, Sec. 1B1.13 (Nov. 2021).
Currently, Sec. 1B1.13 provides only for motions filed by the Director
of the BOP and does not account for motions filed by a defendant under
the amended statute. The policy statement describes the circumstances
that constitute ``extraordinary and compelling reasons'' in the
Commentary to Sec. 1B1.13. Application Note 1(A) through (C) provides
for three categories of extraordinary and compelling reasons, i.e.,
``Medical Condition of the Defendant,'' ``Age of the Defendant,'' and
``Family Circumstances.'' See USSG Sec. 1B1.13, comment. (n.1(A)-(C)).
Application Note 1(D) provides that the Director of the BOP may
determine whether there exists in a defendant's case ``other reasons''
that are extraordinary and compelling ``other than, or in combination
with,'' the reasons described in Application Note 1(A) through (C).
USSG Sec. 1B1.13, comment. (n.1(D)).
The proposed amendment would implement the First Step Act's
relevant provisions by amending Sec. 1B1.13 and its accompanying
commentary. Specifically, the proposed amendment would revise the
policy statement to reflect that 18 U.S.C. 3582(c)(1)(A), as amended by
the First Step Act, authorizes a defendant to a file a motion seeking a
sentence reduction.
The proposed amendment would also revise the list of
``extraordinary and compelling reasons'' in Sec. 1B1.13 in several
ways.
First, the proposed amendment would move the list of extraordinary
and compelling reasons from the Commentary to the guideline itself as a
new subsection (b). The new subsection (b) would set forth the same
three categories of extraordinary and compelling reasons currently
found in Application Note 1(A) through (C) (with the revisions
described below), add two new categories, and revise the ``Other
Reasons'' category currently found in Application Note 1(D). New
subsection (b) would also provide that extraordinary and compelling
reasons exist under any of the circumstances, or a combination thereof,
described in such categories.
Second, the proposed amendment would add two new subcategories to
the ``Medical Condition of the Defendant'' category at new subsection
(b)(1). The first new subcategory is for a defendant suffering from a
medical condition that requires long-term or specialized medical care,
without which the defendant is at risk of serious deterioration in
health or death, that is not being provided in a timely or adequate
manner. The other new subcategory is for a defendant who presents the
following circumstances: (1) the defendant is housed at a correctional
facility affected or at risk of being affected by an ongoing outbreak
of infectious disease or an ongoing public health emergency declared by
the appropriate governmental authority; (2) the defendant is at
increased risk of suffering severe medical complications or death as a
result of exposure to the ongoing outbreak of infectious disease or
ongoing public health emergency; and (3) such risk cannot be mitigated
in a timely or adequate manner.
Third, the proposed amendment would modify the ``Family
Circumstances'' category at new subsection (b)(3) in three ways. First,
the proposed amendment would revise the current subcategory relating to
the death or incapacitation of the caregiver of a defendant's minor
child by making it also applicable to a defendant's child who is 18
years of age or older and incapable of self-care because of a mental or
physical disability or a medical condition. Second, the proposed
amendment would add a new subcategory to the ``Family Circumstances''
category for cases where a defendant's parent is incapacitated and the
defendant would be the only available caregiver for the parent. Third,
the proposed amendment brackets the possibility of adding a more
general subcategory applicable if the defendant presents circumstances
similar to those listed in the other subcategories of ``Family
Circumstances'' involving any other immediate family member or an
individual whose relationship with the defendant is similar in kind to
that of an immediate family member.
Fourth, the proposed amendment brackets the possibility of adding
two new categories: (1) Victim of Assault (``The defendant was a victim
of sexual assault or physical abuse resulting in serious bodily injury
committed by a correctional officer or other employee or contractor of
the Bureau of Prisons while in custody.''); and (2) Changes in Law
(``The defendant is serving a sentence that is inequitable in light of
changes in the law.'').
Fifth, the proposed amendment would revise the provision currently
found in Application Note 1(D) of Sec. 1B1.13. Three options are
provided. All three options would redesignate this category as ``Other
Circumstances'' and expand the scope of the category to apply to all
motions filed under 18 U.S.C. 3582(c)(1)(A), regardless of whether such
motion is filed by the Director of the BOP or the defendant. Option 1
would provide that this
[[Page 7184]]
category of extraordinary and compelling reasons applies in cases where
a defendant presents any other circumstance or a combination of
circumstances similar in nature and consequence to any of the
circumstances described in paragraphs (1) through [(3)][(4)][(5)] of
Sec. 1B1.13. Option 2 would provide that that this category applies
if, as a result of changes in the defendant's circumstances [or
intervening events that occurred after the defendant's sentence was
imposed], it would be inequitable to continue the defendant's
imprisonment or require the defendant to serve the full length of the
sentence. Option 3 would track the language in current Application Note
1(D) of Sec. 1B1.13 and apply if the defendant presents an
extraordinary and compelling reason other than, or in combination with,
the circumstances described in paragraphs (1) through [(3)][(4)][(5)].
Finally, the proposed amendment would move current Application Note
3 (stating that, pursuant to 28 U.S.C. 994(t), rehabilitation of a
defendant is not, by itself, an extraordinary and compelling reason for
purposes of Sec. 1B1.13) into the guideline as a new subsection (c).
In addition, as conforming changes, the proposed amendment would delete
application notes 2 (concerning the foreseeability of extraordinary and
compelling reasons), 4 (concerning a motion by the Director of the
Bureau of Prisons), and 5 (concerning application of subdivision 3),
and make a minor technical change to the Background commentary.
Issues for comment are also provided.
Proposed Amendment
Section 1B1.13 is amended--
by inserting at the beginning the following new heading: ``(a) In
General.--'';
by striking ``Bureau of Prisons under'' and inserting ``Bureau of
Prisons or the defendant pursuant to'';
and inserting at the end the following:
``(b) Extraordinary and Compelling Reasons.--Extraordinary and
compelling reasons exist under any of the following circumstances or a
combination thereof:
(1) Medical Circumstances of the Defendant.--
(A) The defendant is suffering from a terminal illness (i.e., a
serious and advanced illness with an end of life trajectory). A
specific prognosis of life expectancy (i.e., a probability of death
within a specific time period) is not required. Examples include
metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS),
end-stage organ disease, and advanced dementia.
(B) The defendant is--
(i) suffering from a serious physical or medical condition,
(ii) suffering from a serious functional or cognitive impairment,
or
(iii) experiencing deteriorating physical or mental health because
of the aging process,
that substantially diminishes the ability of the defendant to provide
self-care within the environment of a correctional facility and from
which he or she is not expected to recover.
(C) The defendant is suffering from a medical condition that
requires long-term or specialized medical care, without which the
defendant is at risk of serious deterioration in health or death, that
is not being provided in a timely or adequate manner.
(D) The defendant presents the following circumstances--
(i) the defendant is housed at a correctional facility affected or
at risk of being affected by (I) an ongoing outbreak of infectious
disease, or (II) an ongoing public health emergency declared by the
appropriate federal, state, or local authority;
(ii) the defendant is at increased risk of suffering severe medical
complications or death as a result of exposure to the ongoing outbreak
of infectious disease or the ongoing public health emergency described
in clause (i); and
(iii) such risk cannot be mitigated in a timely or adequate manner.
(2) Age of the Defendant.--The defendant (A) is at least 65 years
old; (B) is experiencing a serious deterioration in physical or mental
health because of the aging process; and (C) has served at least 10
years or 75 percent of his or her term of imprisonment, whichever is
less.
(3) Family Circumstances of the Defendant.--
(A) The death or incapacitation of the caregiver of the defendant's
minor child or the defendant's child who is 18 years of age or older
and incapable of self-care because of a mental or physical disability
or a medical condition.
(B) The incapacitation of the defendant's spouse or registered
partner when the defendant would be the only available caregiver for
the spouse or registered partner.
(C) The incapacitation of the defendant's parent when the defendant
would be the only available caregiver for the parent.
[(D) The defendant presents circumstances similar to those listed
in paragraphs (3)(A) through (3)(C) involving any other immediate
family member or an individual whose relationship with the defendant is
similar in kind to that of an immediate family member.]
[(4) Victim of Assault.--The defendant was a victim of sexual
assault or physical abuse resulting in serious bodily injury committed
by a correctional officer or other employee or contractor of the Bureau
of Prisons while in custody.]
[(5) Changes in Law.--The defendant is serving a sentence that is
inequitable in light of changes in the law.]
[Option 1:
(6) Other Circumstances.--The defendant presents any other
circumstance or a combination of circumstances similar in nature and
consequence to any of the circumstances described in paragraphs (1)
through [(3)][(4)][(5)].]
[Option 2:
(6) Other Circumstances.--As a result of changes in the defendant's
circumstances [or intervening events that occurred after the
defendant's sentence was imposed], it would be inequitable to continue
the defendant's imprisonment or require the defendant to serve the full
length of the sentence.]
[Option 3:
(6) Other Circumstances.--The defendant presents an extraordinary
and compelling reason other than, or in combination with, the
circumstances described in paragraphs (1) through [(3)][(4)][(5)].]
(c) Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. 994(t),
rehabilitation of the defendant is not, by itself, an extraordinary and
compelling reason for purposes of this policy statement.''.
The Commentary to Sec. 1B1.13 captioned ``Application Notes'' is
amended by striking it as follows:
``Application Notes:
1. Extraordinary and Compelling Reasons.--Provided the defendant
meets the requirements of subdivision (2), extraordinary and compelling
reasons exist under any of the circumstances set forth below:
(A) Medical Condition of the Defendant.--
(i) The defendant is suffering from a terminal illness (i.e., a
serious and advanced illness with an end of life trajectory). A
specific prognosis of life expectancy (i.e., a probability of death
within a specific time period) is not required. Examples include
metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS),
end-stage organ disease, and advanced dementia.
(ii) The defendant is--
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment,
or
[[Page 7185]]
(III) experiencing deteriorating physical or mental health because
of the aging process,
that substantially diminishes the ability of the defendant to provide
self-care within the environment of a correctional facility and from
which he or she is not expected to recover.
(B) Age of the Defendant.--The defendant (i) is at least 65 years
old; (ii) is experiencing a serious deterioration in physical or mental
health because of the aging process; and (iii) has served at least 10
years or 75 percent of his or her term of imprisonment, whichever is
less.
(C) Family Circumstances.--
(i) The death or incapacitation of the caregiver of the defendant's
minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered
partner when the defendant would be the only available caregiver for
the spouse or registered partner.
(D) Other Reasons.--As determined by the Director of the Bureau of
Prisons, there exists in the defendant's case an extraordinary and
compelling reason other than, or in combination with, the reasons
described in subdivisions (A) through (C).
2. Foreseeability of Extraordinary and Compelling Reasons.--For
purposes of this policy statement, an extraordinary and compelling
reason need not have been unforeseen at the time of sentencing in order
to warrant a reduction in the term of imprisonment. Therefore, the fact
that an extraordinary and compelling reason reasonably could have been
known or anticipated by the sentencing court does not preclude
consideration for a reduction under this policy statement.
3. Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. 994(t),
rehabilitation of the defendant is not, by itself, an extraordinary and
compelling reason for purposes of this policy statement.
4. Motion by the Director of the Bureau of Prisons.--A reduction
under this policy statement may be granted only upon motion by the
Director of the Bureau of Prisons pursuant to 18 U.S.C. 3582(c)(1)(A).
The Commission encourages the Director of the Bureau of Prisons to file
such a motion if the defendant meets any of the circumstances set forth
in Application Note 1. The court is in a unique position to determine
whether the circumstances warrant a reduction (and, if so, the amount
of reduction), after considering the factors set forth in 18 U.S.C.
3553(a) and the criteria set forth in this policy statement, such as
the defendant's medical condition, the defendant's family
circumstances, and whether the defendant is a danger to the safety of
any other person or to the community.
This policy statement shall not be construed to confer upon the
defendant any right not otherwise recognized in law.
5. Application of Subdivision (3).--Any reduction made pursuant to
a motion by the Director of the Bureau of Prisons for the reasons set
forth in subdivisions (1) and (2) is consistent with this policy
statement.''.
The Commentary to Sec. 1B1.13 captioned ``Background'' is amended
by striking ``the Commission is authorized'' and inserting ``the
Commission is required''.
Issues for Comment
1. The proposed amendment would revise the list of ``extraordinary
and compelling reasons'' in Sec. 1B1.13 (Reduction in Term of
Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)) in
several ways. The Commission invites comment on whether the proposed
amendment--in particular proposed subsections (b)(5) and (6)--exceeds
the Commission's authority under 28 U.S.C. 994(a) and (t), or any other
provision of federal law.
2. The proposed amendment would make changes to Sec. 1B1.13
(Reduction in Term of Imprisonment Under 18 U.S.C. 3582(c)(1)(A)
(Policy Statement)) and its corresponding commentary to implement the
First Step Act of 2018, Public Law 115-391 (Dec. 21, 2018). The
Commission seeks general comment on the proposed changes and whether
the Commission should make any different or additional changes to
implement the Act.
3. The proposed amendment would revise the categories of
circumstances in which ``extraordinary and compelling reasons'' exist
under the Commission's policy statement at Sec. 1B1.13. The Commission
adopted the policy statement at Sec. 1B1.13 to implement the directive
in 28 U.S.C. 994(t). As noted above, the directive requires the
Commission to ``describe what should be considered extraordinary and
compelling reasons for sentence reduction, including the criteria to be
applied and a list of specific examples.'' The Commission also has the
authority to promulgate general policy statements regarding the
application of the guidelines or other aspects of sentencing that in
the view of the Commission would further the purposes of sentencing (18
U.S.C. 3553(a)(2)), including the appropriate use of the sentence
modification provisions set forth in 18 U.S.C. 3582(c). See 28 U.S.C.
994(a)(2)(C).
The Commission seeks comment on whether the proposed categories of
circumstances are appropriate and provide clear guidance to the courts
and the Bureau of Prisons. Should the Commission further define and
expand the categories? Should the Commission provide additional or
different criteria or examples of circumstances that constitute
``extraordinary and compelling reasons''? If so, what specific criteria
or examples should the Commission provide? Should the Commission
consider an altogether different approach for describing ``what should
be considered extraordinary and compelling reasons for sentence
reduction''?
4. The proposed amendment brackets the possibility of adding a new
category of ``extraordinary and compelling reasons'' to Sec. 1B1.13
relating to defendants who are victims of sexual assault or physical
abuse resulting in serious bodily injury committed by a correctional
officer or other employee or contractor of the Bureau of Prisons while
in custody. The Commission seeks comment on whether this provision
should be expanded to include defendants who have been victims of
sexual assault or physical abuse resulting in serious bodily injury
committed by another inmate.
5. Section 1B1.10 (Reduction in Term of Imprisonment as a Result of
Amended Guideline Range (Policy Statement)) sets forth the applicable
policy statement for determining in what circumstances and to what
extent a reduction in a term of imprisonment as a result of an amended
guideline range may be granted. In Dillon v. United States, 560 U.S.
817 (2010), the Supreme Court held that proceedings under 18 U.S.C.
3582(c)(2) are not governed by United States v. Booker, 543 U.S. 220
(2005), and that Sec. 1B1.10 remains binding on courts in such
proceedings.
The Commission seeks comment on whether the proposed amendment--in
particular proposed subsections (b)(5) and (6)--is in tension with the
Commission's determinations regarding retroactivity of guideline
amendments under Sec. 1B1.10. If so, how should the Commission resolve
this tension? Should the Commission clarify the interaction between
Sec. 1B1.10 and Sec. 1B1.13? If so, how?
2. First Step Act--Drug Offenses
Synopsis of Proposed Amendment: This proposed amendment responds to
the First Step Act of 2018, Public Law 115-391 (Dec. 21, 2018) (``First
Step
[[Page 7186]]
Act'' or ``Act''), which contains numerous provisions related to
sentencing, prison programming, recidivism reduction efforts, and
reentry procedures. Although Commission action is not necessary to
implement most of the First Step Act, revisions to the Guidelines
Manual may be appropriate to implement the Act's changes to the
eligibility criteria of the ``safety valve'' provision at 18 U.S.C.
3553(f), and the recidivist penalties for drug offenders at 21 U.S.C.
841(b) and 960(b). The proposed amendment contains two parts (Parts A
and B). The Commission is considering whether to promulgate either or
both of these parts, as they are not mutually exclusive.
(A) Safety Valve
Section 3553(f) of title 18, United States Code, allows a court to
impose a sentence without regard to any statutory minimum penalty if it
finds that a defendant meets certain criteria. As originally enacted,
the safety valve applied only to offenses under 21 U.S.C. 841, 844,
846, 960, and 963 and to defendants who, among other things, had not
more than one criminal history point, as determined under the
guidelines. When it first enacted the safety valve, Congress directed
the Commission to promulgate or amend guidelines and policy statements
to ``carry out the purposes of [section 3553(f)].'' See Violent Crime
Control and Law Enforcement Act of 1994, Public Law 103-322, 80001(b).
The Commission implemented the directive by incorporating the statutory
text of section 3553(f) into the guidelines at Sec. 5C1.2 (Limitation
on Applicability of Statutory Minimum Sentences in Certain Cases). Two
other guidelines provisions, subsection (b)(18) of Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) and subsection (b)(6) of Sec. 2D1.11 (Unlawfully
Distributing, Importing, Exporting or Possessing a Listed Chemical;
Attempt or Conspiracy), currently provide a 2-level reduction in a
defendant's offense level if the defendant meets the criteria in
paragraphs (1) through (5) of Sec. 5C1.2(a).
Section 402 of the First Step Act expanded the safety valve
provision at 18 U.S.C. 3553(f) in two ways. First, the Act extended the
applicability of the safety valve to maritime offenses under 46 U.S.C.
70503 and 70506. Second, the Act amended section 3553(f)(1) to broaden
the eligibility criteria of the safety valve to include defendants who
do not have: (1) ``more than 4 criminal history points, excluding any
criminal history points resulting from a 1-point offense, as determined
under the sentencing guidelines''; (2) a ``prior 3-point offense, as
determined under the sentencing guidelines''; and (3) a ``prior 2-point
violent offense, as determined under the sentencing guidelines.'' The
Act defines ``violent offense'' as a ``crime of violence,'' as defined
in 18 U.S.C. 16, that is punishable by imprisonment. In addition, the
First Step Act incorporated into section 3553(f) a provision
instructing that ``[i]nformation disclosed by a defendant under this
subsection may not be used to enhance the sentence of the defendant
unless the information relates to a violent offense.''
Following the enactment of the First Step Act, circuit courts have
disagreed about how the word ``and'' connecting subsections (A) through
(C) in section 3553(f)(1) operates. The Fifth, Sixth, Seventh, and
Eighth Circuits have held that section 3553(f)(1) should be read to
exclude a defendant who meets any single disqualifying condition listed
in subsections (A) through (C). See United States v. Palomares, 52
F.4th 640, 642 (5th Cir. 2022) (``To be eligible for safety valve
relief, a defendant must show that she does not have more than 4
criminal history points, does not have a 3-point offense, and does not
have a 2-point violent offense.''); United States v. Haynes, 55 F.4th
1075 (6th Cir. 2022) (same); United States v. Pace, 48 F.4th 741, 756
(7th Cir. 2022) (``[A] defendant who meets any one of subsections (A),
(B), or (C) does not qualify for safety-valve relief.''); United States
v. Pulsifer, 39 F.4th 1018, 1022 (8th Cir. 2022) (``A court will find
that Sec. 3553(f)(1) is satisfied only when the defendant (A) does not
have more than four criminal history points, (B) does not have a prior
three-point offense, and (C) does not have a prior two-point violent
offense.''). Specifically, the Eighth Circuit concluded that the word
``and'' is conjunctive in a ``distributive'' sense rather than in a
``joint'' sense. Thus, the phrase ``does not have'' is distributed
across all three subsections (i.e., should be read as repeated before
each of the three conditions) such that a defendant is ineligible for
safety valve relief if the defendant meets any one of the three
conditions. Pulsifer, 39 F.4th at 1022 (``The distributive reading
therefore gives meaning to each subsection in Sec. 3553(f)(1), and we
conclude that it is the better reading of the statute.''); see also
Palomares, 52 F.4th at 642 (``We agree with the Eighth Circuit that
Congress's use of an em-dash following `does not have' is best
interpreted to `distribute' that phrase to each following
subsection.''); Haynes, 55 F.4th at 1080 (``We agree with the Eighth
Circuit that, of the interpretations on offer here, `[o]nly the
distributive interpretation avoids surplusage.' '').
The Ninth and Eleventh Circuits, in contrast, have held that the
``and'' connecting subparagraphs (A), (B), and (C) of section
3553(f)(1) is ``conjunctive'' and joins together the enumerated
characteristics in those provisions. United States v. Lopez, 998 F.3d
431 (9th Cir. 2021); United States v. Garcon, 54 F.4th 1274 (11th Cir.
2022) (en banc). Accordingly, a defendant ``must have (A) more than
four criminal-history points, (B) a prior three-point offense, and (C)
a prior two-point violent offense, cumulatively,'' to be disqualified
from safety valve relief under section 3553(f). Lopez, 998 F.3d at 433.
Unlike the Fifth, Sixth, and Eighth Circuits, the Ninth and Eleventh
Circuits interpret the word ``and'' to be conjunctive in a ``joint,''
rather than ``distributive,'' sense.
Using fiscal year 2021 data, Commission analysis estimated that of
17,520 drug trafficking offenders, 11,866 offenders meet the non-
criminal history requirements of the safety valve (18 U.S.C.
3553(f)(2)-(5)). Of those 11,866 offenders, 5,768 offenders have no
more than one criminal history point and would be eligible under the
unamended pre-First Step Act criminal history requirement. Under a
disjunctive interpretation of the expanded criminal history provision,
1,987 offenders would become eligible. The remaining 4,111 offenders
would be ineligible. In comparison, under the Ninth Circuit's
conjunctive interpretation of the expanded criminal history provision,
5,778 offenders would become eligible. The remaining 320 offenders
would be ineligible.
Part A of the proposed amendment would implement the provisions of
the First Step Act expanding the applicability of the safety valve
provision by amending Sec. 5C1.2 and its corresponding commentary.
Specifically, it would revise Sec. 5C1.2(a) to reflect the broader
class of defendants who are eligible for safety valve relief under the
Act. Part A of the proposed amendment would also bracket a possible
revision to the minimum offense level that Sec. 5C1.2(b) requires for
certain offenders. Revision of this provision, which implements a
directive to the Commission in section 80001(b) of the Violent Crime
Control and Law Enforcement Act of 1994, Public Law 103-222 (Sept. 13,
1994), may be appropriate given the expanded class of defendants who
would qualify for safety
[[Page 7187]]
valve relief under the proposed revisions to Sec. 5C1.2(a).
In addition, Part A of the proposed amendment would make changes to
the Commentary to Sec. 5C1.2. First, it would revise Application Note
1 by deleting the current language and adding the statutory definition
for the term ``violent offense.'' Second, Part A of the proposed
amendment brackets the possibility of adding a new application note
stating that ``[i]n determining whether the defendant meets the
criteria in subsection (a)(1), refer to Sec. 4A1.1 (Criminal History
Category) and Sec. 4A1.2 (Definitions and Instructions for Computing
Criminal History), read together, before application of subsection (b)
of Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History
Category).'' Third, Part A of the proposed amendment would also revise
Application Note 7, to implement the new statutory provision stating
that information disclosed by a defendant pursuant to 18 U.S.C. 3553(f)
may not be used to enhance the defendant's sentence unless the
information relates to a violent offense. Finally, it would make
additional technical changes to the rest of the Commentary by
renumbering and inserting headings at the beginning of certain notes.
Part A of the proposed amendment would also make conforming changes
to Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History
Category (Policy Statement)), which makes a specific reference to the
number of criminal history points allowed by Sec. 5C1.2(a)(1).
Finally, Part A of the proposed amendment would also make changes
to Sec. 2D1.1 and Sec. 2D1.11, as the 2-level reductions in both
guidelines are tethered to the eligibility criteria of paragraphs (1)-
(5) of Sec. 5C1.2(a). It provides two options for amending Sec.
2D1.1(b)(18) and Sec. 2D1.11(b)(6).
Option 1 would not make any substantive changes to Sec.
2D1.1(b)(18) and Sec. 2D1.11(b)(6), allowing their 2-level reductions
to automatically apply to any defendant who meets the revised criteria
of Sec. 5C1.2. Because Sec. 5C1.2(a)(1) would closely track the
language in 18 U.S.C. 3553(f)(1), as amended by the First Step Act, the
``and'' used to set forth the criminal history criteria in Sec. 5C1.2
might be read by some courts as disjunctive (e.g., the courts in the
Fifth, Sixth, Seventh, and Eighth Circuits) and by other courts as
conjunctive (e.g., the courts in the Ninth and Eleventh Circuits).
Option 1 would not resolve the circuit conflict for purposes of Sec.
2D1.1(b)(18) and Sec. 2D1.11(b)(6).
Option 2 would amend Sec. 2D1.1(b)(18) and Sec. 2D1.11(b)(6) to
provide that their 2-level reductions apply to all defendants who meet
the criteria in Sec. 5C1.2(a)(2)-(5). It would also incorporate into
those provisions the same criminal history criteria from revised Sec.
5C1.2(a)(1) but set forth the criteria disjunctively, consistent with
the approach of the Fifth, Sixth, Seventh, and Eighth Circuits. As a
result, a defendant would not be eligible for the 2-level reduction in
Sec. 2D1.1(b)(18) or Sec. 2D1.11(b)(6) if the defendant presents any
of the disqualifying conditions relating to criminal history.
Both options also would make changes to the Commentary to
Sec. Sec. 2D1.1 and 2D1.11 that correspond to the applicable
provisions of the revised Commentary to Sec. 5C1.2.
Part A of the proposed amendment also includes issues for comment.
(B) Recidivist Penalties for Drug Offenders
The most common drug offenses that carry mandatory minimum
penalties are set forth in 21 U.S.C. 841 and 960. Under both
provisions, the mandatory minimum penalties are tied to the quantity
and type of controlled substance involved in an offense. Enhanced
mandatory minimum penalties are set forth in 21 U.S.C. 841(b) and
960(b) for defendants whose instant offense resulted in death or
serious bodily injury, or who have prior convictions for certain
specified offenses. Greater enhanced mandatory minimum penalties are
provided for those defendants whose instant offense resulted in death
or serious bodily injury and who have a qualifying prior conviction.
Prior to the First Step Act, all of the recidivist penalty
provisions within sections 841(b) and 960(b) provided for an enhanced
mandatory minimum penalty if a defendant had one or more convictions
for a prior ``felony drug offense,'' which is defined in 21 U.S.C.
802(44) as ``an offense that is punishable by imprisonment for more
than one year under any law of the United States or of a State or
foreign country that prohibits or restricts conduct relating to
narcotic drugs, marihuana, anabolic steroids, or depressant or
stimulant substances.'' Section 401 of the Act both narrowed and
expanded the type of prior offenses that trigger enhanced mandatory
minimum penalties under 21 U.S.C. 841(b)(1)(A), 841(b)(1)(B),
960(b)(1), and 960(b)(2). The Act narrowed the triggering prior
offenses for these statutory provisions by replacing the term ``felony
drug offense'' with ``serious drug felony.'' The term ``serious drug
felony'' is defined in 21 U.S.C. 802(57) as ``an offense described in
[18 U.S.C. 924(e)(2)] for which--(A) the offender served a term of
imprisonment of more than 12 months; and (B) the offender's release
from any term of imprisonment was within 15 years of the commencement
of the instant offense.'' The Act also expanded the class of triggering
offenses for the same statutory provisions by adding ``serious violent
felony.'' The term ``serious violent felony'' is defined in 21 U.S.C.
802(58) as ``(A) an offense described in [18 U.S.C. 3559(c)(2)] for
which the offender served a term of imprisonment of more than 12
months; and (B) any offense that would be a felony violation of [18
U.S.C. 113], if the offense were committed in the special maritime and
territorial jurisdiction of the United States, for which the offender
served a term of imprisonment of more than 12 months.'' The First Step
Act did not amend 21 U.S.C. 841(b)(1)(C), 841(b)(1)(E), 960(b)(3), or
960(b)(5), which still provide for enhanced mandatory minimum penalties
if a defendant was convicted of a prior ``felony drug offense.''
Part B of the proposed amendment would revise subsection (a) of
Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy) to make the guideline's base offense
levels consistent with the First Step Act's changes to the type of
prior offenses that trigger enhanced mandatory minimum penalties.
Specifically, the proposed amendment would revise subsections (a)(1)
and (a)(3) to replace the term ``similar offense'' used in these
guideline provisions with the appropriate terms set forth in the
relevant statutory provisions, as amended by the First Step Act.
First, Part B of the proposed amendment would amend Sec.
2D1.1(a)(1) and split it into two subparagraphs. Subparagraph (A) would
provide for a base offense level of 43 for a defendant convicted under
21 U.S.C. 841(b)(1)(A) or (b)(1)(B), or 21 U.S.C. 960(b)(1) or (b)(2),
where death or serious bodily injury resulted from the use of the
substance and the defendant committed the offense after one or more
prior convictions for a ``serious drug felony or serious violent
felony.'' Subparagraph (B) would provide for a base offense level of 43
for a defendant convicted under 21 U.S.C. 841(b)(1)(C) or 21 U.S.C.
960(b)(3) where death or serious bodily injury resulted from the use of
the substance and the defendant committed the offense after one or more
prior convictions for a ``felony drug offense.''
[[Page 7188]]
Second, Part B of the proposed amendment would amend Sec.
2D1.1(a)(3), which provides for a base offense level of 30 for a
defendant convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5)
where death or serious bodily injury resulted from the use of the
substance and the defendant committed the offense after one or more
prior convictions for a ``similar offense.'' Specifically, it would
replace the term ``similar offense'' with ``felony drug offense,'' as
provided in the relevant statutory provisions.
(A) Safety Valve
Proposed Amendment
Section 5C1.2(a) is amended--
by inserting after ``Sec. 963,'' the following: ``or 46 U.S.C.
70503 or Sec. 70506,'';
by striking ``set forth below'' and inserting ``as follows'';
by striking paragraph (1) as follows:
``(1) the defendant does not have more than 1 criminal history
point, as determined under the sentencing guidelines before application
of subsection (b) of Sec. 4A1.3 (Departures Based on Inadequacy of
Criminal History Category);'';
and by inserting the following new paragraph (1):
``(1) the defendant does not have--
(A) more than 4 criminal history points, excluding any criminal
history points resulting from a 1-point offense, as determined under
the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing
guidelines; and
(C) a prior 2-point violent offense, as determined under the
sentencing guidelines;''.
[Section 5C1.2(b) is amended by striking ``the offense level
applicable from Chapters Two (Offense Conduct) and Three (Adjustments)
shall not be less than 17'' and inserting ``the applicable guideline
range shall not be less than 24 to 30 months of imprisonment''.]
The Commentary to Sec. 5C1.2 captioned ``Application Notes'' is
amended--
by striking Notes 1, 2, and 3 as follows:
``1. `More than 1 criminal history point, as determined under the
sentencing guidelines,' as used in subsection (a)(1), means more than
one criminal history point as determined under Sec. 4A1.1 (Criminal
History Category) before application of subsection (b) of Sec. 4A1.3
(Departures Based on Inadequacy of Criminal History Category).
2. `Dangerous weapon' and `firearm,' as used in subsection (a)(2),
and `serious bodily injury,' as used in subsection (a)(3), are defined
in the Commentary to Sec. 1B1.1 (Application Instructions).
3. `Offense,' as used in subsection (a)(2)-(4), and `offense or
offenses that were part of the same course of conduct or of a common
scheme or plan,' as used in subsection (a)(5), mean the offense of
conviction and all relevant conduct.'';
and inserting the following new Note 1 [and Note 2]:
``1. Definitions.--
(A) The term `violent offense' means a `crime of violence,' as
defined in 18 U.S.C. 16, that is punishable by imprisonment.
(B) `Dangerous weapon' and `firearm,' as used in subsection (a)(2),
and `serious bodily injury,' as used in subsection (a)(3), are defined
in the Commentary to Sec. 1B1.1 (Application Instructions).
(C) `Offense,' as used in subsection (a)(2)-(4), and `offense or
offenses that were part of the same course of conduct or of a common
scheme or plan,' as used in subsection (a)(5), mean the offense of
conviction and all relevant conduct.
[2. Application of subsection (a)(1).--In determining whether the
defendant meets the criteria in subsection (a)(1), refer to Sec. 4A1.1
(Criminal History Category) and Sec. 4A1.2 (Definitions and
Instructions for Computing Criminal History), read together, before
application of subsection (b) of Sec. 4A1.3 (Departures Based on
Inadequacy of Criminal History Category).]'';
by redesignating Note 4 as Note 3;
in Note 3 (as so redesignated) by inserting at the beginning the
following new heading: ``Application of subsection (a)(2).--'';
by striking Notes 5, 6, and 7 as follows:
``5. `Organizer, leader, manager, or supervisor of others in the
offense, as determined under the sentencing guidelines,' as used in
subsection (a)(4), means a defendant who receives an adjustment for an
aggravating role under Sec. 3B1.1 (Aggravating Role).
6. `Engaged in a continuing criminal enterprise,' as used in
subsection (a)(4), is defined in 21 U.S.C. 848(c). As a practical
matter, it should not be necessary to apply this prong of subsection
(a)(4) because (i) this section does not apply to a conviction under 21
U.S.C. 848, and (ii) any defendant who `engaged in a continuing
criminal enterprise' but is convicted of an offense to which this
section applies will be an `organizer, leader, manager, or supervisor
of others in the offense.'
7. Information disclosed by the defendant with respect to
subsection (a)(5) may be considered in determining the applicable
guideline range, except where the use of such information is restricted
under the provisions of Sec. 1B1.8 (Use of Certain Information). That
is, subsection (a)(5) does not provide an independent basis for
restricting the use of information disclosed by the defendant.'';
by inserting the following new Notes 4 and 5:
``4. Application of Subsection (a)(4).--
(A) `Organizer, leader, manager, or supervisor of others in the
offense'.--The first prong of subsection (a)(4) requires that the
defendant was not subject to an adjustment for an aggravating role
under Sec. 3B1.1 (Aggravating Role).
(B) `Engaged in a continuing criminal enterprise'.--`Engaged in a
continuing criminal enterprise,' as used in subsection (a)(4), is
defined in 21 U.S.C. 848(c). As a practical matter, it should not be
necessary to apply this prong of subsection (a)(4) because (i) this
section does not apply to a conviction under 21 U.S.C. 848, and (ii)
any defendant who `engaged in a continuing criminal enterprise' but is
convicted of an offense to which this section applies will be an
`organizer, leader, manager, or supervisor of others in the offense.'
5. Use of Information Disclosed under Subsection (a).--Information
disclosed by a defendant under subsection (a) may not be used to
enhance the sentence of the defendant unless the information relates to
a violent offense, as defined in Application Note 1(A).'';
by redesignating Notes 8 and 9 as Notes 6 and 7, respectively;
in Note 6 (as so redesignated) by inserting at the beginning the
following new heading: ``Government's Opportunity to Make
Recommendation.--'';
and in Note 7 (as so redesignated) by inserting at the beginning
the following new heading: ``Exemption from Otherwise Applicable
Statutory Minimum Sentences.--''.
The Commentary to Sec. 5C1.2 captioned ``Background'' is amended
by inserting after ``Violent Crime Control and Law Enforcement Act of
1994'' the following: ``and subsequently amended''.
Section 4A1.3(b)(3)(B) is amended--
in the heading by striking ``to Category I'';
by striking ``whose criminal history category is Category I after
receipt of'' and inserting ``who receives'';
by striking ``criterion'' and inserting ``criminal history
requirement'';
and by striking ``if, before receipt of the downward departure, the
defendant had more than one criminal history point under Sec. 4A1.1
(Criminal History Category)'' and inserting ``if the defendant did not
otherwise meet such
[[Page 7189]]
requirement before receipt of the downward departure''.
[Option 1:
Section 2D1.1(b)(18) is amended by striking ``subdivisions'' and
inserting ``paragraphs''.
[The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 21 by striking ``a minimum offense level of level 17''
and inserting ``that the applicable guideline range shall not be less
than 24 to 30 months of imprisonment''.]
Section 2D1.11(b)(6) is amended by striking ``subdivisions'' and
inserting ``paragraphs''.
[The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended in Note 7 by striking ``a minimum offense level of level 17''
and inserting ``an applicable guideline range of not less than 24 to 30
months of imprisonment''.]]
[Option 2:
Section 2D1.1(b)(18) is amended by striking the following:
``If the defendant meets the criteria set forth in subdivisions
(1)-(5) of subsection (a) of Sec. 5C1.2 (Limitation on Applicability
of Statutory Minimum Sentences in Certain Cases), decrease by 2
levels.'',
and inserting the following:
``If the defendant--
(A) meets the criteria set forth in paragraphs (2)-(5) of
subsection (a) of Sec. 5C1.2 (Limitation on Applicability of Statutory
Minimum Sentences in Certain Cases); and
(B) does not have any of the following:
(i) more than 4 criminal history points, excluding any criminal
history points resulting from a 1-point offense;
(ii) a prior 3-point offense; or
(iii) a prior 2-point violent offense;
as determined under Sec. 4A1.1 (Criminal History Category) and
Sec. 4A1.2 (Definitions and Instructions for Computing Criminal
History), read together, before application of subsection (b) of Sec.
4A1.3 (Departures Based on Inadequacy of Criminal History Category);
decrease by 2 levels.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 21 by striking the following:
``Applicability of Subsection (b)(18).--The applicability of
subsection (b)(18) shall be determined without regard to whether the
defendant was convicted of an offense that subjects the defendant to a
mandatory minimum term of imprisonment. Section Sec. 5C1.2(b), which
provides a minimum offense level of level 17, is not pertinent to the
determination of whether subsection (b)(18) applies.'',
and inserting the following:
``Application of Subsection (b)(18).--
(A) General Applicability.--The applicability of subsection (b)(18)
shall be determined without regard to whether the defendant was
convicted of an offense that subjects the defendant to a mandatory
minimum term of imprisonment. Section Sec. 5C1.2(b), which provides [a
minimum offense level of level 17][that the applicable guideline range
shall not be less than 24 to 30 months of imprisonment], is not
pertinent to the determination of whether subsection (b)(18) applies.
(B) Definition of Violent Offense.--The term `violent offense'
means a `crime of violence,' as defined in 18 U.S.C. 16, that is
punishable by imprisonment.''.
Section 2D1.11(b)(6) is amended by striking the following:
``If the defendant meets the criteria set forth in subdivisions
(1)-(5) of subsection (a) of Sec. 5C1.2 (Limitation on Applicability
of Statutory Minimum Sentences in Certain Cases), decrease by 2
levels.'',
and inserting the following:
``If the defendant--
(A) meets the criteria set forth in paragraphs (2)-(5) of
subsection (a) of Sec. 5C1.2 (Limitation on Applicability of Statutory
Minimum Sentences in Certain Cases); and
(B) does not have any of the following:
(i) more than 4 criminal history points, excluding any criminal
history points resulting from a 1-point offense;
(ii) a prior 3-point offense; or
(iii) a prior 2-point violent offense;
as determined under Sec. 4A1.1 (Criminal History Category) and
Sec. 4A1.2 (Definitions and Instructions for Computing Criminal
History), read together, before application of subsection (b) of Sec.
4A1.3 (Departures Based on Inadequacy of Criminal History Category);
decrease by 2 levels.''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended in Note 7 by striking the following:
``Applicability of Subsection (b)(6).--The applicability of
subsection (b)(6) shall be determined without regard to the offense of
conviction. If subsection (b)(6) applies, Sec. 5C1.2(b) does not
apply. See Sec. 5C1.2(b)(2)(requiring a minimum offense level of level
17 if the `statutorily required minimum sentence is at least five
years').'',
and inserting the following:
``Application of Subsection (b)(6).--
(A) General Applicability.--The applicability of subsection (b)(6)
shall be determined without regard to the offense of conviction. If
subsection (b)(6) applies, Sec. 5C1.2(b) does not apply. See Sec.
5C1.2(b)(2) (requiring [a minimum offense level of level 17][an
applicable guideline range of not less than 24 to 30 months of
imprisonment] if the `statutorily required minimum sentence is at least
five years').
(B) Definition of Violent Offense.--The term `violent offense'
means a `crime of violence,' as defined in 18 U.S.C. 16, that is
punishable by imprisonment.''.]
Issues for Comment
1. As described above, Part A of the proposed amendment would make
changes to Sec. 5C1.2 (Limitation on Applicability of Statutory
Minimum Sentences in Certain Cases) and its corresponding commentary to
implement the First Step Act of 2018, Public Law 115-391 (Dec. 21,
2018). The Commission seeks general comment on whether the Commission
should make any different or additional changes to implement the Act.
2. Section 3553(f)(1) of title 18, United States Code, sets forth
the criminal history criteria for the safety valve in subparagraphs (A)
through (C). Each subparagraph sets forth the specific criminal history
condition followed by the phrase ``as determined under the sentencing
guidelines.'' Circuit courts have reached different conclusions about
what constitutes a ``1-point,'' ``2-point,'' or ``3-point'' offense,
and also seem to disagree on whether such interpretation arises from
the statute itself or from proper guideline operation. Compare, e.g.,
United States v. Garcon, 54 F.4th 1274, 1280-84 (11th Cir. 2022) (en
banc) (concluding that criminal history events are considered
differently for purposes of subsections 3553(f)(1)(B) and (C) than
subsection (A), and articulating that interpretation as primarily
stemming from the statute), with United States v. Haynes, 55 F.4th
1075, 1080 (6th Cir. 2022) (``[Section] 3553(f)(1) refers only to
`prior 3-point' and `prior 2-point violent' offenses `as determined
under the sentencing guidelines'--which means all the Guidelines,
including Sec. 4A1.2(e).''). The Commission seeks comment on whether
it should provide guidance on what constitutes a ``1-point,'' ``2-
point,'' or ``3-point'' offense, ``as determined under the sentencing
guidelines,'' for purposes of Sec. 5C1.2.
3. Part A of the proposed amendment provides two options for
amending subsection (b)(18) of Sec. 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including Possession with Intent
to Commit These Offenses); Attempt or Conspiracy) and subsection
[[Page 7190]]
(b)(6) of Sec. 2D1.11 (Unlawfully Distributing, Importing, Exporting
or Possessing a Listed Chemical; Attempt or Conspiracy) in light of the
proposed revisions to Sec. 5C1.2(a), which reflect the changes to 18
U.S.C. 3553(f) enacted by the First Step Act.
Option 1 would leave the text of Sec. 2D1.1(b)(18) and Sec.
2D1.11(b)(6) unchanged, so that their offense-level reductions would
apply to all defendants who meet the criteria in revised Sec.
5C1.2(a)(1)-(5). As discussed above, a circuit conflict has arisen as
to whether the ``and'' connecting the subparagraphs that set forth the
criminal history criteria in 18 U.S.C. 3553(f)(1) operates
disjunctively or conjunctively.
Option 2 of the proposed amendment would amend Sec. 2D1.1(b)(18)
and Sec. 2D1.11(b)(6) to provide that their 2-level reductions would
apply to all defendants who meet the criteria in Sec. 5C1.2(a)(2)-(5).
It would also incorporate into those provisions the same criminal
history criteria from revised Sec. 5C1.2(a)(1) but set forth the
criteria disjunctively, so that the reductions would be available only
to defendants who do not present any of the listed disqualifying
conditions.
The Commission seeks comment on each of these options. Which
option, if any, is appropriate? In the alternative, should the
Commission incorporate into Sec. 2D1.1(b)(18) and Sec. 2D1.11(b)(6)
the same criminal history criteria from revised Sec. 5C1.2(a)(1) but
set forth the criteria conjunctively, so that defendants must present
all of the listed disqualifying conditions to be ineligible for their
reductions? Should the Commission consider an altogether different
approach? If so, what approach should the Commission provide and why?
(B) Recidivist Penalties for Drug Offenders
Proposed Amendment
Section 2D1.1(a)(1) is amended by striking the following:
``43, if the defendant is convicted under 21 U.S.C. 841(b)(1)(A),
(b)(1)(B), or (b)(1)(C), or 21 U.S.C. 960(b)(1), (b)(2), or (b)(3), and
the offense of conviction establishes that death or serious bodily
injury resulted from the use of the substance and that the defendant
com-mitted the offense after one or more prior convictions for a
similar offense; or'',
and inserting the following:
``43, if--
(A) the defendant is convicted under 21 U.S.C. 841(b)(1)(A) or
(b)(1)(B), or 21 U.S.C. 960(b)(1) or (b)(2), and the offense of
conviction establishes that death or serious bodily injury resulted
from the use of the substance and that the defendant committed the
offense after one or more prior convictions for a serious drug felony
or serious violent felony; or
(B) the defendant is convicted under 21 U.S.C. 841(b)(1)(C) or 21
U.S.C. 960(b)(3) and the offense of conviction establishes that death
or serious bodily injury resulted from the use of the substance and
that the defendant committed the offense after one or more prior
convictions for a felony drug offense; or''.
Section 2D1.1(a)(3) is amended by striking ``similar offense'' and
inserting ``felony drug offense''.
The Commentary to Sec. 2D1.1 caption ``Application Notes'' is
amended--
by striking Note 2 as follows:
``2. `Plant'.--For purposes of the guidelines, a `plant' is an
organism having leaves and a readily observable root formation (e.g., a
marihuana cutting having roots, a rootball, or root hairs is a
marihuana plant).'';
by redesignating Note 1 as Note 2;
and by inserting at the beginning the following new Note 1:
``1. Definitions.--
For purposes of the guidelines, a `plant' is an organism having
leaves and a readily observable root formation (e.g., a marihuana
cutting having roots, a rootball, or root hairs is a marihuana plant).
For purposes of subsection (a), `serious drug felony,' `serious
violent felony,' and `felony drug offense' have the meaning given those
terms in 21 U.S.C. 802.''.
3. Firearms Offenses
Synopsis of Proposed Amendment: This proposed amendment is a result
of the Commission's consideration of possible amendments to Sec. 2K2.1
(Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition)
to (A) implement the Bipartisan Safer Communities Act (Pub. L. 117-
159); and (B) make any other changes that may be warranted to
appropriately address firearms offenses. See U.S. Sent'g Comm'n,
``Notice of Final Priorities,'' 87 FR 67756 (Nov. 9, 2022). The
proposed amendment contains three parts (Parts A through C). The
Commission is considering whether to promulgate any or all these parts,
as they are not mutually exclusive.
Part A of the proposed amendment would amend Sec. 2K2.1 to respond
to the Bipartisan Safer Communities Act. Two options are presented.
Issues for comment are also provided.
Part B of the proposed amendment addresses concerns expressed by
some commenters about firearms that are not marked by a serial number
(i.e., ``ghost guns''). An issue for comment is also provided.
Part C of the proposed amendment provides issues for comment on
possible further revisions to Sec. 2K2.1.
(A) Bipartisan Safer Communities Act
Synopsis of Proposed Amendment: The Bipartisan Safer Communities
Act (the ``Act''), among other things, created two new firearms
offenses, amended definitions, increased penalties for certain firearms
offenses, and contained a directive to the Commission relating to straw
purchases and trafficking of firearms offenses.
Specifically, the Act created two new offenses at 18 U.S.C. 932 and
933. Section 932 prohibits knowingly purchasing, or conspiring to
purchase, any firearm on behalf of, or at the request or demand of,
another person with knowledge or reasonable cause to believe that such
other person: (1) meets at least one of the criteria set forth in 18
U.S.C. 922(d); (2) intends to use, carry, possess, sell, or otherwise
dispose of the firearm in furtherance of a felony, a Federal crime of
terrorism, or a drug trafficking crime; or (3) intends to sell or
otherwise dispose of the firearm to a person who meets either of the
previous criteria. See 18 U.S.C. 932(b). Section 933 prohibits: (1)
shipping, transporting, transferring, causing to be transported, or
otherwise disposing of, any firearm to another person with knowledge or
reasonable cause to believe that the use, carrying, or possession of a
firearm by the recipient would constitute a felony; (2) receiving from
another person any firearm with knowledge or reasonable cause to
believe that such receipt would constitute a felony; or (3) attempt or
conspiracy to commit either of the acts described before. See 18 U.S.C.
933(a).
Both new offenses carry a statutory maximum term of imprisonment of
15 years. The statutory maximum term of imprisonment for offenses under
section 932 increases to 25 years if the offense was committed with
knowledge or reasonable cause to believe that any firearm involved will
be used to commit a felony, a Federal crime of terrorism, or a drug
trafficking crime. See 18 U.S.C. 932(c)(2).
In addition, the Act increased the statutory maximum term of
imprisonment for the offenses under 18 U.S.C. 922(d), 922(g), 924(h),
and 924(k) from ten to 15 years. The Act also made changes to the
elements of some of these offenses. First, the Act expanded the scope
of section 922(d) by adding two
[[Page 7191]]
additional categories of persons to whom it is unlawful to sell or
otherwise dispose of any firearm or ammunition: (1) persons who intend
to sell or otherwise dispose of the firearm or ammunition in
furtherance of a felony, a Federal crime of terrorism, or a drug
trafficking offense; and (2) persons who intend to sell or otherwise
dispose of the firearm or ammunition to a person to whom sale or
disposition is prohibited under the other categories in section 922(d).
See 18 U.S.C. 922(d)(10)-(11).
Second, the Act amended section 924(h). Prior to the Act, section
924(h) prohibited knowingly transferring a firearm with knowledge that
such firearm will be used to commit a crime of violence or drug
trafficking crime. As amended by the Act, section 924(h) prohibits
knowingly receiving or transferring a firearm or ammunition, or
attempting or conspiring to do so, with knowledge or reasonable cause
to believe that such firearm or ammunition will be used to commit a
felony, a Federal crime of terrorism, a drug trafficking crime, or a
crime under the Arms Export Control Act (22 U.S.C. 2751 et seq.), the
Export Control Reform Act of 2018 (50 U.S.C. 4801 et seq.), the
International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.),
or the Foreign Narcotics Kingpin Designation Act (21 U.S.C. 1901 et
seq.). See 18 U.S.C. 924(h).
Third, the Act also amended section 924(k). Prior to the Act,
section 924(k) prohibited smuggling or knowingly bringing into the
United States a firearm, or attempting to do so, with intent to engage
in or to promote conduct that: (1) is punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances
Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title
46, United States Code; (2) violates any law of a State relating to any
controlled substance; or (3) constitutes a crime of violence. Section
924(k), as amended by the Act, prohibits smuggling or knowingly
bringing into or out of the United States a firearm or ammunition, or
attempting or conspiring to do so, with intent to engage in or to
promote conduct that: (1) is punishable under the Controlled Substances
Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title
46, United States Code; or (2) constitutes a felony, a Federal crime of
terrorism, or a drug trafficking crime. See 18 U.S.C. 924(k).
The Act also expanded the definition of ``misdemeanor crime of
domestic violence'' at 18 U.S.C. 921(a)(33) to include offenses against
a person in ``a current or recent former dating relationship.'' See 18
U.S.C. 921(a)(33)(A). In addition, the Act added a new provision to
section 921(a)(33) indicating that a person is not disqualified from
shipping, transporting, possessing, receiving, or purchasing a firearm
under chapter 44 of title 18, United States Code, by reason of a
conviction for a misdemeanor crime of domestic violence against an
individual in a dating relationship if certain criteria are met. See 18
U.S.C. 921(a)(33)(C).
Finally, the Act includes a directive requiring the Commission,
pursuant to its authority under 28 U.S.C. 994, to review and amend its
guidelines and policy statements to ensure that persons convicted of an
offense under section 932 or 933 of title 18, United States Code, and
other offenses applicable to the straw purchases and trafficking of
firearms are subject to increased penalties in comparison to those
currently provided by the guidelines and policy statements for such
straw purchasing and trafficking of firearms offenses. In its review,
the Commission shall consider, in particular, an appropriate amendment
to reflect the intent of Congress that straw purchasers without
significant criminal histories receive sentences that are sufficient to
deter participation in such activities and reflect the defendant's role
and culpability, and any coercion, domestic violence survivor history,
or other mitigating factors. The Commission shall also review and amend
its guidelines and policy statements to reflect the intent of Congress
that a person convicted of an offense under section 932 or 933 of title
18, United States Code, who is affiliated with a gang, cartel,
organized crime ring, or other such enterprise should be subject to
higher penalties than an otherwise unaffiliated individual.
Public Law 117-159, 12004(a)(5) (2022).
New Offenses and Increased Penalties for Straw Purchasing and Firearms
Trafficking Offenses
Part A of the proposed amendment implements part of the directive
of the Bipartisan Safer Communities Act by addressing the new offenses
at 18 U.S.C. 932 and 933 and increasing penalties for other offenses
applicable to straw purchases and trafficking of firearms. First, Part
A of the proposed amendment would amend Appendix A (Statutory Index) to
reference the new offenses at 18 U.S.C. 932 and 933 to Sec. 2K2.1
(Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition).
Offenses involving firearms trafficking and straw purchases are
generally referenced to this guideline.
Second, Part A of the proposed amendment would amend Sec. 2K2.1 to
address the new offenses and increase penalties for offenses applicable
to straw purchases and trafficking of firearms, as required by the
directive. Two options are presented.
Option 1 addresses the new offenses at 18 U.S.C. 932 and 933 and
increases penalties for offenses applicable to straw purchases and
trafficking of firearms. It would accomplish this by adding references
to the new offenses in Sec. 2K2.1(a) and revising the firearms
trafficking enhancement at Sec. 2K2.1(b)(5) to apply to straw purchase
and other trafficking offenses.
Specifically, Option 1 would add references to 18 U.S.C. 932 and
933 in subsections (a)(4)(B)(ii)(II) and (a)(6)(B). In addition, Option
1 would revise the 4-level enhancement for firearms trafficking at
Sec. 2K2.1(b)(5) to make it a tiered-enhancement applicable to
defendants who transferred or intended to transfer firearms or
ammunition to certain individuals, which would provide the requisite
increase for a defendant convicted of violating 18 U.S.C. 922(d), 932,
or 933(a)(1), as well as other offenses, including violations of 18
U.S.C. 922(a)(6) or 924(a)(1)(A) committed with knowledge, intent, or
reason to believe that the offense would result in the transfer of a
firearm or ammunition to a prohibited person. The revised enhancement
would also apply to defendants convicted under 18 U.S.C. 933(a)(2) or
(a)(3). Specifically, a [1][2]-level enhancement would apply if the
defendant was convicted under 18 U.S.C. 933(a)(2) or (a)(3). A [1][2]-
level increase would apply if the defendant (i) transported,
transferred, sold, or otherwise disposed of, or purchased or received
with intent to transport, transfer, sell, or otherwise dispose of, a
firearm or any ammunition knowing or having reason to believe that such
conduct would result in the receipt of the firearm or ammunition by an
individual who (I) was a prohibited person; or (II) intended to use or
dispose of the firearm or ammunition unlawfully; or (ii) attempted or
conspired to commit the conduct described in clause (i). A [5][6]-level
enhancement would apply if the defendant (i) transported, transferred,
sold, or otherwise disposed of, or purchased or received with intent to
transport, transfer, sell, or otherwise dispose of, two or more
firearms knowing or having reason to believe that such conduct would
result in the receipt
[[Page 7192]]
of the firearms by an individual who (I) had a prior conviction for a
crime of violence, controlled substance offense, or misdemeanor crime
of domestic violence; (II) was under a criminal justice sentence; or
(III) intended to use or dispose of the firearms unlawfully; or (ii)
attempted or conspired to commit the conduct described in clause (i).
In addition, Option 1 would amend Application Note 13 to conform
its content with the revised version of Sec. 2K2.1(b)(5). It would
also include a new provision in response to the changes that the Act
made to section 921(a)(33). Specifically, the new provision states that
new subsection (b)(5)(C) shall not apply based upon the receipt or
intended receipt of the firearms by an individual with a prior
conviction for a misdemeanor crime of domestic violence against a
person in a dating relationship if, at the time of the instant offense,
such individual [had no prior conviction for a crime of violence or
controlled substance offense and had not more than one conviction of a
misdemeanor crime of domestic violence against a person in a dating
relationship, but 5 years had elapsed from the later of the judgment of
conviction or the completion of the individual's custodial or
supervisory sentence for such an offense and the individual had not
subsequently been convicted of another such offense; a misdemeanor
under federal, state, tribal, or local law which has, as an element,
the use or attempted use of physical force, or the threatened use of a
deadly weapon; or any other offense covered 18 U.S.C. 922(g)][met the
criteria set forth in the proviso of 18 U.S.C. 921(a)(33)(C)]. In
addition, Option 1 would amend the departure provision in Application
Note 13 to provide that 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 [or an unusually large amount of ammunition], an
upward departure may be warranted.
Option 2 would restructure the base offense level provisions at
Sec. 2K2.1(a) by providing references to specific statutes with
statutory maximum terms of imprisonment of 15 years or more. Option 2
identifies the ``other offenses applicable'' to trafficking and straw
purchasing as those for which Congress increased penalties in the Act.
As mentioned, the Act increased the maximum term of imprisonment from
ten to 15 years for four offenses: 18 U.S.C. 922(d) (transferring a
firearm or ammunition to a prohibited person); 922(g) (possession,
receipt, or transfer of a firearm or ammunition by a prohibited
person); 924(h) (transferring a firearm or ammunition to commit a
felony); and 924(k) (smuggling a firearm or ammunition to commit a
felony). The 15-year statutory maximum for these four offenses is the
same as the new section 932 (without aggravating circumstances) and
section 933 offenses. Three of the offenses with the amended statutory
penalties (sections 922(g), 922(d), and 924(h)) share core elements
with the new straw purchase (section 932) and trafficking (section 933)
statutes: the transfer of a firearm to a felon or knowing it would be
used to commit a felony; and the receipt of a firearm by a felon or
knowing it would be used to commit a felony. The third (section 924(k))
similarly concerns itself with the intent to engage in or promote a
further felony (after smuggling a firearm or ammunition into or out of
the United States). Because the penalties and elements of these four
offenses are similar to those of the new offenses, and they were
modified by the same Act, Option 2 applies the increase to defendants
convicted of those four offenses in addition to defendants convicted
under 18 U.S.C. 932 and 933.
First, Option 2 would increase by [1][2] levels the base offense
levels at subsections (a)(1) through (a)(3). Second, Option 2 would add
a new provision at subsection (a)(4) that sets forth a base offense
level of [21][22] if (A) the defendant committed any part of the
instant offense subsequent to sustaining one felony conviction of
either a crime of violence or a controlled substance offense; or (B)
(i) the defendant is convicted under 18 U.S.C. 922(d), 922(g), 924(h),
924(k), 932, or 933; and (ii) the offense involved a (I) semiautomatic
firearm that is capable of accepting a large capacity magazine; or (II)
firearm that is described in 26 U.S.C. 5845(a). Third, Option 2 would
delete current subsection (a)(4)(A) and make conforming changes to
current subsection (a)(4)(B). Fourth, Option 2 would add a new
provision at Sec. 2K2.1(a)(7) that would set forth a new base offense
level of [15][16] if the defendant was convicted under 18 U.S.C.
922(d), 922(g), 924(h), 924(k), 932, or 933. Fifth, Option 2 would
delete current subsection (a)(6)(B). Sixth, Option 2 would amend the
provision that follows Sec. 2K2.1(b)(4) containing a cumulative impact
``cap,'' to increase such limit from level 29 to level [30][31].
Finally, Option 2 would add a new [1][2]-level reduction at Sec.
2K1.1(b)(9) applicable if (A) the base offense level is determined
under new subsection (a)(7); (B) none of the enhancements in subsection
(b) apply; and (C) the offense of conviction established only the
possession or receipt of firearms or ammunition.
Option 2 would also amend current Application Note 13(B) in
response to the changes that the Act made to section 921(a)(33). The
note currently provides that ``misdemeanor crime of violence'' has the
meaning given that term in 18 U.S.C. 921(a)(33)(A). Option 2 would
amend Application Note 13(B) to expressly provide that an individual
shall not be considered an ``individual whose possession or receipt of
the firearm would be unlawful'' [if, at the time of the instant
offense, the individual was not otherwise covered by such definition
and has not more than one conviction of a misdemeanor crime of domestic
violence against a person in a dating relationship, but 5 years had
elapsed from the later of the judgment of conviction or the completion
of the individual's custodial or supervisory sentence for such an
offense and the individual had not subsequently been convicted of:
another such offense; a misdemeanor under federal, state, tribal, or
local law which has, as an element, the use or attempted use of
physical force, or the threatened use of a deadly weapon; or any other
offense covered by the definition of ``individual whose possession or
receipt of the firearm would be unlawful''][based upon a conviction of
a misdemeanor crime of domestic violence against a person in a dating
relationship, if the individual met the criteria set forth in the
proviso of 18 U.S.C. 921(a)(33)(C) at the time of the instant offense].
``Straw Purchasers'' With Mitigating Factors
Part A of the proposed amendment also addresses the part of the
directive that requires the Commission to ``consider, in particular, an
appropriate amendment to reflect the intent of Congress that straw
purchasers without significant criminal histories receive sentences
that are sufficient to deter participation in such activities and
reflect the defendant's role and culpability, and any coercion,
domestic violence survivor history, or other mitigating factors.'' See
Public Law 117-159, Sec. 12004(a)(5) (2022).
In response to the directive, Options 1 and 2 of Part A of the
proposed amendment would add a new [1][2]-level reduction based on
certain mitigating factors.
Option 1 would set forth the new [1][2]-level reduction at
subsection (b)(9). The reduction would be applicable if the defendant
(A) [receives
[[Page 7193]]
an enhancement under subsection (b)(5)][is convicted under (i) 18
U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C. 922(a)(6) or 924(a)(1)(A)
and committed the offense with knowledge, intent, or reason to believe
that the offense would result in the transfer of a firearm or
ammunition to a prohibited person]; (B) does not have more than 1
criminal history point, as determined under Sec. 4A1.1 (Criminal
History Category) and Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History), read together, before application of
subsection (b) of Sec. 4A1.3 (Departures Based on Inadequacy of
Criminal History Category); and (C) (i) was motivated by an intimate or
familial relationship or by threats or fear to commit the offense;
[or][and] (ii) received little or no compensation from the offense;
[or][and] (iii) had minimal knowledge [of the scope and structure of
the enterprise][that the firearm would be used or possessed in
connection with further criminal activity].
Option 2 would set forth the new [1][2]-level reduction at
subsection (b)(10). The reduction would be applicable if subsection
(b)(9) does not apply and the defendant (A) is convicted under 18
U.S.C. 922(d), 924(h), 924(k), 932, or 933; (B) does not have more than
1 criminal history point, as determined under Sec. 4A1.1 (Criminal
History Category) and Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History), read together, before application of
subsection (b) of Sec. 4A1.3 (Departures Based on Inadequacy of
Criminal History Category); and (C) (i) was motivated by an intimate or
familial relationship or by threats or fear to commit the offense;
[or][and] (ii) received little or no compensation from the offense;
[or][and] (iii) had minimal knowledge [of the scope and structure of
the enterprise][that the firearm would be used or possessed in
connection with further criminal activity].
In relation to this part of the directive, both options in Part A
of the proposed amendment bracket the deletion of the departure
provision at Application Note 15 of Sec. 2K2.1.
Enhancement for Defendants With Criminal Affiliations
Finally, Part A of the proposed amendment addresses the part of the
directive that requires the Commission to ``review and amend its
guidelines and policy statements to reflect the intent of Congress that
a person convicted of an offense under section 932 or 933 of title 18,
United States Code, who is affiliated with a gang, cartel, organized
crime ring, or other such enterprise should be subject to higher
penalties than an otherwise unaffiliated individual.'' See Public Law
117-159, Sec. 12004(a)(5) (2022). Options 1 and 2 of Part A of the
proposed amendment would provide a new [2][3][4]-level enhancement in
response to this part of the directive.
Option 1 would set forth the new [2][3][4]-level enhancement at
subsection (b)(8). The enhancement would be applicable if the defendant
(A) [receives an enhancement under subsection (b)(5)][is convicted
under (i) 18 U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C. 922(a)(6) or
924(a)(1)(A) and committed the offense with knowledge, intent, or
reason to believe that the offense would result in the transfer of a
firearm or ammunition to a prohibited person]; (B) participated, at the
time of the offense, in a group, club, organization, or association of
five or more persons that had as one of its primary purposes the
commission of criminal offenses, with knowledge that its members engage
in or have engaged in criminal activity; and (C) committed the offense
with the intent to promote or further the felonious activities of, or
with the intent to maintain or increase his or her position in, such
group, club, organization, or association.
Option 2 would set forth the new [2][3][4]-level enhancement at
subsection (b)(8). The enhancement would be applicable if the defendant
(A) is convicted under (i) 18 U.S.C. 922(d), 932, or 933; or (ii) 18
U.S.C. 922(a)(6) or 924(a)(1)(A) and committed the offense with
knowledge, intent, or reason to believe that the offense would result
in the transfer of a firearm or ammunition to a prohibited person; (B)
participated, at the time of the offense, in a group, club,
organization, or association of five or more persons that had as one of
its primary purposes the commission of criminal offenses, with
knowledge that its members engage in or have engaged in criminal
activity; and (C) committed the offense with the intent to promote or
further the felonious activities of, or with the intent to maintain or
increase his or her position in, such group, club, organization, or
association.
Issues for Comment
Part A of the proposed amendment also provides issues for comment.
Proposed Amendment
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 18 U.S.C. 956 the following new line references:
``18 U.S.C. 932 2K2.1
18 U.S.C. 933 2K2.1''.
[Option 1 (Revised SOC Enhancement for Straw Purchase and
Trafficking Offenses):
Section 2K2.1(a)(4)(B) is amended by inserting after ``18 U.S.C.
922(d)'' the following: ``, Sec. 932, or Sec. 933''.
Section 2K2.1(a)(6)(B) is amended by inserting after ``18 U.S.C.
922(d)'' the following: ``, Sec. 932, or Sec. 933''.
Section 2K2.1(b) is amended--
in paragraph (5) by striking ``If the defendant engaged in the
trafficking of firearms, increase by 4 levels.'' and inserting the
following:
``(Apply the Greatest) If the defendant--
(A) was convicted under 18 U.S.C. 933(a)(2) or (a)(3), increase by
[1][2] levels;
(B) (i) transported, transferred, sold, or otherwise disposed of,
or purchased or received with intent to transport, transfer, sell, or
otherwise dispose of, a firearm or any ammunition knowing or having
reason to believe that such conduct would result in the receipt of the
firearm or ammunition by an individual who (I) was a prohibited person;
or (II) intended to use or dispose of the firearm or ammunition
unlawfully; or (ii) attempted or conspired to commit the conduct
described in clause (i), increase by [1][2] levels; or
(C) (i) transported, transferred, sold, or otherwise disposed of,
or purchased or received with intent to transport, transfer, sell, or
otherwise dispose of, two or more firearms knowing or having reason to
believe that such conduct would result in the receipt of the firearms
by an individual who (I) had a prior conviction for a crime of
violence, controlled substance offense, or misdemeanor crime of
domestic violence; (II) was under a criminal justice sentence; or (III)
intended to use or dispose of the firearms unlawfully; or (ii)
attempted or conspired to commit the conduct described in clause (i),
increase by [5][6] levels.'';
and by inserting at the end the following new paragraphs (8) and
(9):
``(8) If the defendant--
(A) [receives an enhancement under subsection (b)(5)][is convicted
under (i) 18 U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C. 922(a)(6) or
924(a)(1)(A) and committed the offense with knowledge, intent, or
reason to believe that the offense would result in the transfer of a
firearm or ammunition to a prohibited person];
(B) participated, at the time of the offense, in a group, club,
organization, or association of five or more persons that had as one of
its primary purposes the commission of criminal offenses, with
knowledge that its members engage
[[Page 7194]]
in or have engaged in criminal activity; and
(C) committed the offense with the intent to promote or further the
felonious activities of, or with the intent to maintain or increase his
or her position in, such group, club, organization, or association;
increase by [2][3][4] levels.
(9) If the defendant--
(A) [receives an enhancement under subsection (b)(5)][is convicted
under (i) 18 U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C. 922(a)(6) or
924(a)(1)(A) and committed the offense with knowledge, intent, or
reason to believe that the offense would result in the transfer of a
firearm or ammunition to a prohibited person];
(B) does not have more than 1 criminal history point, as determined
under Sec. 4A1.1 (Criminal History Category) and Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History), read
together, before application of subsection (b) of Sec. 4A1.3
(Departures Based on Inadequacy of Criminal History Category); and
(C) (i) was motivated by an intimate or familial relationship or by
threats or fear to commit the offense; [or][and] (ii) received little
or no compensation from the offense; [or][and] (iii) had minimal
knowledge [of the scope and structure of the enterprise][that the
firearm would be used or possessed in connection with further criminal
activity];
decrease by [1][2] levels.''.
The Commentary to Sec. 2K2.1 captioned ``Statutory Provisions'' is
amended by inserting after ``(k)-(o),'' the following: ``932, 933,''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended--
in Note 3 by striking ``subsections (a)(4)(B) and (a)(6)'' and
inserting ``subsections (a)(4)(B), (a)(6), (b)(5), [(b)(8), and
(b)(9)]'';
in Note 10 by striking ``subsection (a)(1) and (a)(2)'' and
inserting ``subsections (a)(1) and (a)(2)'';
in Note 13--
by striking paragraph (A) as follows:
``(A) In General.--Subsection (b)(5) applies, regardless of whether
anything of value was exchanged, if the defendant--
(i) transported, transferred, or otherwise disposed of two or more
firearms to another individual, or received two or more firearms with
the intent to transport, transfer, or otherwise dispose of firearms to
another individual; and
(ii) knew or had reason to believe that such conduct would result
in the transport, transfer, or disposal of a firearm to an individual--
(I) whose possession or receipt of the firearm would be unlawful;
or
(II) who intended to use or dispose of the firearm unlawfully.'';
by redesignating paragraph (B) as paragraph (A);
in paragraph (A) (as so redesignated) by striking the first
paragraph as follows:
`` `Individual whose possession or receipt of the firearm would be
unlawful' means an individual who (i) has a prior conviction for a
crime of violence, a controlled substance offense, or a misdemeanor
crime of domestic violence; or (ii) at the time of the offense was
under a criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape status.
`Crime of violence' and `controlled substance offense' have the meaning
given those terms in Sec. 4B1.2 (Definitions of Terms Used in Section
4B1.1). `Misdemeanor crime of domestic violence' has the meaning given
that term in 18 U.S.C. 921(a)(33)(A).'',
and inserting the following:
`` `Crime of violence' and `controlled substance offense' have the
meaning given those terms in Sec. 4B1.2 (Definitions of Terms Used in
Section 4B1.1).
`Misdemeanor crime of domestic violence' has the meaning given that
term in 18 U.S.C. 921(a)(33)(A).
The term `criminal justice sentence' includes probation, parole,
supervised release, imprisonment, work release, or escape status.'';
by inserting the following new paragraph (B):
``(B) Application of Subsection (b)(5)(C).--Subsection (b)(5)(C)
shall not apply based upon the receipt or intended receipt of the
firearms by an individual with a prior conviction for a misdemeanor
crime of domestic violence against a person in a dating relationship
if, at the time of the instant offense, such individual [had no prior
conviction for a crime of violence or controlled substance offense and
had not more than one conviction of a misdemeanor crime of domestic
violence against a person in a dating relationship, but 5 years had
elapsed from the later of the judgment of conviction or the completion
of the individual's custodial or supervisory sentence for such an
offense and the individual had not subsequently been convicted of
another such offense; a misdemeanor under federal, state, tribal, or
local law which has, as an element, the use or attempted use of
physical force, or the threatened use of a deadly weapon; or any other
offense covered in 18 U.S.C. 922(g)][met the criteria set forth in the
proviso of 18 U.S.C. 921(a)(33)(C)].'';
and in paragraph (C) by striking ``If the defendant trafficked
substantially more than 25 firearms, an upward departure may be
warranted'' and inserting ``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 [or an unusually large amount of ammunition], an
upward departure may be warranted''[;]
[and by striking Note 15 as follows:
``15. Certain Convictions Under 18 U.S.C. 922(a)(6), 922(d), and
924(a)(1)(A).--In a case in which the defendant is convicted under 18
U.S.C. 922(a)(6), 922(d), or 924(a)(1)(A), a downward departure may be
warranted if (A) none of the enhancements in subsection (b) apply, (B)
the defendant was motivated by an intimate or familial relationship or
by threats or fear to commit the offense and was otherwise unlikely to
commit such an offense, and (C) the defendant received no monetary
compensation from the offense.''].
[Option 2 (Increase Penalties for Offenses with Statutory Maximum
of 15 years or more):
Section 2K2.1(a) is amended--
in paragraph (1) by striking ``26,'' and inserting
``[26][27][28],'';
in paragraph (2) by striking ``24,'' and inserting
``[24][25][26],'';
in paragraph (3) by striking ``22,'' and inserting
``[22][23][24],'';
by striking paragraph (4) as follows:
``(4) 20, if--
(A) the defendant committed any part of the instant offense
subsequent to sustaining one felony conviction of either a crime of
violence or a controlled substance offense; or
(B) the (i) offense involved a (I) semiautomatic firearm that is
capable of accepting a large capacity magazine; or (II) firearm that is
described in 26 U.S.C. 5845(a); and (ii) defendant (I) was a prohibited
person at the time the defendant committed the instant offense; (II) is
convicted under 18 U.S.C. 922(d); or (III) is convicted under 18 U.S.C.
922(a)(6) or 924(a)(1)(A) and committed the offense with knowledge,
intent, or reason to believe that the offense would result in the
transfer of a firearm or ammunition to a prohibited person;'';
by redesignating paragraphs (5), (6), (7), and (8) as paragraphs
(6), (8), (9), and (10), respectively;
by inserting the following new paragraphs (4) and (5):
``(4) [21][22], if--
(A) the defendant committed any part of the instant offense
subsequent to sustaining one felony conviction of either a crime of
violence or a controlled substance offense; or
(B) (i) the defendant is convicted under 18 U.S.C. 922(d), 922(g),
924(h),
[[Page 7195]]
924(k), 932, or 933; and (ii) the offense involved a (I) semiautomatic
firearm that is capable of accepting a large capacity magazine; or (II)
firearm that is described in 26 U.S.C. 5845(a);
(5) 20, if the (A) offense involved a (i) semiautomatic firearm
that is capable of accepting a large capacity magazine; or (ii) firearm
that is described in 26 U.S.C. 5845(a); and (B) defendant (i) was a
prohibited person at the time the defendant committed the instant
offense; or (ii) is convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A)
and committed the offense with knowledge, intent, or reason to believe
that the offense would result in the transfer of a firearm or
ammunition to a prohibited person;'';
by inserting the following new paragraph (7):
``(7) [15][16], if the defendant is convicted under 18 U.S.C.
922(d), 922(g), 924(h), 924(k), 932, or 933;'';
and in paragraph (8) (as so redesignated) by striking ``(B) is
convicted under 18 U.S.C. 922(d); or (C)'' and inserting ``or (B)''.
Section 2K2.1(b) is amended--
in paragraph (2) by striking ``(a)(4), or (a)(5)'' and inserting
``(a)(4), (a)(5), or (a)(6)'';
in the paragraph after paragraph (4) by striking ``level 29'' and
inserting ``level [29][30][31]'';
and by adding at the end the following new paragraphs (8), (9), and
(10):
``(8) If the defendant--
(A) is convicted under (i) 18 U.S.C. 922(d), 932, or 933; or (ii)
18 U.S.C. 922(a)(6) or 924(a)(1)(A) and committed the offense with
knowledge, intent, or reason to believe that the offense would result
in the transfer of a firearm or ammunition to a prohibited person;
(B) participated, at the time of the offense, in a group, club,
organization, or association of five or more persons that had as one of
its primary purposes the commission of criminal offenses, with
knowledge that its members engage in or have engaged in criminal
activity; and
(C) committed the offense with the intent to promote or further the
felonious activities of, or with the intent to maintain or increase his
or her position in, such group, club, organization, or association;
increase by [2][3][4] levels.
(9) If (A) the base offense level is determined under subsection
(a)(7); (B) none of the enhancements in subsection (b) apply; and (C)
the offense of conviction established only the possession or receipt of
firearms or ammunition, decrease by [1 level][2 levels].
(10) If subsection (b)(9) does not apply and the defendant--
(A) is convicted under 18 U.S.C. 922(d), 924(h), 924(k), 932, or
933;
(B) does not have more than 1 criminal history point, as determined
under Sec. 4A1.1 (Criminal History Category) and Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History), read
together, before application of subsection (b) of Sec. 4A1.3
(Departures Based on Inadequacy of Criminal History Category); and
(C) (i) was motivated by an intimate or familial relationship or by
threats or fear to commit the offense; [or][and] (ii) received little
or no compensation from the offense; [or][and] (iii) had minimal
knowledge [of the scope and structure of the enterprise][that the
firearm would be used or possessed in connection with further criminal
activity];
decrease by [1][2] levels.''.
The Commentary to Sec. 2K2.1 captioned ``Statutory Provisions'' is
amended by inserting after ``(k)-(o),'' the following: ``932, 933,''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended--
in Note 2 by striking ``and (a)(4)'' and inserting ``(a)(4), and
(a)(5)'';
in Note 3 by striking ``(a)(4)(B) and (a)(6)'' and inserting
``(a)(5), (a)(8), and (b)(8)'';
in Note 4 by striking ``Subsection (a)(7)'' both places such term
appears and inserting ``Subsection (a)(9)'';
in Note 6 by striking ``subsections (a)(1)-(a)(5)'' and inserting
``subsections (a)(1)-(a)(6)'';
in Note 7 by striking ``(a)(4)(B), or (a)(5)'' and inserting
``(a)(4)(B), (a)(5), or (a)(6)'';
in Note 8(A)--
in the heading by striking ``Subsection (a)(7)'' and inserting
``Subsection (a)(9)'';
and by striking ``under subsection (a)(7)'' both places such phrase
appears and inserting ``under subsection (a)(9)'';
in Note 9 by striking ``prohibited person'' both places such term
appears and inserting ``person described in 18 U.S.C. 922(g) or
922(n)'';
in Note 10 by striking ``subsection (a)(1), (a)(2), (a)(3),
(a)(4)(A), (a)(4)(B), or (a)(6)'' and inserting ``subsection (a)(1),
(a)(2), (a)(3), (a)(4), (a)(5), or (a)(8)'';
in Note 13(B) by inserting after ``18 U.S.C. 921(a)(33)(A).'' the
following: ``However, an individual shall not be considered an
`individual whose possession or receipt of the firearm would be
unlawful' [if, at the time of the instant offense, the individual was
not otherwise covered by such definition and had not more than one
conviction of a misdemeanor crime of domestic violence against a person
in a dating relationship, but 5 years had elapsed from the later of the
judgment of conviction or the completion of the individual's custodial
or supervisory sentence for such an offense and the individual had not
subsequently been convicted of: another such offense; a misdemeanor
under federal, state, tribal, or local law which has, as an element,
the use or attempted use of physical force, or the threatened use of a
deadly weapon; or any other offense covered by the definition of
`individual whose possession or receipt of the firearm would be
unlawful.'] [based upon a conviction of a misdemeanor crime of domestic
violence against a person in a dating relationship, if the individual
met the criteria set forth in the proviso of 18 U.S.C. 921(a)(33)(C) at
the time of the instant offense.]''[;]
[and by striking Note 15 as follows:
``15. Certain Convictions Under 18 U.S.C. 922(a)(6), 922(d), and
924(a)(1)(A).--In a case in which the defendant is convicted under 18
U.S.C. 922(a)(6), 922(d), or 924(a)(1)(A), a downward departure may be
warranted if (A) none of the enhancements in subsection (b) apply, (B)
the defendant was motivated by an intimate or familial relationship or
by threats or fear to commit the offense and was otherwise unlikely to
commit such an offense, and (C) the defendant received no monetary
compensation from the offense.''].
Issues for Comment
1. The directive in the Bipartisan Safer Communities Act requires
the Commission to ensure that defendants convicted of the new offenses
at 18 U.S.C. 932 and 933 and other offenses applicable to the straw
purchases and trafficking of firearms are subject to increased
penalties in comparison to those currently provided by the guidelines
for such straw purchasing and trafficking of firearms offenses. The two
options presented in Part A of the proposed amendment would amend Sec.
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition)
to increase penalties in response to the Act. The Commission seeks
comment on whether either of the options presented in Part A of the
proposed amendment would provide appropriate penalties for cases
involving straw purchases and trafficking of firearms. Should the
Commission adopt either of these options or neither? Are there
particular changes to the penalty levels in either of these options
that should be made?
In addition, the Commission seeks comment on whether additional
changes should be made to Sec. 2K2.1 in response to the part of the
directive that
[[Page 7196]]
requires the Commission to increase penalties for offenses involving
straw purchases and trafficking of firearms. If so, what additional
changes would be appropriate?
2. As described above, the Bipartisan Safer Communities Act also
amended the definition of ``misdemeanor crime of domestic violence'' at
18 U.S.C. 921(a)(33) to include misdemeanor offenses against a person
in ``a current or recent former dating relationship.'' The Act also
added a new provision at section 921(a)(33)(C) stating as follows:
A person shall not be considered to have been convicted of a
misdemeanor crime of domestic violence against an individual in a
dating relationship for purposes of this chapter if the conviction has
been expunged or set aside, or is an offense for which the person has
been pardoned or has had firearm rights restored unless the
expungement, pardon, or restoration of rights expressly provides that
the person may not ship, transport, possess, or receive firearms:
Provided, That, in the case of a person who has not more than 1
conviction of a misdemeanor crime of domestic violence against an
individual in a dating relationship, and is not otherwise prohibited
under this chapter, the person shall not be disqualified from shipping,
transport, possession, receipt, or purchase of a firearm under this
chapter if 5 years have elapsed from the later of the judgment of
conviction or the completion of the person's custodial or supervisory
sentence, if any, and the person has not subsequently been convicted of
another such offense, a misdemeanor under Federal, State, Tribal, or
local law which has, as an element, the use or attempted use of
physical force, or the threatened use of a deadly weapon, or any other
offense that would disqualify the person under [18 U.S.C. Sec. ]
922(g). The national instant criminal background check system
established under section 103 of the Brady Handgun Violence Prevention
Act (34 U.S.C. 40901) shall be updated to reflect the status of the
person. Restoration under this subparagraph is not available for a
current or former spouse, parent, or guardian of the victim, a person
with whom the victim shares a child in common, a person who is
cohabiting with or has cohabited with the victim as a spouse, parent,
or guardian, or a person similarly situated to a spouse, parent, or
guardian of the victim.
In light of this new provision, a person with a conviction for a
misdemeanor crime of domestic violence against an individual in a
dating relationship is not disqualified from shipping, transporting,
possessing, receiving, or purchasing a firearm under chapter 44 of
title 18, United States Code, if the criteria described above are met.
Are the changes to the Commentary to Sec. 2K2.1 set forth in Options 1
and 2 adequate to address this new provision? If not, how should the
Commission address it?
3. In response to the directive in the Bipartisan Safer Communities
Act, Part A of the proposed amendment includes an Option 1 that would
amend Sec. 2K2.1 to, among other things, revise the firearms
trafficking enhancement at Sec. 2K2.1(b)(5) to apply to straw
purchases and trafficking offenses. The revised enhancement would
result in higher penalties for straw purchasers and firearms
traffickers. The Commission seeks comment on whether having higher
penalties for straw purchasers than prohibited persons raises
proportionality concerns the Commission should address. If so, how
should the Commission address those concerns?
4. Part A of the proposed amendment includes an Option 2 that would
revise Sec. 2K2.1(a) in several ways. Among other things, it would
keep current Sec. 2K2.1(a)(4)(B) with a base offense level of 20
applicable if the (A) offense involved a (i) semiautomatic firearm that
is capable of accepting a large capacity magazine; or (ii) firearm that
is described in 26 U.S.C. 5845(a); and (B) defendant (i) was a
prohibited person at the time the defendant committed the instant
offense; or (ii) is convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A)
and committed the offense with knowledge, intent, or reason to believe
that the offense would result in the transfer of a firearm or
ammunition to a prohibited person. In addition, Option 2 would delete
current Sec. 2K2.1(a)(6)(B) but keep the base offense level of 14
applicable to any defendant who (A) was a prohibited person at the time
the defendant committed the instant offense; or (B) is convicted under
18 U.S.C. 922(a)(6) or 924(a)(1)(A) and committed the offense with
knowledge, intent, or reason to believe that the offense would result
in the transfer of a firearm or ammunition to a prohibited person. The
Commission seeks comment on whether it should change the current base
offense levels of 14 and 20 applicable to the defendants described
above. If so, what offense level would be appropriate to any such
defendant, and why?
5. Options 1 and 2 of Part A of the proposed amendment would add to
Sec. 2K2.1 a new [1][2]-level reduction based on certain mitigating
factors. Option 1 provides that the reduction applies if the defendant
[received an enhancement under the new subsection (b)(5) proposed in
Option 1][was convicted under (i) 18 U.S.C. 922(d), 932, or 933; or
(ii) 18 U.S.C. 922(a)(6) or 924(a)(1)(A) and committed the offense with
knowledge, intent, or reason to believe that the offense would result
in the transfer of a firearm or ammunition to a prohibited person] and
meets other certain criteria. Option 2 provides that the reduction
applies if subsection (b)(9) does not apply and the defendant is
convicted under 18 U.S.C. 922(d), 924(h), 924(k), 932, or 933, and
meets the same other criteria provided in Option 1. The Commission
seeks comment on whether this new adjustment should apply more broadly.
Instead of providing a [1][2]-level reduction, should the Commission
provide a departure provision applicable to defendants who meet the
criteria?
The Commission also seeks comment on whether the criteria provided
in Options 1 and 2 for this new reduction are appropriate. Should any
criterion be deleted or changed? Should the Commission provide
additional or different criteria?
The Commission further seeks comment on the criminal history
requirement provided in Options 1 and 2. Is the proposed requirement
appropriate to respond to Congress's intent to address ``straw
purchasers without significant criminal histories''? Should the
Commission instead use a different criminal history requirement than
the one proposed in Options 1 and 2?
6. Application Note 15 of Sec. 2K2.1 contains a downward departure
provision for cases in which the defendant is convicted under 18 U.S.C.
922(a)(6), 922(d), or 924(a)(1)(A) and meets certain criteria, similar
to some of the criteria included in the new proposed reduction provided
in Option 1 at subsection (b)(9) and in Option 2 at subsection (b)(10).
Hence, both options bracket the possibility of deleting the current
departure provision. If the Commission were to promulgate any of the
options in Part A of the proposed amendment, either as an adjustment or
a downward departure provision, should the Commission delete the
current departure provision at Application Note 15? If not, how should
the new reduction interact with the current departure provision? Should
the current departure provision be modified in any way?
7. In response to the directive contained in the Bipartisan Safer
Communities Act, Options 1 and 2 of Part A of the proposed amendment
would provide a new [2][3][4]-level
[[Page 7197]]
enhancement in Sec. 2K2.1 based on the criminal affiliations of the
defendant. Option 1 provides that the new enhancement would be
applicable if the defendant [received an enhancement under the new
subsection (b)(5) proposed in Option 1][was convicted under (i) 18
U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C. 922(a)(6) or 924(a)(1)(A)
and committed the offense with knowledge, intent, or reason to believe
that the offense would result in the transfer of a firearm or
ammunition to a prohibited person] and meets other criteria. Option 2
provides that the new enhancement would be applicable if the defendant
is convicted under (i) 18 U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C.
922(a)(6) or 924(a)(1)(A) and committed the offense with knowledge,
intent, or reason to believe that the offense would result in the
transfer of a firearm or ammunition to a prohibited person; and meets
the same other criteria provided in Option 1. The Commission seeks
comment on whether the new enhancement should apply more broadly.
Should the Commission provide additional or different criteria for
purposes of applying this enhancement? In addition, how should this new
enhancement interact with the existing enhancements at Sec. 2K2.1?
Should the new enhancement be cumulative with other enhancements, or
should it interact with other enhancements in some other way (e.g., by
establishing a ``cap'' on its cumulative impact with other
enhancements)? Should the Commission instead provide an altogether
different approach to respond to this part of the congressional
directive?
(B) Firearms Not Marked With Serial Number (``Ghost Guns'')
Synopsis of Proposed Amendment: Subsection (b)(4) of Sec. 2K2.1
(Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition)
provides an alternative enhancement for a firearm that was stolen or
that has an altered or obliterated serial number. Specifically,
subsection (b)(4)(A) provides for a 2-level increase where a firearm is
stolen, while subsection (b)(4)(B) provides for a 4-level increase
where a firearm has an altered or obliterated serial number. The
Commentary to Sec. 2K2.1 provides that the enhancement applies
regardless of whether the defendant knew or had reason to believe that
the firearm was stolen or had an altered or obliterated serial number.
USSG Sec. 2K2.1, comment. (n.8(B)).
The enhancement at Sec. 2K2.1 currently does not apply to ``ghost
guns.'' ``Ghost guns'' is the term commonly used to refer to firearms
that are not marked by a serial number by which they can be identified
and traced, and that are typically made by an unlicensed individual
from purchased components (such as standalone parts or weapon parts
kits) or homemade components. Because of their lack of identifying
markings, it is difficult to trace ghost guns and determine where and
who manufactured them, and to whom they were sold or otherwise
disposed. The Commission has heard from commenters that the very
purpose of ``ghost guns'' is to avoid the tracking and tracing systems
associated with a firearm's serial number and that they increasingly
are associated with violent crime. Commenters have also indicated that
Sec. 2K2.1 does not adequately address ``ghost guns,'' as the
enhancement at Sec. 2K2.1(b)(4)(B) only covers firearms that were
marked with a serial number when manufactured but where such identifier
was later altered or obliterated.
Part B of the proposed amendment would respond to these concerns by
revising Sec. 2K2.1(b)(4)(B) to provide that the 4-level enhancement
applies if any firearm had an altered or obliterated serial number or
was not otherwise marked with a serial number [(other than an antique
firearm, as defined in 18 U.S.C. 921(a)(16))].
An issue for comment is provided.
Proposed Amendment
Section 2K2.1(b)(4)(B) is amended by striking ``had an altered or
obliterated serial number'' and inserting ``(i) had an altered or
obliterated serial number; or (ii) was not otherwise marked with a
serial number [(other than an antique firearm, as defined in 18 U.S.C.
921(a)(16))]''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended--
in Note 8(A)--
in the first paragraph by striking ``However, if the offense
involved a firearm with an altered or obliterated serial number, apply
subsection (b)(4)(B)'' and inserting ``However, if the offense involved
a firearm with an altered or obliterated serial number, or that was not
otherwise marked with a serial number [(other than an antique firearm,
as defined in 18 U.S.C. 921(a)(16))], apply subsection (b)(4)(B)(i) or
(ii)'';
and by striking the second paragraph as follows:
``Similarly, if the offense to which Sec. 2K2.1 applies is 18
U.S.C. 922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an
altered or obliterated serial number) and the base offense level is
determined under subsection (a)(7), do not apply the enhancement in
subsection (b)(4)(B). This is because the base offense level takes into
account that the firearm had an altered or obliterated serial number.
However, it the offense involved a stolen firearm or stolen ammunition,
apply subsection (b)(4)(A).'',
and inserting the following:
``Similarly, if the offense to which Sec. 2K2.1 applies is 18
U.S.C. 922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an
altered or obliterated serial number) and the base offense level is
determined under subsection (a)(7), do not apply the enhancement in
subsection (b)(4)(B)(i). This is because the base offense level takes
into account that the firearm had an altered or obliterated serial
number. However, it the offense involved a stolen firearm or stolen
ammunition, or a firearm that was not otherwise marked with a serial
number [(other than an antique firearm, as defined in 18 U.S.C.
921(a)(16))], apply subsection (b)(4)(A) or (B)(ii).'';
and in Note 8(B) by striking ``Subsection (b)(4) applies regardless
of whether the defendant knew or had reason to believe that the firearm
was stolen or had an altered or obliterated serial number'' and
inserting ``Subsection (b)(4) applies regardless of whether the
defendant knew or had reason to believe that the firearm was stolen,
had an altered or obliterated serial number, or was not otherwise
marked with a serial number [(other than an antique firearm, as defined
in 18 U.S.C. 921(a)(16))]''.
Issue for Comment
1. Part B of the proposed amendment would expand the scope of
subsection (b)(4) of Sec. 2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition) to address firearms that are not
marked with a serial number [(other than an antique firearm, as defined
in 18 U.S.C. 921(a)(16))], in addition to firearms that were stolen or
had an altered or obliterated serial number. The Commission seeks
comment on whether it should further revise the enhancement at Sec.
2K2.1(b)(4). For example, should the Commission insert into Sec.
2K2.1(b)(4) a mental state (mens rea) requirement that the defendant
knew, or had reason to believe, that the firearm was stolen, had an
altered or obliterated serial number, or was not otherwise marked with
a serial number (other than an antique
[[Page 7198]]
firearm, as defined in 18 U.S.C. 921(a)(16))?
(C) Issues for Comment on Further Revisions to Sec. 2K2.1
1. Parts A of the proposed amendment would amend Sec. 2K2.1
(Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition)
to respond to the Bipartisan Safer Communities Act. Part B of the
proposed amendment would amend Sec. 2K2.1 to address concerns
expressed by some commenters about firearms that are not marked by a
serial number (i.e., ``ghost guns''). The Commission seeks comment on
whether it should further revise Sec. 2K2.1 to appropriately address
firearms offenses.
2. Offenses under 18 U.S.C. 922(u) are referenced to Sec. 2K2.1.
Section 922(u) prohibits stealing or unlawfully taking or carrying away
from the person or the premises of a person who is licensed to engage
in the business of importing, manufacturing, or dealing in firearms,
any firearm in the licensee's business inventory that has been shipped
or transported in interstate or foreign commerce. The Department of
Justice has expressed concerns that all offenses under 18 U.S.C.
922(u), which covers conduct of varying severity (including simple
theft, burglary, and robbery), are treated the same in Sec. 2K2.1.
According to the Department of Justice, burglaries and robberies of
federal firearms licensees are particularly dangerous crimes that often
involve multiple weapons. Currently, Sec. 2K2.1 provides at subsection
(b)(4)(A) a 2-level enhancement if any firearm was stolen. Application
Note 8(A) of Sec. 2K2.1 provides that this 2-level enhancement should
not apply if the base offense level is set at level 12 under Sec.
2K2.1(a)(7) (e.g., a defendant convicted under 18 U.S.C. 922(u))
because the base offense level takes into account that the firearm or
ammunition was stolen. The Commission seeks comment on whether it
should amend Sec. 2K2.1 to specifically address offenses where the
offense involved the burglary or robbery of a federal firearms
licensee. For example, should the Commission add an enhancement to
Sec. 2K2.1 that would be applicable if the offense involved the
burglary or robbery of a federal firearms licensee? If so, what level
of enhancement should the Commission set forth for such conduct? How
should this enhancement interact with the stolen firearms enhancement
at Sec. 2K2.1(b)(4)(A)? Should the Commission provide that both
enhancements are to be applied cumulatively or in the alternative?
3. The base offense levels at Sec. 2K2.1(a) include as factors
that form the basis for their application certain recidivism
requirements, such as whether the defendant committed the instant
offense subsequent to sustaining one or more felony convictions of
either a crime of violence or controlled substance offense. The
Commission seeks comment on whether it should add other types of prior
convictions as the basis for applying base offense levels or specific
offense characteristics, and what base offense level or offense level
increase should the Commission provide for any such prior conviction.
For example, should the Commission provide for increased penalties if
the defendant committed the instant offense subsequent to sustaining a
conviction or multiple convictions for a misdemeanor crime of domestic
violence or an offense that involved a firearm? If so, should the
Commission treat prior convictions for a misdemeanor crime of domestic
violence or an offense that involved a firearm the same as prior
convictions for a crime of violence or a controlled substance offense
and provide the same level of enhancement? If not, what base offense
level or offense level increase should the Commission set forth for
prior convictions for a misdemeanor crime of domestic violence or an
offense that involved a firearm?
4. The general definition of ``firearm'' in Sec. 2K2.1 at
Application Note 1 is drawn from 18 U.S.C. 921(a)(3). However, Sec.
2K2.1 applies a higher base offense level to offenses involving
firearms described in 26 U.S.C. 5845(a). Although section 5845(a)
generally defines a more limited class of firearms than section
921(a)(3), there are a limited number of devices--such as those
``designed and intended solely and exclusively . . . for use in
converting a weapon into a machinegun'' which are ``firearms'' under
section 5845(a) but not section 921(a)(3). Thus, such devices are
``firearms'' for purposes of the increased base offenses levels in
Sec. 2K2.1(a)(1), (a)(3), (a)(4)(B)(i)(II), and (a)(5), but not for
purposes of specific offense characteristics referring to ``firearms,''
such as Sec. 2K2.1(b)(1). The Commission seeks comment on whether it
should amend the definition of ``firearms'' in Application Note 1 of
Sec. 2K2.1 to include devices which are ``firearms'' under section
5845(a) but not section 921(a)(3).
5. The Commission seeks general comment on whether it should amend
Sec. 2K2.1 to increase penalties for defendants who transfer a firearm
to a minor. If so, how?
4. Circuit Conflicts
Synopsis of Proposed Amendment: This proposed amendment addresses
certain circuit conflicts involving Sec. 3E1.1 (Acceptance of
Responsibility) and Sec. 4B1.2 (Definitions of Terms Used in Section
4B1.1). See U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 87 FR
67756 (Nov. 9, 2022) (identifying resolution of circuit conflicts as a
priority, including the circuit conflicts concerning (A) whether the
government may withhold a motion pursuant to Sec. 3E1.1(b) because a
defendant moved to suppress evidence; and (B) whether an offense must
involve a substance controlled by the Controlled Substances Act (21
U.S.C. 801 et seq.) to qualify as a ``controlled substance offense''
under Sec. 4B1.2(b)). The proposed amendment contains two parts (Part
A and Part B). The Commission is considering whether to promulgate
either or both of these parts, as they are not mutually exclusive.
Part A of the proposed amendment would amend Sec. 3E1.1 and its
accompanying commentary to address circuit conflicts regarding the
permissible bases for withholding a reduction under Sec. 3E1.1(b). It
would set forth a definition of the term ``preparing for trial'' that
provides more clarity on what actions typically constitute preparing
for trial for the purposes of Sec. 3E1.1(b). An issue for comment is
also provided.
Part B of the proposed amendment would amend Sec. 4B1.2 by adding
a definition of the term ``controlled substance'' to address a circuit
conflict concerning whether the definition of ``controlled substance
offense'' in Sec. 4B1.2(b) only covers offenses involving substances
controlled by federal law. Two options are presented. An issue for
comment is also included.
(A) Circuit Conflicts Concerning Sec. 3E1.1(b)
Synopsis of Proposed Amendment: Subsection (a) of Sec. 3E1.1
(Acceptance of Responsibility) provides for a 2-level reduction for a
defendant who clearly demonstrates acceptance of responsibility for the
offense. See USSG Sec. 3E1.1(a). Subsection (b) of Sec. 3E1.1 sets
forth the circumstances under which a defendant is eligible for an
additional 1-level reduction by providing:
If the defendant qualifies for a decrease under subsection (a), the
offense level determined prior to the operation of subsection (a) is
level 16 or greater, and upon motion of the government stating that the
defendant has assisted authorities in the investigation or prosecution
of his own
[[Page 7199]]
misconduct by timely notifying authorities of his intention to enter a
plea of guilty, thereby permitting the government to avoid preparing
for trial and permitting the government and the court to allocate their
resources efficiently, decrease the offense level by 1 additional
level. USSG Sec. 3E1.1(b).
Section 401(g) of the Prosecutorial Remedies and Other Tools to end
the Exploitation of Children Today Act of 2003 (``PROTECT Act''), among
other things, directly amended Sec. 3E1.1(b) to include the language
requiring a government motion and consideration of government
resources. See Public Law 108-21, 401(g)(1), 117 Stat. 650 (2003). The
PROTECT Act also added the following sentence to Application Note 6 of
the Commentary to Sec. 3E1.1: ``Because the Government is in the best
position to determine whether the defendant has assisted authorities in
a manner that avoids preparing for trial, an adjustment under
subsection (b) may only be granted upon a formal motion by the
Government at the time of sentencing.'' Id. Sec. 401(g)(2).
In 2013, the Commission promulgated Amendment 775 to address two
circuit conflicts over the Sec. 3E1.1(b) motion requirement. See USSG
App. C, amend. 775 (effective Nov. 1, 2013). Among other things, the
amendment added the following sentence to Application Note 6: ``The
government should not withhold such a motion based on interests not
identified in Sec. 3E1.1, such as whether the defendant agrees to
waive his or her right to appeal.'' Id.
Two circuit conflicts have arisen relating to Sec. 3E1.1(b). The
first conflict concerns whether a Sec. 3E1.1(b) reduction may be
withheld or denied because a defendant moved to suppress evidence.
Justice Sotomayor, joined by Justice Gorsuch, recently ``emphasize[d]
the need for clarification from the Commission'' on this ``important
and longstanding split.'' Longoria v. United States, 141 S. Ct. 978,
979 (2021) (statement of Sotomayor, J., with whom Gorsuch, J. joins,
respecting the denial of certiorari). The second conflict concerns
whether the government may withhold a Sec. 3E1.1(b) motion where the
defendant has raised sentencing challenges.
These conflicts largely turn on how much discretion the government
has to withhold a motion under Sec. 3E1.1(b). Some circuits use the
analytical framework from Wade v. United States, 504 U.S. 181, 185-86
(1992), applicable to substantial assistance motions under Sec. 5K1.1
(Substantial Assistance to Authorities) (Policy Statement) and 18
U.S.C. 3553(e)--that the government's discretion is broad, but refusal
to file a motion cannot be based on ``an unconstitutional motive'' or a
reason ``not rationally related to any legitimate Government end.''
Other circuits specify that withholding is permissible if based on an
interest identified in Sec. 3E1.1. Courts also have grappled with
whether the government's discretion is limited to situations involving
trial preparation, and whether suppression motions or sentencing
disputes are enough like trial preparation to withhold a motion.
In relation to the first circuit conflict, the Third, Fifth, and
Sixth Circuits have permitted the government to withhold a Sec.
3E1.1(b) motion based on a suppression motion. See, e.g., United States
v. Longoria, 958 F.3d 372, 376-78 (5th Cir. 2020) (Amendment 775 did
not clearly overrule its caselaw ``allowing the government to withhold
the third point when it must litigate a suppression motion'';
suppression hearing was largely the ``substantive equivalent of a full
trial'' (quoting United States v. Gonzales, 19 F.3d 982, 984 (5th Cir.
1994))), cert. denied, 141 S. Ct. 978 (2021); United States v. Collins,
683 F.3d 697, 707 (6th Cir. 2012) (suppression motion required the
government ``to undertake trial-like preparations''; ``Avoiding
litigation on a motion to suppress is rationally related to the
legitimate government interest in the efficient allocation of its
resources. Accordingly . . . the government's decision to withhold the
Sec. 3E1.1(b) motion was not arbitrary or unconstitutionally
motivated.''); United States v. Drennon, 516 F.3d 160, 161, 163 (3d
Cir. 2008) (suppression hearing involved ``the large majority of the
work to prepare for trial''; motion withheld due to ``concern for the
efficient allocation of the government's litigating resources,'' not an
unconstitutional motive).
The First, Second, Ninth, Tenth, and D.C. Circuits have held that a
reduction may not be denied based on a suppression motion. See, e.g.,
United States v. Vargas, 961 F.3d 566, 582-84 (2d Cir. 2020) (district
court erred in denying government's Sec. 3E1.1(b) motion because of
suppression hearing; any ``experienced criminal lawyer knows that
preparing for a jury trial involves more work than preparing for a
suppression hearing''); United States v. Price, 409 F.3d 436, 443-44
(D.C. Cir. 2005) (district court erred in denying additional reduction
based on suppression motion; while government had to prepare for a
suppression hearing, ``it never had to prepare for trial''); United
States v. Marquez, 337 F.3d 1203, 1212 (10th Cir. 2003) (``district
court may not rely on the fact that the defendant filed a motion to
suppress requiring a `lengthy suppression hearing' to justify a denial
of the third level reduction''; even where issues substantially
overlap, ``preparation for a motion to suppress would not require the
preparation of voir dire questions, opening statements, closing
arguments, and proposed jury instructions, to name just a few
examples''); United States v. Marroquin, 136 F.3d 220, 225 (1st Cir.
1998) (``[g]uidelines do not force a defendant to forgo the filing of
routine pre-trial motions as the price of receiving a one-step
decrease''); United States v. Kimple, 27 F.3d 1409, 1415 (9th Cir.
1994) (district court erred in denying the additional reduction where
``resources were expended not in conducting trial preparation, but in
considering pretrial motions [including suppression motion] necessary
to protect [the defendant's] rights'').
With respect to the second circuit conflict, the First, Third,
Seventh, and Eighth Circuits have held that the government may withhold
a Sec. 3E1.1(b) motion where the defendant has raised sentencing
challenges. See, e.g., United States v. Adair, 38 F.4th 341, 361 (3d
Cir. 2022) (government properly withheld motion where defendant
``caused [the government] to have to prepare for a two-day sentencing
hearing''; government did not act with an unconstitutional motive);
United States v. Jordan, 877 F.3d 391, 395 (8th Cir. 2017) (defendant's
denial of conduct relevant to sentencing did not ``permit[ ] the
government and the court to allocate their resources efficiently''
(citation omitted)); United States v. Sainz-Preciado, 566 F.3d 708, 716
(7th Cir. 2009) (government had ``good reason'' to withhold motion
where it had to prepare ``testimony and other evidence to prove the
full scope of [defendant's] criminal conduct at the sentencing
hearing''); United States v. Beatty, 538 F.3d 8, 16-17 (1st Cir. 2008)
(within the government's broad discretion to withhold motion where
government reasonably determined that the defendant frivolously
contested issues related to sentencing). The Second and Fifth Circuits
have held that the government may not withhold a motion on this basis.
See, e.g., United States v. Castillo, 779 F.3d 318, 324-26 (5th Cir.
2015) (``we disagree that the government may withhold a Sec. 3E1.1(b)
motion simply because it has had to use its resources to litigate a
sentencing issue''; however, dispute must be in good faith); United
States v. Lee, 653 F.3d 170, 174 (2d Cir. 2011) (``As long as the
defendant disputes the accuracy of a factual assertion in the PSR in
good
[[Page 7200]]
faith, the government abuses its authority by refusing to move for a
third-point reduction because the defendant has invoked his right to a
Fatico hearing.'').
Part A of the proposed amendment would amend Sec. 3E1.1(b) to
provide a definition of the term ``preparing for trial.'' It would also
delete the following sentence in Application Note 6 of the Commentary
to Sec. 3E1.1: ``The government should not withhold such a motion
based on interests not identified in Sec. 3E1.1, such as whether the
defendant agrees to waive his or her right to appeal.''
An issue for comment is provided.
Proposed Amendment
Section 3E1.1(b) is amended by inserting after ``1 additional
level.'' the following:
``For the purposes of this guideline, the term `preparing for
trial' means substantive preparations taken to present the government's
case against the defendant to a jury (or judge, in the case of a bench
trial) at trial. `Preparing for trial' is ordinarily indicated by
actions taken close to trial, such as drafting in limine motions,
proposed voir dire questions and jury instructions, and witness and
exhibit lists. Preparation for early pretrial proceedings (such as
litigation related to a charging document, early discovery motions, and
early suppression motions) ordinarily are not considered `preparing for
trial' under this subsection. Post-conviction matters (such as
sentencing objections, appeal waivers, and related issues) are not
considered `preparing for trial.' ''.
The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is
amended in Note 6 by striking ``The government should not withhold such
a motion based on interests not identified in Sec. 3E1.1, such as
whether the defendant agrees to waive his or her right to appeal.''.
Issue for Comment
1. Part A of the proposed amendment would amend Sec. 3E1.1
(Acceptance of Responsibility) to address the circuit conflicts
described in the synopsis above. The proposed amendment would amend
subsection (b) of Sec. 3E1.1 to provide a definition for the term
``preparing for trial.'' The Commission seeks comment on whether the
proposed definition of ``preparing for trial'' is appropriate for
purposes of Sec. 3E1.1(b). If not, what definition should the
Commission provide?
In the alternative, should the Commission address the circuit
conflicts in a manner other than the one provided in Part A of the
proposed amendment? For example, should the Commission address the
breadth of the government's discretion to withhold a Sec. 3E1.1(b)
motion, either by incorporating the framework outlined in Wade v.
United States, 504 U.S. 181, 185-86 (1992) (i.e., an ``unconstitutional
motive'' or a reason ``not rationally related to any legitimate
Government end'') (see, e.g., United States v. Adair, 38 F.4th 341, 361
(3d Cir. 2022)), or by specifying a different standard?
(B) Circuit Conflicts Concerning Sec. 4B1.2(b)
Synopsis of Proposed Amendment: Subsection (b) of Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1) defines a ``controlled
substance offense'' as ``an offense under federal or state law . . .
that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or
the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense.''
USSG Sec. 4B1.2(b). The definition in Sec. 4B1.2(b) principally
applies to the career offender guideline at Sec. 4B1.1 (Career
Offender). However, several other guidelines incorporate this
definition by reference, often providing for higher base offense levels
if the defendant committed the instant offense after sustaining a
conviction for a ``controlled substance offense.'' See USSG Sec. Sec.
2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive
Materials; Prohibited Transactions Involving Explosive Materials),
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition),
4B1.4 (Armed Career Criminal), 5K2.17 (Semiautomatic Firearms Capable
of Accepting Large Capacity Magazine (Policy Statement)), and 7B1.1
(Classification of Violations (Policy Statement)).
The circuits are split regarding whether the definition of a
``controlled substance offense'' in Sec. 4B1.2(b) only covers offenses
involving substances controlled by the federal Controlled Substances
Act (``CSA'') (21 U.S.C. 801 et seq.), or whether the definition also
applies to offenses involving substances controlled by applicable state
law. This circuit conflict prompted Justice Sotomayor, joined by
Justice Barrett, to call for the Commission to ``address this division
to ensure fair and uniform application of the [g]uidelines.'' Guerrant
v. United States, 142 S. Ct. 640, 640-41 (2022) (statement of
Sotomayor, J., with whom Barrett, J. joins, respecting the denial of
certiorari).
The Second and Ninth Circuits have held that a ``controlled
substance offense'' only includes offenses involving substances
controlled by federal law (the CSA), not offenses involving substances
that a state's schedule lists as a controlled substance, but the CSA
does not. See United States v. Bautista, 989 F.3d 698, 705 (9th Cir.
2021) (conviction under Arizona statute criminalizing hemp as well as
marijuana is not a ``controlled substance offense'' because hemp is not
listed in the CSA); United States v. Townsend, 897 F.3d 66, 74 (2d Cir.
2018) (conviction under New York statute prohibiting the sale of Human
Chorionic Gonadotropin (``HCG'') is not a ``controlled substance
offense'' because HCG is not controlled under the CSA).
By contrast, the Fourth, Seventh, Eighth, and Tenth Circuits have
held that a state conviction involving a controlled substance that is
not identified in the CSA can qualify as a ``controlled substance
offense'' under the guidelines. See United States v. Jones, 15 F.4th
1288, 1295 (10th Cir. 2021) (definition of ``controlled substance
offense'' includes ``state-law controlled substance offenses, involving
substances not found on the CSA''), cert. denied, 143 S. Ct. 268
(2022); United States v. Henderson, 11 F.4th 713, 718 (8th Cir. 2021)
(``There is no requirement that the particular substance underlying the
state offense is also controlled under a distinct federal law.''),
cert. denied, 142 S. Ct. 1696 (2022); United States v. Ward, 972 F.3d
364, 374 (4th Cir. 2020) (``the Commission has specified that we look
to either the federal or state law of conviction to define whether an
offense will qualify [as a controlled substance offense].''), cert
denied, 141 S. Ct. 2864 (2021); United States v. Ruth, 966 F.3d 642,
654 (7th Cir. 2020) (``The career-offender guideline defines the term
controlled substance offense broadly, and the definition is most
plainly read to `include state-law offenses[.]' '' (citation quotation
omitted)), cert. denied, 141 S. Ct. 1239 (2021).
Part B of the proposed amendment would amend Sec. 4B1.2(b) to
include a definition for ``controlled substance'' to address the
circuit conflict. Two options are provided.
Option 1 would set forth a definition of ``controlled substance''
that adopts the approach of the Second and Ninth Circuits. It would
limit the definition of the term to substances that are specifically
included in the CSA.
Option 2 would set forth a definition of ``controlled substance''
that adopts
[[Page 7201]]
the approach of the Fourth, Seventh, Eighth, and Tenth Circuits. It
would provide that the term ``controlled substance'' refers to
substances either included in the CSA or otherwise controlled under
applicable state law.
An issue for comment is also provided.
Proposed Amendment
Section 4B1.2(b) is amended by adding at the end the following new
paragraph:
[Option 1 (Controlled Substances under Federal Law):
`` `Controlled substance' refers to a drug or other substance, or
immediate precursor, included in schedule I, II, III, IV, or V of the
Controlled Substances Act (21 U.S.C. 801 et seq.).''.]
[Option 2 (Controlled Substances under Federal or State Law):
`` `Controlled substance' refers to a drug or other substance, or
immediate precursor, either included in schedule I, II, III, IV, or V
of the Controlled Substances Act (21 U.S.C. 801 et seq.) or otherwise
controlled under applicable state law.''.]
Issue for Comment
1. Part B of the proposed amendment would amend subsection (b) of
Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1) to set forth a
definition of ``controlled substance.'' Two options are provided for
such definition.
The Commentary to Sec. 2L1.2 (Unlawfully Entering or Remaining in
the United States) contains a definition for the term ``drug
trafficking offense'' that closely tracks the definition of
``controlled substance offense'' in Sec. 4B1.2(b). See USSG Sec.
2L1.2, comment. (n.2). If the Commission were to amend Sec. 4B1.2(b)
to include a definition of ``controlled substance,'' should the
Commission also amend Application Note 2 to Sec. 2L1.2 to include the
same definition of ``controlled substance'' for purposes of the ``drug
trafficking offense'' definition?
5. Crime Legislation
Synopsis of Proposed Amendment: This proposed amendment responds to
recently enacted legislation. See U.S. Sent'g Comm'n, ``Notice of Final
Priorities,'' 87 FR 67756 (Nov. 9, 2022) (identifying as a priority
``[i]mplementation of any legislation warranting Commission action'').
The proposed amendment contains eleven parts (Parts A through K).
The Commission is considering whether to promulgate any or all these
parts, as they are not mutually exclusive.
Part A responds to the FDA Reauthorization Act of 2017, Public Law
115-52 (2017), by amending Appendix A (Statutory Index) and the
Commentary to Sec. 2N2.1 (Violations of Statutes and Regulations
Dealing with Any Food, Drug, Biological Product, Device, Cosmetic,
Agricultural Product, or Consumer Product). It also makes a technical
correction to the Commentary to Sec. 2N1.1 (Tampering or Attempting to
Tamper Involving Risk of Death or Bodily Injury). An issue for comment
is also provided.
Part B responds to the Allow States and Victims to Fight Online Sex
Trafficking Act of 2017, Public Law 115-164 (2018), by amending
Appendix A, Sec. 2G1.1 (Promoting a Commercial Sex Act or Prohibited
Sexual Conduct with an Individual Other than a Minor), and Sec. 2G1.3
(Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a
Minor; Transportation of Minors to Engage in a Commercial Sex Act or
Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or
Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children;
Use of Interstate Facilities to Transport Information about a Minor).
In addition, Part B brackets the possibility of amending the Commentary
to Sec. Sec. 4B1.5 (Repeat and Dangerous Sex Offender Against Minors)
and 5D1.2 (Term of Supervised Release) to exclude offenses under 18
U.S.C. 2421A from the definitions of ``covered sex offense'' and ``sex
offense.'' Issues for comment are also provided.
Part C responds to the FAA Reauthorization Act of 2018, Public Law
115-254 (2018), by amending Appendix A and Sec. 2A5.2 (Interference
with Flight Crew Member or Flight Attendant; Interference with
Dispatch, Navigation, Operation, or Maintenance of Mass Transportation
Vehicle), as well as the Commentary to Sec. Sec. 2A2.4 (Obstructing or
Impeding Officers) and 2X5.2 (Class A Misdemeanors (Not Covered by
Another Specific Offense Guideline)). An issue for comment is also
provided.
Part D responds to the SUPPORT for Patients and Communities Act,
Public Law 115-271 (2018), by amending Appendix A and the Commentary to
Sec. Sec. 2B1.1 (Theft, Property Destruction, and Fraud) and 2B4.1
(Bribery in Procurement of Bank Loan and Other Commercial Bribery). An
issue for comment is also provided.
Part E responds to the Amy, Vicky, and Andy Child Pornography
Victim Assistance Act of 2018, Public Law 115-299 (2018), by amending
Appendix A and the Commentary to Sec. 2X5.2. An issue for comment is
also provided.
Part F responds to the Foundations for Evidence-Based Policymaking
Act of 2018, Public Law 115-435 (2019), by amending Appendix A and the
Commentary to Sec. 2H3.1 (Interception of Communications;
Eavesdropping; Disclosure of Certain Private or Protected Information).
An issue for comment is also provided.
Part G responds to the National Defense Authorization Act for
Fiscal Year 2020, Public Law 116-92 (2019), by amending Appendix A and
the Commentary to Sec. 2X5.2. An issue for comment is also provided.
Part H responds to the Representative Payee Fraud Prevention Act of
2019, Public Law 116-126 (2020), by amending Appendix A and the
Commentary to Sec. 2B1.1. An issue for comment is also provided.
Part I responds to the Stop Student Debt Relief Scams Act of 2019,
Public Law 116-251 (2020), by amending Appendix A and the Commentary to
Sec. 2B1.1. An issue for comment is also provided.
Part J responds to the Protecting Lawful Streaming Act of 2020,
part of the Consolidation Appropriation Act, 2021, Public Law 116-260
(2020), by amending Appendix A. Issues for comment are also provided.
Part K responds to the William M. (Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021, Public Law 116-283 (2021), by
amending Appendix A and the Commentary to Sec. 2S1.3 (Structuring
Transactions to Evade Reporting Requirements; Failure to Report Cash or
Monetary Transactions; Failure to File Currency and Monetary Instrument
Report; Knowingly Filing False Reports; Bulk Cash Smuggling;
Establishing or Maintaining Prohibited Accounts). An issue for comment
is also provided.
(A) FDA Reauthorization Act of 2017
Synopsis of Proposed Amendment: Part A of the proposed amendment
responds to the FDA Reauthorization Act of 2017, Public Law 115-52
(2017).
That act amended 21 U.S.C. 333 (Penalties [for certain violations
of the Federal Food, Drug, and Cosmetic Act]) to add a new criminal
offense for the manufacture or distribution of a counterfeit drug. The
new offense states that
any person who violates [21 U.S.C. 331(i)(3)] by knowingly making,
selling, or dispensing, or holding for sale or dispensing, a
counterfeit drug shall be imprisoned for not more than 10 years or
fined in accordance with title 18, [United States Code,] or both.
21 U.S.C. 333(b)(8). Section 331(i)(3) prohibits any action which
causes a drug to be a counterfeit drug, or the sale or dispensing, or
the holding for sale or dispensing, of a counterfeit drug.
[[Page 7202]]
Currently, subsections (b)(1) through (b)(6) of 21 U.S.C. 333 are
referenced in Appendix A (Statutory Index) to Sec. 2N2.1 (Violations
of Statutes and Regulations Dealing With Any Food, Drug, Biological
Product, Device, Cosmetic, or Agricultural Product). Subsection (b)(7)
is referenced to Sec. 2N1.1 (Tampering or Attempting to Tamper
Involving Risk of Death or Bodily Injury). New subsection (b)(8) is not
referenced to any guideline.
Part A of the proposed amendment would amend Appendix A to
reference 21 U.S.C. 333(b)(8) to Sec. 2N2.1. Part A would also amend
the Commentary to Sec. 2N2.1 to reflect that subsection (b)(8), as
well as subsections (b)(1) through (b)(6), of 21 U.S.C. 333 are all
referenced to Sec. 2N2.1. Finally, Part A also makes a technical
change to the Commentary to Sec. 2N1.1, adding 21 U.S.C. 333(b)(7) to
the list of statutory provisions referenced to that guideline.
An issue for comment is also provided.
Proposed Amendment
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 21 U.S.C. 458 the following new line reference:
``21 U.S.C. 333(b)(8) 2N2.1''.
The Commentary to Sec. 2N2.1 captioned ``Statutory Provisions'' is
amended by striking ``333(a)(1), (a)(2), (b)'' and inserting
``333(a)(1), (a)(2), (b)(1)-(6), (b)(8)''.
The Commentary to Sec. 2N1.1 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. 1365(a), (e)'' and inserting ``18
U.S.C. 1365(a), (e); 21 U.S.C. 333(b)(7). For additional statutory
provision(s), see Appendix A (Statutory Index)''.
Issue for Comment
1. In response to the FDA Reauthorization Act of 2017, Public Law
115-52 (2017), Part A of the proposed amendment would reference 21
U.S.C. 333(b)(8) to Sec. 2N2.1 (Violations of Statutes and Regulations
Dealing With Any Food, Drug, Biological Product, Device, Cosmetic,
Agricultural Product, or Consumer Product). The Commission seeks
comment on whether any additional changes to the guidelines are
required to account for section 333(b)(8)'s offense conduct.
Specifically, should the Commission amend Sec. 2N2.1 to provide a
higher or lower base offense level if 21 U.S.C. 333(b)(8) is the
offense of conviction? If so, what should that base offense level be
and why? Should the Commission add a specific offense characteristic to
Sec. 2N2.1 in response to section 333(b)(8)? If so, what should that
specific offense characteristic provide and why?
(B) Allow States and Victims To Fight Online Sex Trafficking Act of
2017
Synopsis of Proposed Amendment: Part B of the proposed amendment
responds to the Allow States and Victims to Fight Online Sex
Trafficking Act of 2017, Public Law 115-164 (2018).
That act created two new criminal offenses codified at 18 U.S.C.
2421A (Promotion or facilitation of prostitution and reckless disregard
of sex trafficking). The first new offense, codified at 18 U.S.C.
2421A(a), provides that
[w]hoever, using a facility or means of interstate or foreign commerce
or in or affecting interstate or foreign commerce, owns, manages, or
operates an interactive computer service . . . , or conspires or
attempts to do so, with the intent to promote or facilitate the
prostitution of another person shall be fined under this title,
imprisoned for not more than 10 years, or both.
The second new offense, codified at 18 U.S.C. 2421A(b), is an
aggravated form of the first. It provides an enhanced statutory maximum
penalty of 25 years for anyone who commits the first offense and either
``(1) promotes or facilitates the prostitution of 5 or more persons''
or ``(2) acts in reckless disregard of the fact that such conduct
contributed to sex trafficking, in violation of [18 U.S.C. ] 1591(a).''
Section 1591(a) criminalizes sex trafficking of a minor or sex
trafficking of anyone by force, threats of force, fraud, or coercion.
Part B of the proposed amendment would amend Appendix A (Statutory
Index) to reference 18 U.S.C. 2421A to Sec. 2G1.1 (Promoting a
Commercial Sex Act or Prohibited Sexual Conduct with an Individual
Other than a Minor) and Sec. 2G1.3 (Promoting a Commercial Sex Act or
Prohibited Sexual Conduct with a Minor; Transportation of Minors to
Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to
Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor;
Sex Trafficking of Children; Use of Interstate Facilities to Transport
Information about a Minor). Offenses involving the promotion or
facilitation of commercial sex acts are generally referenced to these
guidelines.
If the offense did not involve a minor, Sec. 2G1.1 would be the
applicable guideline. For a defendant convicted under 18 U.S.C. 2421A,
subsection (a)(2) would apply, and the defendant's base offense level
would be level 14. Part B of the proposed amendment would amend Sec.
2G1.1(b)(1) so that the four-level increase in the defendant's offense
level provided by that specific offense characteristic would also apply
if subsection (a)(2) applies and [the offense of conviction is][the
offense involved conduct described in] 18 U.S.C. 2421A(b)(2). Section
2421A(b)(2) is the version of the new aggravated offense under which
the defendant has acted in reckless disregard of the fact that their
conduct contributed to sex trafficking in violation of 18 U.S.C.
1591(a).
If the offense involved a minor, Sec. 2G1.3 would be the
applicable guideline. For a defendant convicted under 18 U.S.C. 2421A,
subsection (a)(4) would apply, and the defendant's base offense level
would be level 24. Part B of the proposed amendment would amend Sec.
2G1.3(b)(4) to renumber the existing specific offense characteristic as
Sec. 2G1.3(b)(4)(A) and to add a new Sec. 2G1.3(b)(4)(B), which
provides for a [4]-level increase in the defendant's offense level if
(i) subsection (a)(4) applies; and (ii) [the offense of conviction
is][the offense involved conduct described in] 18 U.S.C. 2421A(b)(2).
Only the greater of Sec. 2G1.3(b)(4)(A) or Sec. 2G1.3(b)(4)(B) would
apply.
Part B of the proposed amendment also would amend the Commentary to
Sec. 2G1.3 to add a new application note instructing that if 18 U.S.C.
2421A(a) or Sec. 2421A(b)(1) is the offense of conviction, the
specific offense characteristic at Sec. 2G1.3(b)(3)(B) does not apply.
That special offense characteristic provides for a two-level increase
in the defendant's offense level if the offense involved the use of a
computer or an interactive computer service to entice, encourage,
offer, or solicit a person to engage in prohibited sexual conduct with
a minor.
Part B of the proposed amendment would make conforming changes to
Sec. Sec. 2G1.1 and 2G1.3 and their accompanying commentary.
Finally, 18 U.S.C. 2421A is codified in chapter 117 (Transportation
for Illegal Sexual Activity and Related Crimes) of title 18 of the
United States Code, which contains statutes that generally prohibit
conduct intended to promote or facilitate prostitution. Various
guidelines refer to chapter 117 overall, including Sec. 4B1.5 (Repeat
and Dangerous Sex Offender Against Minors) and Sec. 5D1.2 (Term of
Supervised Release). Specifically, Sec. 4B1.5 provides for increases
in the defendant's offense level if the offense of conviction is a
``covered sex crime.'' The Commentary to Sec. 4B1.5 states that a
``covered sex crime'' generally includes offenses under chapter 117 but
excludes from coverage the offenses of ``transmitting information about
a minor
[[Page 7203]]
or filing a factual statement about an alien individual.'' Section
5D1.2 includes a policy statement recommending that the court impose
the statutory maximum term of supervised release if the instant offense
of conviction is a ``sex offense.'' The Commentary to Sec. 5D1.2
defines ``sex offense'' to mean, among other things, an offense,
perpetrated against a minor, under chapter 117, ``not including
transmitting information about a minor or filing a factual statement
about an alien individual.'' Part B of the proposed amendment brackets
the possibility of amending the Commentary to Sec. Sec. 4B1.5 and
5D1.2 to exclude offenses under 18 U.S.C. 2421A from the definitions of
``covered sex offense'' and ``sex offense.''
Issues for comment are also provided.
Proposed Amendment
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 18 U.S.C. 2422 the following new line reference:
``18 U.S.C. 2421A 2G1.1, 2G1.3''.
Section 2G1.1(b)(1)(B) is amended by striking ``the offense
involved fraud or coercion'' and inserting ``(i) the offense involved
fraud or coercion, or (ii) [the offense of conviction is][the offense
involved conduct described in] 18 U.S.C. 2421(A)(b)(2)''.
The Commentary to Sec. 2G1.1 captioned ``Statutory Provisions'' is
amended by striking ``2422(a) (only if the offense involved a victim
other than a minor)'' and inserting ``2421A (only if the offense
involved a victim other than a minor), 2422(a) (only if the offense
involved a victim other than a minor). For additional statutory
provision(s), see Appendix A (Statutory Index)''.
Section 2G1.3(b) is amended in paragraph (4) by striking ``If (A)
the offense involved the commission of a sex act or sexual contact; or
(B) subsection (a)(3) or (a)(4) applies and the offense involved a
commercial sex act, increase by 2 levels.'', and inserting the
following:
``(Apply the greater):
(A) If (i) the offense involved the commission of a sex act or
sexual contact; or (ii) subsection (a)(3) or (a)(4) applies and the
offense involved a commercial sex act, increase by 2 levels.
(B) If (i) subsection (a)(4) applies; and (ii) [the offense of
conviction is][the offense involved conduct described in] 18 U.S.C.
2421A(b)(2), increase by [4] levels.''.
The Commentary to Sec. 2G1.3 captioned ``Statutory Provisions'' is
amended by striking ``2422 (only if the offense involved a minor),
2423, 2425'' and inserting ``2421A (only if the offense involved a
minor), 2422 (only if the offense involved a minor), 2423, 2425. For
additional statutory provision(s), see Appendix A (Statutory Index)''.
The Commentary to Sec. 2G1.3 captioned ``Application Notes'' is
amended in Note 4 by striking the following:
``Application of Subsection (b)(3)(A).--Subsection (b)(3)(A) is
intended to apply only to the use of a computer or an interactive
computer service to communicate directly with a minor or with a person
who exercises custody, care, or supervisory control of the minor.
Accordingly, the enhancement in subsection (b)(3)(A) would not apply to
the use of a computer or an interactive computer service to obtain
airline tickets for the minor from an airline's internet site.'',
and inserting the following:
``Application of Subsection (b)(3).--
(A) Application of Subsection (b)(3)(A).--Subsection (b)(3)(A) is
intended to apply only to the use of a computer or an interactive
computer service to communicate directly with a minor or with a person
who exercises custody, care, or supervisory control of the minor.
Accordingly, the enhancement in subsection (b)(3)(A) would not apply to
the use of a computer or an interactive computer service to obtain
airline tickets for the minor from an airline's internet site.
(B) Application of Subsection (b)(3)(B).--If the offense of
conviction is 18 U.S.C. 2421A(a) or Sec. 2421A(b)(1), do not apply
subsection (b)(3)(B).''.
[The Commentary to Sec. 4B1.5 captioned ``Application Notes'' is
amended in Note 2 by striking ``chapter 117 of such title, not
including transmitting information about a minor or filing a factual
statement about an alien individual'' and inserting ``chapter 117 of
such title, not including transmitting information about a minor,
filing a factual statement about an alien individual, or an offense
under 18 U.S.C. 2421A''.]
[The Commentary to Sec. 5D1.2 captioned ``Application Notes'' is
amended in Note 1, in the paragraph that begins `` `Sex offense'
means'', by striking ``chapter 117 of such title, not including
transmitting information about a minor or filing a factual statement
about an alien individual'' and inserting ``chapter 117 of such title,
not including transmitting information about a minor, filing a factual
statement about an alien individual, or an offense under 18 U.S.C.
2421A''.]
Issues for Comment
1. In response to the Allow States and Victims to Fight Online Sex
Trafficking Act of 2017, Public Law 115-164 (2018), Part B of the
proposed amendment would reference 18 U.S.C. 2421A to Sec. 2G1.1
(Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an
Individual Other than a Minor) and Sec. 2G1.3 (Promoting a Commercial
Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of
Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct;
Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct
with a Minor; Sex Trafficking of Children; Use of Interstate Facilities
to Transport Information about a Minor), and would make various
revisions to those guidelines to account for the new statute's offense
conduct. The Commission seeks comment on whether the proposed revisions
are appropriate and on whether the Commission should make other changes
to the guidelines to account for section 2421A's offense conduct.
In particular, Part B of the proposed amendment would rely on the
specific offense characteristics and special instructions in Sec. Sec.
2G1.1 and 2G1.3 to produce the appropriate offense levels for the
aggravated offense at 18 U.S.C. 2421A(b). Should the Commission account
for the aggravated offense in a different way, for example, by
providing a higher base offense level if a defendant is convicted of
that offense? If so, should the Commission use one of the base offense
levels currently provided for convictions under other offenses, such as
level 28, provided by Sec. 2G1.3 for a conviction under 18 U.S.C.
2422(b) or 2423(a), or level 34, provided by Sec. Sec. 2G1.1 and 2G1.3
for a conviction under 18 U.S.C. 1591(b)(1)?
2. The new offenses codified at 18 U.S.C. 2421A are included in
chapter 117 (Transportation for Illegal Sexual Activity and Related
Crimes) of title 18 of the United States Code, which contains statutes
that generally prohibit conduct intended to promote or facilitate
prostitution. As indicated in the synopsis, Sec. Sec. 4B1.5 and 5D1.2
provide definitions for the terms ``covered sex crime'' and ``sex
offense,'' respectively, that generally include offenses in chapter 117
of title 18, with notable exceptions. The chapter 117 offenses that the
Commission excluded from the definitions of ``covered sex crime'' and
``sex offense'' do not criminalize conduct involving the direct sexual
exploitation of a minor by the defendant, but rather are primarily
concerned with the transmission or filing of information about
individuals.
Part B of the proposed amendment brackets the possibility of
amending the Commentary to Sec. Sec. 4B1.5 and 5D1.2 to
[[Page 7204]]
exclude offenses under 18 U.S.C. 2421A from the definitions of
``covered sex offense'' and ``sex offense.'' Section 2421A offenses
generally involve the posting or sharing (i.e., transmission) of
information about an individual, which may not necessarily involve the
direct exploitation of a minor victim by the defendant. The Commission
seeks comment on whether excluding offenses under 18 U.S.C. 2421A from
the definitions of ``covered sex crime'' and ``sex offense'' for
purposes of Sec. Sec. 4B1.5 and 5D1.2 is appropriate due to the nature
of such offenses. Should the Commission, instead, include the
aggravated form of the offense under 18 U.S.C. 2421A(b) in the
definitions of ``covered sex crime'' and ``sex offense''?
(C) FAA Reauthorization Act of 2018
Synopsis of Proposed Amendment: Part C of the proposed amendment
responds to the FAA Reauthorization Act of 2018, Public Law 115-254
(2018). That act created two new criminal offenses concerning the
operation of unmanned aircraft, commonly known as ``drones,'' and added
a new provision to an existing criminal statute that also concerns
drones.
The first new criminal offense, codified at 18 U.S.C. 39B (Unsafe
operation of unmanned aircraft), prohibits the unsafe operation of
drones. Specifically, section 39B(a)(1) prohibits any person from
operating an unmanned aircraft and knowingly interfering with the
operation of an aircraft carrying one or more persons in a manner that
poses an imminent safety hazard to the aircraft's occupants. Section
39B(a)(2) prohibits any person from operating an unmanned aircraft and
recklessly interfering with the operation of an aircraft carrying one
or more persons in a manner that poses an imminent safety hazard to the
aircraft's occupants. Section 39B(b) prohibits any person from
knowingly operating an unmanned aircraft near an airport runway without
authorization. A violation of any of these prohibitions is punishable
by a fine, not more than one year in prison, or both. A violation of
subsection (a)(2) that causes serious bodily injury or death is
punishable by a fine, not more than 10 years of imprisonment, or both.
A violation of subsection (a)(1) or subsection (b) that causes serious
bodily injury or death is punishable by a fine, imprisonment for any
term of years or for life, or both.
The second new criminal offense, codified at 18 U.S.C. 40A
(Operation of unauthorized unmanned aircraft over wildfires), generally
prohibits any individual from operating an unmanned aircraft and
knowingly or recklessly interfering with a wildfire suppression or with
law enforcement or emergency response efforts related to a wildfire
suppression. A violation of this offense is punishable by a fine,
imprisonment for not more than two years, or both.
The act also adds a new subsection (a)(5) to 18 U.S.C. 1752
(Restricted building or grounds). The new subsection prohibits anyone
from knowingly and willfully operating an unmanned aircraft system with
the intent to knowingly and willfully direct or otherwise cause the
system to enter or operate within or above a restricted building or
grounds. A violation of section 1752 is punishable by a fine,
imprisonment for not more than one year, or both. If the violator used
or carried a deadly or dangerous weapon or firearm or if the offense
results in significant bodily injury, the maximum term of imprisonment
increases to ten years.
Part C of the proposed amendment would amend Appendix A (Statutory
Index) to reference 18 U.S.C. 39B to Sec. 2A5.2 (Interference with
Flight Crew Member or Flight Attendant; Interference with Dispatch,
Navigation, Operation, or Maintenance of Mass Transportation Vehicle)
and Sec. 2X5.2 (Class A Misdemeanors (Not Covered by Another Specific
Offense Guideline)). Accordingly, courts would use Sec. 2A5.2 for
felony violations of section 39B and Sec. 2X5.2 for misdemeanor
violations. Part C would also make conforming changes to Sec. 2A5.2
and its commentary and to the Commentary to Sec. 2X5.2. Part C of the
proposed amendment would also amend the title of Sec. 2A5.2 to add
``Unsafe Operation of Unmanned Aircraft.''
In addition, Part C of the proposed amendment would amend Appendix
A to reference 18 U.S.C. 40A to Sec. 2A2.4 (Obstructing or Impeding
Officers). It would also make conforming changes to the Commentary to
Sec. 2A2.4.
Section 1752 is currently referenced in Appendix A to Sec. 2A2.4
and Sec. 2B2.3 (Trespass). Accordingly, courts would use those
guidelines for violations of 18 U.S.C. 1752(a)(5). Part C of the
proposed amendment would make no changes to the guidelines to account
for that provision.
An issue for comment is also provided.
Proposed Amendment
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 18 U.S.C. 43 the following new line references:
``18 U.S.C. 39B 2A5.2, 2X5.2
18 U.S.C. 40A 2A2.4''.
Section 2A5.2 is amended in the heading by striking ``Vehicle'' and
inserting ``Vehicle; Unsafe Operation of Unmanned Aircraft''.
The Commentary to Sec. 2A5.2 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. 1992(a)(1)'' and inserting ``18 U.S.C.
39B, 1992(a)(1)''.
The Commentary to Sec. 2X5.2 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. 1365(f), 1801; 34 U.S.C. 12593; 49
U.S.C. 31310.'' and inserting ``18 U.S.C. 39B, 1365(f), 1801; 34 U.S.C.
12593; 49 U.S.C. 31310. For additional statutory provision(s), see
Appendix A (Statutory Index).''.
The Commentary to Sec. 2A2.4 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. 111'' and inserting ``18 U.S.C. 40A,
111''.
Issue for Comment
1. In response to the FAA Reauthorization Act of 2018, Public Law
115-254 (2018), Part C of the proposed amendment would reference 18
U.S.C. 39B to Sec. 2A5.2 (Interference with Flight Crew Member or
Flight Attendant; Interference with Dispatch, Navigation, Operation, or
Maintenance of Mass Transportation Vehicle) and Sec. 2X5.2 (Class A
Misdemeanors (Not Covered by Another Specific Offense Guideline)). Part
C of the proposed amendment would also reference 18 U.S.C. 40A to Sec.
2A2.4 (Obstructing or Impeding Officers). The Commission seeks comment
on whether these proposed references are appropriate and whether any
additional changes to the guidelines are required to account for the
new criminal offenses created by the FAA Reauthorization Act.
(D) SUPPORT for Patients and Communities Act
Synopsis of Proposed Amendment: Part D of the proposed amendment
responds to the Substance Use-Disorder Prevention that Promotes Opioid
Recovery and Treatment for Patients and Communities Act (``the SUPPORT
for Patients and Communities Act''), Public Law 115-271 (2018).
This Act includes the Eliminating Kickbacks in Recovery Act of
2018, which added a new offense at 18 U.S.C. 220 (Illegal remunerations
for referrals to recovery homes, clinical treatment facilities, and
laboratories). Section 220(a) prohibits, with respect to services
covered by a ``health care benefit program,'' knowing or willfully: (1)
soliciting or receiving any remuneration (including kickbacks, bribes,
or rebates), in cash or in kind, for referring a patient or patronage
to a recovery home, clinical treatment facility, or laboratory; and (2)
paying or offering any
[[Page 7205]]
remuneration (including kickbacks, bribes, or rebates), in cash or in
kind, for inducing a referral of a patient to or in exchange for a
patient using the services of a recovery home, clinical treatment
facility, or laboratory. The new offense has a statutory maximum term
of imprisonment of ten years.
A ``health care benefit program,'' for purposes of section 220,
includes public and private plans and contracts affecting commerce. See
18 U.S.C. 220(e)(3) (referring to the definition of such term at 18
U.S.C. 24(b)). Section 220 also sets forth exemptions to the offense
relating to certain discounts, payments, and waivers. See 18 U.S.C.
220(b).
Part D of the proposed amendment would amend Appendix A (Statutory
Index) to reference 18 U.S.C. 220 to Sec. Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) and 2B4.1 (Bribery in Procurement of Bank Loan
and Other Commercial Bribery). The conduct prohibited in 18 U.S.C. 220
is similar to the conduct prohibited in 42 U.S.C. 1320a-7b(b) (Criminal
penalties for acts involving Federal health care programs). Currently,
section 1320a-7b offenses are referenced in Appendix A to both
Sec. Sec. 2B1.1 and 2B4.1.
Part D of the proposed amendment would also amend the commentaries
to Sec. Sec. 2B1.1 and 2B4.1 to reflect that 18 U.S.C. 220 is
referenced to these guidelines.
An issue for comment is also provided.
Proposed Amendment
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 18 U.S.C. 224 the following new line reference:
``18 U.S.C. 220 2B1.1, 2B4.1''.
The Commentary to Sec. 2B1.1 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. 38'' and inserting ``18 U.S.C. 38,
220''.
The Commentary to Sec. 2B4.1 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. 215'' and inserting ``18 U.S.C. 215,
220''.
Issue for Comment
1. In response to the SUPPORT for Patients and Communities Act,
Part D of the proposed amendment would reference 18 U.S.C. 220 to
Sec. Sec. 2B1.1 (Theft, Property Destruction, and Fraud) and 2B4.1
(Bribery in Procurement of Bank Loan and Other Commercial Bribery). The
Commission seeks comment on whether these proposed references are
appropriate and whether any additional changes to the guidelines are
required to account for section 220's offense conduct. Specifically,
should the Commission amend Sec. 2B1.1 or Sec. 2B4.1 to provide a
higher or lower base offense level if 18 U.S.C. 220 is the offense of
conviction? If so, what should that base offense level be and why?
Should the Commission add a specific offense characteristic to any of
these guidelines in response to section 220? If so, what should that
specific offense characteristic provide and why?
(E) Amy, Vicky, and Andy Child Pornography Victim Assistance Act of
2018
Synopsis of Proposed Amendment: Part E of the proposed amendment
responds to the Amy, Vicky, and Andy Child Pornography Victim
Assistance Act of 2018, Public Law 115-299 (2018).
Among other things, the Act amended 18 U.S.C. 2259 (Mandatory
restitution), with respect to victims of child pornography, by adding a
new subsection (d). This new subsection permits any victim of child
pornography trafficking to receive ``defined monetary assistance'' from
the Child Pornography Victims Reserve when a defendant is convicted of
trafficking in child pornography. It also sets forth rules for
determining the amount of ``defined monetary assistance'' a victim may
receive and certain limitations relating to the effect of restitution
and on eligibility. In addition, new subsection (d)(4)(A) states that
that any attorney representing a victim seeking ``defined monetary
assistance'' may not charge, receive, or collect (nor may the court
approve) the payment of fees and costs that in the aggregate exceeds 15
percent of any payment made under new subsection (d) in general. It
also provides that an attorney who violates subsection (d)(4)(A) may be
subject to a statutory maximum term of imprisonment of not more than
one year. See 18 U.S.C. 2259(d)(4)(B).
Part E of the proposed amendment would amend Appendix A (Statutory
Index) to reference 18 U.S.C. 2259(d)(4) to Sec. 2X5.2 (Class A
Misdemeanors (Not Covered by Another Specific Offense Guideline)). It
would also amend the Commentary to Sec. 2X5.2 to reflect that 18
U.S.C. 2259(d)(4) is referenced to the guideline.
An issue for comment is also provided.
Proposed Amendment
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 18 U.S.C. 2260(a) the following new line reference:
``18 U.S.C. 2259(d)(4) 2X5.2''.
The Commentary to Sec. 2X5.2 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. 1365(f), 1801; 34 U.S.C. 12593; 49
U.S.C. 31310.'' and inserting ``18 U.S.C. 1365(f), 1801, 2259(d)(4); 34
U.S.C. 12593; 49 U.S.C. 31310. For additional statutory provision(s),
see Appendix A (Statutory Index).''.
Issue for Comment
1. In response to the Amy, Vicky, and Andy Child Pornography Victim
Assistance Act of 2018, Part E of the proposed amendment would amend
Appendix A (Statutory Index) to reference 18 U.S.C. 2259(d)(4) to Sec.
2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense
Guideline)). The Commission seeks comment on whether this proposed
reference is appropriate and whether any additional changes to the
guidelines are required to account for the new offense conduct at 18
U.S.C. 2259(d)(4).
(F) Foundations for Evidence-Based Policymaking Act of 2018
Synopsis of Proposed Amendment: Part F of the proposed amendment
responds to the Foundations for Evidence-Based Policymaking Act of
2018, Public Law 115-435 (2019).
This Act includes the Confidential Information Protection and
Statistical Efficiency Act of 2018, which added a new offense at 44
U.S.C. 3572 (Confidential information protection). Section 3572
prohibits the unauthorized disclosure of information collected by an
agency under a pledge of confidentiality and for exclusively
statistical purposes, or the use of such information for other than
statistical purposes. Any willful unauthorized disclosure of such
information by an officer, employee, or agent of an agency acquiring
information for exclusively statistical purposes is punishable by a
statutory maximum term of imprisonment of five years. See 44 U.S.C.
3572(f).
Part F of the proposed amendment would amend Appendix A (Statutory
Index) to reference 44 U.S.C. 3572 to Sec. 2H3.1 (Interception of
Communications; Eavesdropping; Disclosure of Certain Private or
Protected Information). Similar confidential information disclosure
offenses, such as 18 U.S.C. 1039 and 26 U.S.C. 7213(a), are referenced
to this guideline. Part F of the proposed amendment would also amend
the Commentary to Sec. 2H3.1 to reflect that 44 U.S.C. 3572 is
referenced to the guideline.
An issue for comment is also provided.
[[Page 7206]]
Proposed Amendment
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 45 U.S.C. 359(a) the following new line reference:
``44 U.S.C. 3572 2H3.1''.
The Commentary to Sec. 2H3.1 captioned ``Statutory Provisions'' is
amended by striking ``47 U.S.C. 605'' and inserting ``44 U.S.C. 3572;
47 U.S.C. 605''.
Issue for Comment
1. In response to the Foundations for Evidence-Based Policymaking
Act of 2018, Part F of the proposed amendment would reference 44 U.S.C.
3572 to Sec. 2H3.1 (Interception of Communications; Eavesdropping;
Disclosure of Certain Private or Protected Information). The Commission
seeks comment on whether this proposed reference is appropriate and
whether any additional changes to the guidelines are required to
account for section 3572's offense conduct. Specifically, should the
Commission amend Sec. 2H3.1 to provide a higher or lower base offense
level if 44 U.S.C. 3572 is the offense of conviction? If so, what
should that base offense level be and why? Should the Commission add a
specific offense characteristic to Sec. 2H3.1 in response to section
3572? If so, what should that specific offense characteristic provide
and why?
(G) National Defense Authorization Act for Fiscal Year 2020
Synopsis of Proposed Amendment: Part G of the proposed amendment
responds to the National Defense Authorization Act for Fiscal Year
2020, Public Law 116-92 (2019).
The Act added a new statute at 10 U.S.C. 2733a regarding medical
malpractice claims by members of the uniformed services. The new
statute authorizes the Secretary of Defense to allow, settle, and pay a
claim against the United States for personal injury or death that
occurred during the service of a member of the uniformed services and
that was caused by the medical malpractice of a health care provider of
the Department of Defense, if certain requirements are met. Under
section 2733a(c)(2), the Department of Defense is not liable for the
payment of attorney fees for a claim under the new statute. However,
section 2733(g)(1) prohibits any attorney from charging, demanding,
receiving, or collecting fees in excess of 20 percent of any claim paid
pursuant to the new statute. Any attorney who charges, demands,
receives, or collects a fee in excess of 20 percent faces a statutory
maximum term of imprisonment of not more than one year. See 10 U.S.C.
2733a(g)(2).
Part G of the proposed amendment would amend Appendix A (Statutory
Index) to reference 10 U.S.C. 2733a(g)(2) to Sec. 2X5.2 (Class A
Misdemeanors (Not Covered by Another Specific Offense Guideline)). It
would also amend the Commentary to Sec. 2X5.2 to reflect that 10
U.S.C. 2733a(g)(2) is referenced to the guideline.
An issue for comment is also provided.
Proposed Amendment
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 12 U.S.C. 631 the following new line reference:
``10 U.S.C. 2733a(g)(2) 2X5.2''.
The Commentary to Sec. 2X5.2 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. 1365(f), 1801; 34 U.S.C. 12593; 49
U.S.C. 31310.'' and inserting ``10 U.S.C. 2
[…truncated; see source link]Indexed from Federal Register on February 2, 2023.
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