Notice2023-28317
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
December 26, 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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[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Notices]
[Pages 89142-89217]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28317]
[[Page 89141]]
Vol. 88
Tuesday,
No. 246
December 26, 2023
Part III
United States Sentencing Commission
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Sentencing Guidelines for United States Courts; Notice
Federal Register / Vol. 88 , No. 246 / Tuesday, December 26, 2023 /
Notices
[[Page 89142]]
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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 February 22, 2024. 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 20002-8002, Attention:
Public Affairs--Proposed Amendments.
FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs
Specialist, (202) 502-4597.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day of May each
year pursuant to 28 U.S.C. 994(p).
Publication of a proposed amendment requires the affirmative vote
of at least three voting members of the Commission and is deemed to be
a request for public comment on the proposed amendment. See USSC Rules
of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote
of at least four voting members is required to promulgate an amendment
and submit it to Congress. See id. 2.2; 28 U.S.C. 994(p).
The 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. 2B1.1 (Theft, Property
Destruction, and Fraud) that would create Notes to the loss table in
Sec. 2B1.1(b)(1) and move some of the general rules relating to loss
from the commentary to the guideline itself as part of the Notes, as
well as make corresponding changes to the Commentary of certain
guidelines that refer to the loss rules in Sec. 2B1.1, and a related
issue for comment.
(2) A two-part proposed amendment relating to the provisions of
Sec. 4A1.2 (Definitions and Instructions for Computing Criminal
History) that cover criminal history calculations for offenses
committed prior to age eighteen and on Sec. 5H1.1 (Age (Policy
Statement)), including (A) three options for amending Sec. 4A1.2 to
change how sentences for offenses committed prior to age eighteen are
considered in the calculation of a defendant's criminal history score,
and related issues for comment; and (B) an amendment to Sec. 5H1.1 to
address unique sentencing considerations relating to youthful
individuals, and related issues for comment.
(3) A proposed amendment to the Guidelines Manual that includes
three options to address the use of acquitted conduct for purposes of
determining a sentence, and related issues for comment.
(4) A two-part proposed amendment addressing certain circuit
conflicts involving Sec. 2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition) and Sec. 2K2.4 (Use of Firearm,
Armor-Piercing Ammunition, or Explosive During or in Relation to
Certain Crimes), including (A) two options for amending Sec.
2K2.1(b)(4)(B)(i) to address a circuit conflict concerning whether a
serial number must be illegible in order to apply the 4-level increase
for a firearm that ``had an altered or obliterated serial number,'' and
a related issue for comment; and (B) amendments to the Commentary to
Sec. 2K2.4 to address a circuit conflict concerning whether subsection
(c) of Sec. 3D1.2 (Groups of Closely Related Counts) permits grouping
of a firearms count under 18 U.S.C. 922(g) with a drug trafficking
count, where the defendant also has a separate count under 18 U.S.C.
924(c) based on the drug trafficking count, and a related issue for
comment.
(5) A multi-part proposed amendment in response to recently enacted
legislation and miscellaneous guideline issues, including (A)
amendments to Appendix A (Statutory Index) and the Commentary to Sec.
2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage
Resources or Paleontological Resources; Unlawful Sale, Purchase,
Exchange, Transportation, or Receipt of Cultural Heritage Resources or
Paleontological Resources) in response to the Safeguard Tribal Objects
of Patrimony (``STOP'') Act of 2021, Public Law 117-258 (2022), and a
related issue for comment; (B) amendments to Appendix A and Sec. 2M5.1
(Evasion of
[[Page 89143]]
Export Controls; Financial Transactions with Countries Supporting
International Terrorism) in response to the Export Control Reform Act
of 2018, enacted as part of the John McCain National Defense
Authorization Act for Fiscal Year 2019, Public Law 115-232 (2018), and
to concerns raised by the Department of Justice and the Disruptive
Technology Strike Force (an interagency collaboration between the
Department of Justice's National Security Division and the Department
of Commerce's Bureau of Industry and Security), and related issues for
comment; (C) an amendment to subsection (b)(2)(B) of Sec. 2S1.3
(Structuring Transactions to Evade Reporting Requirements; Failure to
Report Cash or Monetary Transactions; Failure to File Currency and
Monetary Instrument Report; Knowingly Filing False Reports; Bulk Cash
Smuggling; Establishing or Maintaining Prohibited Accounts) to reflect
the enhanced penalty applicable to offenses under 31 U.S.C. 5322 and
5336; (D) amendments to Appendix A and the Commentary to Sec. 2R1.1
(Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among
Competitors) to replace references to 15 U.S.C. 3(b) with references to
15 U.S.C. 3(a); (E) two options for amending Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) to address a miscellaneous issue regarding the application
of the base offense levels at subsections (a)(1)-(a)(4); and (F) two
options for amending Sec. 4C1.1 (Adjustment for Certain Zero-Point
Offenders) to address concerns raised by the Department of Justice
relating to the scope of the definition of ``sex offense'' in
subsection (b)(2).
(6) A two-part proposed amendment to make technical and other non-
substantive changes to the Guidelines Manual, including (A) technical
and conforming changes relating to Sec. 4C1.1 (Adjustment for Certain
Zero-Point Offenders); and (B) technical and clerical changes to
several guidelines and their corresponding commentaries to add missing
headings to application notes; provide stylistic consistency in how
subdivisions are designated; provide consistency in the use of
capitalization; correct certain references and typographical errors;
and update an example in a Commentary that references 18 U.S.C. 924(c),
which was amended by the First Step Act of 2018, Public Law 115-391
(Dec. 21, 2018).
(7) A two-part proposed amendment to the Guidelines Manual,
including (A) request for public comment on whether any changes should
be made to the Guidelines Manual relating to the three-step process set
forth in Sec. 1B1.1 (Application Instructions) and the use of
departures and policy statements relating to specific personal
characteristics; and (B) amendments that would restructure the
Guidelines Manual to simplify both (1) the current three-step process
utilized in determining a sentence that is ``sufficient, but not
greater than necessary,'' and (2) existing guidance in the Guidelines
Manual regarding a court's consideration of the individual
circumstances of the defendant as well as certain offense
characteristics.
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>. In addition,
as required by 5 U.S.C. 553(b)(4), plain-language summaries of the
proposed amendments are available at <a href="https://www.ussc.gov/guidelines/amendments/proposed-2024-amendments-federal-sentencing-guidelines">https://www.ussc.gov/guidelines/amendments/proposed-2024-amendments-federal-sentencing-guidelines</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. Rule for Calculating Loss
Synopsis of Proposed Amendment: This proposed amendment is a result
of the Commission's continued study of the Guidelines Manual to address
case law concerning the validity and enforceability of guideline
commentary. See U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 88
FR 60536 (Sept. 1, 2023).
In Stinson v. United States, 508 U.S. 36, 38 (1993), the Supreme
Court held that commentary ``that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal statute,
or is inconsistent with, or a plainly erroneous reading of, that
guideline.'' In recent years, however, the deference afforded to
various guideline commentary provisions has been debated, particularly
since Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019), which limited
deference to agency interpretation of regulations to situations in
which the regulation is ``genuinely ambiguous.'' Applying Kisor, the
Third Circuit recently held that Application Note 3(A) of the
Commentary to Sec. 2B1.1 (Theft, Property Destruction, and Fraud) is
not entitled to deference. United States v. Banks, 55 F.4th 246 (3d
Cir. 2022).
Section 2B1.1 includes a loss table that increases the offense
level based on the amount of loss resulting from an offense. USSG Sec.
2B1.1(b)(1). Application Note 3(A) of the Commentary to Sec. 2B1.1
provides a general rule for courts to use to calculate loss for
purposes of the loss table. USSG Sec. 2B1.1, comment. (n.3(A)). Under
the rule, ``loss is the greater of actual loss or intended loss.'' Id.
The commentary then defines the terms ``actual loss,'' ``intended
loss,'' ``pecuniary harm,'' and ``reasonably foreseeable pecuniary
harm.'' USSG Sec. 2B1.1, comment. (n.3(A)(i)-(iv)). The commentary
also provides that ``[t]he court shall use the gain that resulted from
the offense as an alternative measure of loss only if there is a loss
but it reasonably cannot be determined.'' USSG Sec. 2B1.1, comment.
(n.3(B)).
In Banks, the Third Circuit held that ``the term `loss' is
unambiguous in the context of Sec. 2B1.1''--meaning ``actual loss''--
and that ``[b]ecause the commentary expands the definition of `loss' by
explaining that generally `loss
[[Page 89144]]
is the greater of actual loss or intended loss,' we accord the
commentary no weight.'' Banks, 55 F.4th at 253, 258. To date, the Third
Circuit is the only appellate court to reach this conclusion. However,
the loss calculations for defendants in this circuit are now computed
differently than in circuits that continue to apply Application Note
3(A).
The Commission estimates that approximately one-fifth of
individuals sentenced under Sec. 2B1.1 in fiscal year 2022 were
sentenced using intended loss. This estimate is based on the
Commission's review of a 30 percent representative sample of the 3,811
individuals sentenced under Sec. 2B1.1 in fiscal year 2022 with a
known, non-zero loss amount. Intended loss was used for sentencing in
19.8 percent of cases in the sample. Using these findings to
extrapolate to all Sec. 2B1.1 cases with a loss amount, the Commission
estimates that approximately 750 individuals were sentenced using
intended loss in fiscal year 2022. Of those 750 individuals,
approximately 50 were sentenced in the Third Circuit prior to the Banks
decision.
This proposed amendment would address the decision from the Third
Circuit regarding the validity and enforceability of Application Note
3(A) of the Commentary to Sec. 2B1.1 to ensure consistent loss
calculation across circuits.
The proposed amendment would create Notes to the loss table in
Sec. 2B1.1(b)(1) and move the general rule establishing loss as the
greater of actual loss or intended loss from the commentary to the
guideline itself as part of the Notes. The proposed amendment would
also move the rule providing for the use of gain as an alternative
measure of loss, as well as the definitions of ``actual loss,''
``intended loss,'' ``pecuniary harm,'' and ``reasonably foreseeable
pecuniary harm'' from the commentary to the Notes. In addition, the
proposed amendment would make corresponding changes to the Commentary
to Sec. Sec. 2B2.3 (Trespass), 2C1.1 (Offering, Giving, Soliciting, or
Receiving a Bribe; Extortion Under Color of Official Right; Fraud
Involving the Deprivation of the Intangible Right to Honest Services of
Public Officials; Conspiracy to Defraud by Interference with
Governmental Functions), and 8A1.2 (Application Instructions--
Organizations), which calculate loss by reference to the Commentary to
Sec. 2B1.1.
An issue for comment is also provided.
Proposed Amendment: Section 2B1.1(b)(1) is amended by inserting the
following at the end:
``*Notes to Table:
(A) Loss.--Loss is the greater of actual loss or intended loss.
(B) Gain.--The court shall use the gain that resulted from the
offense as an alternative measure of loss only if there is a loss but
it reasonably cannot be determined.
(C) For purposes of this guideline--
(i) `Actual loss' means the reasonably foreseeable pecuniary harm
that resulted from the offense.
(ii) `Intended loss' (I) means the pecuniary harm that the
defendant purposely sought to inflict; and (II) includes intended
pecuniary harm that would have been impossible or unlikely to occur
(e.g., as in a government sting operation, or an insurance fraud in
which the claim exceeded the insured value).
(iii) `Pecuniary harm' means harm that is monetary or that
otherwise is readily measurable in money. Accordingly, pecuniary harm
does not include emotional distress, harm to reputation, or other non-
economic harm.
(iv) `Reasonably foreseeable pecuniary harm' means pecuniary harm
that the defendant knew or, under the circumstances, reasonably should
have known, was a potential result of the offense.''.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 3--by striking subparagraphs (A) and (B) as follows:
``(A) General Rule.--Subject to the exclusions in subdivision (D),
loss is the greater of actual loss or intended loss.
(i) Actual Loss.--`Actual loss' means the reasonably foreseeable
pecuniary harm that resulted from the offense.
(ii) Intended Loss.--`Intended loss' (I) means the pecuniary harm
that the defendant purposely sought to inflict; and (II) includes
intended pecuniary harm that would have been impossible or unlikely to
occur (e.g., as in a government sting operation, or an insurance fraud
in which the claim exceeded the insured value).
(iii) Pecuniary Harm.--`Pecuniary harm' means harm that is monetary
or that otherwise is readily measurable in money. Accordingly,
pecuniary harm does not include emotional distress, harm to reputation,
or other non-economic harm.
(iv) Reasonably Foreseeable Pecuniary Harm.--For purposes of this
guideline, `reasonably foreseeable pecuniary harm' means pecuniary harm
that the defendant knew or, under the circumstances, reasonably should
have known, was a potential result of the offense.
(v) Rules of Construction in Certain Cases.--In the cases described
in subdivisions (I) through (III), reasonably foreseeable pecuniary
harm shall be considered to include the pecuniary harm specified for
those cases as follows:
(I) Product Substitution Cases.--In the case of a product
substitution offense, the reasonably foreseeable pecuniary harm
includes the reasonably foreseeable costs of making substitute
transactions and handling or disposing of the product delivered, or of
retrofitting the product so that it can be used for its intended
purpose, and the reasonably foreseeable costs of rectifying the actual
or potential disruption to the victim's business operations caused by
the product substitution.
(II) Procurement Fraud Cases.--In the case of a procurement fraud,
such as a fraud affecting a defense contract award, reasonably
foreseeable pecuniary harm includes the reasonably foreseeable
administrative costs to the government and other participants of
repeating or correcting the procurement action affected, plus any
increased costs to procure the product or service involved that was
reasonably foreseeable.
(III) Offenses Under 18 U.S.C. 1030.--In the case of an offense
under 18 U.S.C. 1030, actual loss includes the following pecuniary
harm, regardless of whether such pecuniary harm was reasonably
foreseeable: any reasonable cost to any victim, including the cost of
responding to an offense, conducting a damage assessment, and restoring
the data, program, system, or information to its condition prior to the
offense, and any revenue lost, cost incurred, or other damages incurred
because of interruption of service.
(B) Gain.--The court shall use the gain that resulted from the
offense as an alternative measure of loss only if there is a loss but
it reasonably cannot be determined.'';
inserting the following new subparagraph (A):
``(A) Rules of Construction in Certain Cases.--In the cases
described in clauses (i) through (iii), reasonably foreseeable
pecuniary harm shall be considered to include the pecuniary harm
specified for those cases as follows:
(i) Product Substitution Cases.--In the case of a product
substitution offense, the reasonably foreseeable pecuniary harm
includes the reasonably foreseeable costs of making substitute
transactions and handling or disposing of the product delivered, or of
[[Page 89145]]
retrofitting the product so that it can be used for its intended
purpose, and the reasonably foreseeable costs of rectifying the actual
or potential disruption to the victim's business operations caused by
the product substitution.
(ii) Procurement Fraud Cases.--In the case of a procurement fraud,
such as a fraud affecting a defense contract award, reasonably
foreseeable pecuniary harm includes the reasonably foreseeable
administrative costs to the government and other participants of
repeating or correcting the procurement action affected, plus any
increased costs to procure the product or service involved that was
reasonably foreseeable.
(iii) Offenses Under 18 U.S.C. 1030.--In the case of an offense
under 18 U.S.C. 1030, actual loss includes the following pecuniary
harm, regardless of whether such pecuniary harm was reasonably
foreseeable: any reasonable cost to any victim, including the cost of
responding to an offense, conducting a damage assessment, and restoring
the data, program, system, or information to its condition prior to the
offense, and any revenue lost, cost incurred, or other damages incurred
because of interruption of service.'';
and by redesignating subparagraphs (C), (D), (E), and (F) as
subparagraphs (B), (C), (D), and (E), respectively.
The Commentary to Sec. 2B2.3 captioned ``Application Notes'' is
amended in Note 2 by striking ``the Commentary to Sec. 2B1.1 (Theft,
Property Destruction, and Fraud)'' and inserting ``Sec. 2B1.1 (Theft,
Property Destruction, and Fraud) and the Commentary to Sec. 2B1.1''.
The Commentary to Sec. 2C1.1 captioned ``Application Notes'' is
amended in Note 3 by striking ``Application Note 3 of the Commentary to
Sec. 2B1.1 (Theft, Property Destruction, and Fraud)'' and inserting
``Sec. 2B1.1 (Theft, Property Destruction, and Fraud) and Application
Note 3 of the Commentary to Sec. 2B1.1''.
The Commentary to Sec. 8A1.2 captioned ``Application Notes'' is
amended in Note 3 by striking ``the Commentary to Sec. 2B1.1 (Theft,
Property Destruction, and Fraud)'' and inserting ``Sec. 2B1.1 (Theft,
Property Destruction, and Fraud) and the Commentary to Sec. 2B1.1''.
Issue for Comment:
1. As part of the Commission's priority to address case law
concerning the validity and enforceability of guideline commentary, the
proposed amendment would address the Third Circuit's decision regarding
the deference to be given to Application Note 3(A) of the Commentary to
Sec. 2B1.1 (Theft, Property Destruction, and Fraud). See United States
v. Banks, 55 F.4th 246 (3d Cir. 2022). The Commission's current
priorities also include the ``[e]xamination of the Guidelines Manual,
including exploration of ways to simplify the guidelines and possible
consideration of amendments that might be appropriate.'' See U.S.
Sent'g Comm'n, ``Notice of Final Priorities,'' 88 FR 60536 (Sept. 1,
2023). As part of that simplification priority, the Commission is
considering conducting a comprehensive examination of Sec. 2B1.1
during an upcoming amendment cycle.
The Commission seeks comment on whether it should adopt this
proposed amendment addressing Application Note 3(A) of the Commentary
to Sec. 2B1.1 during this amendment cycle, or whether it should defer
making changes to Sec. 2B1.1 and its commentary until a future
amendment cycle that may include a comprehensive examination of Sec.
2B1.1.
2. Youthful Individuals
Synopsis of Proposed Amendment: In September 2023, the Commission
identified as one of its policy priorities for the amendment cycle
ending May 1, 2024, an examination of the treatment of youthful
offenders and offenses involving youths under the Guidelines Manual,
including possible consideration of amendments that might be
appropriate. U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 88 FR
60536 (Sept. 1, 2023). As part of this priority, the Commission is
examining two provisions related to youthful individuals: (1)
subsection (d) of Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History), which covers criminal history calculations
for offenses committed prior to age eighteen; and (2) Sec. 5H1.1 (Age
(Policy Statement)), a departure provision related to age, including
youth. Section 4A1.2(d) is unchanged from the original guideline
enacted in 1987. Section 5H1.1 was last amended in 2010.
This proposed amendment contains two parts (Part A and Part B). The
Commission is considering whether to promulgate either or both parts,
as they are not mutually exclusive. Part A addresses the computation of
criminal history points for offenses committed prior to age eighteen.
Part B addresses the sentencing of youthful individuals.
Computing Criminal History for Offenses Committed Prior to Age Eighteen
Under Chapter Four, Part A (Criminal History), certain sentences
for offenses committed prior to age eighteen are considered in the
calculation of a defendant's criminal history score. The guidelines
distinguish between an ``adult sentence'' in which the defendant
committed the offense before age eighteen and was convicted as an
adult, and a ``juvenile sentence'' resulting from a juvenile
adjudication. See USSG Sec. 4A1.2(d).
The Commentary to Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History) provides that, to avoid disparities from
jurisdiction to jurisdiction in the age at which a defendant is
considered a ``juvenile,'' the rules set forth in Sec. 4A1.2(d) apply
to all offenses committed prior to age eighteen. See USSG Sec. 4A1.2,
comment. (n.7). The Commentary also states that ``[a]ttempting to count
every juvenile adjudication would have the potential for creating large
disparities due to the differential availability of records,'' and thus
only certain offenses committed prior to age eighteen are counted. Id.
Courts assign three criminal history points if a defendant was
convicted as an adult for an offense committed before age eighteen and
received a sentence of imprisonment exceeding one year and one month,
if the sentence was imposed, or the defendant was incarcerated, within
fifteen years of the commencement of the instant offense. See USSG
Sec. 4A1.2(d)(1), (e). Courts assign two criminal history points for
``each adult or juvenile sentence to confinement of at least sixty days
if the defendant was released from such confinement within five years
of his commencement of the instant offense.'' USSG Sec.
4A1.2(d)(2)(A). One criminal history point is added for ``each adult or
juvenile sentence imposed within five years of the defendant's
commencement of the instant offense not covered in (A).'' USSG Sec.
4A1.2(d)(2)(B).
Juvenile offenses are also addressed in two other places in Sec.
4A1.2. First, Sec. 4A1.2(c)(2) provides a list of certain offenses
that are ``never counted'' for purposes of the criminal history score,
including ``juvenile status offenses and truancy.'' Second, Sec.
4A1.2(f) provides that diversionary dispositions resulting from a
finding or admission of guilt, or a plea of nolo contendere, are
counted even if a conviction is not formally entered, but ``diversion
from juvenile court is not counted.''
With this proposed amendment, the Commission seeks to strike the
right balance between various considerations related to the sentencing
of youthful individuals, including difficulties in obtaining supporting
documentation for juvenile adjudications and in assessing
``confinement,'' recent brain development research, demographic
[[Page 89146]]
disparities, higher rearrest rates for younger individuals, and
protection of the public.
Juvenile Proceedings in General
Juvenile adjudications involve some procedural safeguards akin to
adult criminal proceedings (e.g., right to counsel, privilege against
self-incrimination), but not all criminal constitutional protections
apply. For example, in most states, juveniles are not entitled to a
jury trial, although some states provide juveniles with a jury trial
upon request. Additionally, ``[i]n 2019, there were 24 states with
statutes allowing delinquency adjudication hearings to be generally
open to the public,'' while ``[i]n the remaining states and the
District of Columbia the public is restricted from attending
delinquency adjudication hearings,'' with possible limited exceptions.
Charles Puzzanchera et al., Nat'l Ctr. for Juv. Just., Youth and the
Juvenile Justice System: 2022 National Report 93 (2022). Dispositions
of confinement and residential placement may also differ in manner and
purpose from adult sentences of incarceration. Residential placement
facilities vary in their degree of security and security features, with
some having a ``secure prison-like environment'' and others ``a more
open (even home-like) setting.'' Id. at 91. Almost all states and the
District of Columbia have statutes or case law providing that a
juvenile adjudication shall not be deemed a criminal conviction or
impose any civil disabilities that ordinarily result from an adult
conviction, though many states permit the use of juvenile adjudications
to enhance a subsequent sentence.
With respect to records of juvenile proceedings, practices vary by
state. Many states allow for sealing or expungement, though few states
seal or expunge such records automatically, instead requiring a motion.
See, e.g., Riya Saha Shah, et al., Juv. L. Ctr., A National Review of
State Laws on Confidentiality, Sealing and Expungement 36-39 (2014).
States often include various eligibility requirements for sealing or
expungement, such as that (1) a certain period of time has elapsed
since the case concluded or the juvenile completed any sentence of
supervision, (2) the person has not been convicted of certain types of
offenses, such as drug or sex offenses or offenses against persons,
and/or (3) the individual has reached a certain age. Id. at 32-35.
The determination of whether a person under the age of eighteen may
be tried as an adult varies by jurisdiction and often may be based on
certain offense types or a finding that the individual would not
benefit from the juvenile court. In 2019, 47 states allowed juvenile
court judges to make the transfer decision, 27 states had statutory
provisions that mandated transfer to criminal court for certain cases,
and 14 states gave prosecutors discretion on where to file charges.
Puzzanchera et al., supra, at 95-97. States vary with respect to the
minimum age at which an individual can be transferred to criminal court
to be tried as an adult; where specified, the minimum age ranges from
ten to sixteen. Id. at 97-99. For juveniles who had been tried as
adults, 35 states had ``once an adult, always an adult'' provisions
requiring that they be prosecuted in criminal court for any subsequent
offense. Id. at 95-96.
Sentencing of Youthful Individuals
Chapter Five, Part H (Specific Offender Characteristics) sets forth
policy statements addressing the relevance of certain specific offender
characteristics in sentencing. Specifically, Sec. 5H1.1 (Age (Policy
Statement)) provides, in relevant part, that ``[a]ge (including youth)
may be relevant in determining whether a departure is warranted, if
considerations based on age, individually or in combination with other
offender characteristics, are present to an unusual degree and
distinguish the case from the typical cases covered by the
guidelines.''
Studies on Age and Brain Development
Research has shown that brain development continues until the mid-
20s on average, potentially contributing to impulsive actions and
reward-seeking behavior, although a more precise age would have to be
determined on an individualized basis. See, e.g., U.S. Sent'g Comm'n,
Youthful Offenders in the Federal System 6-7 (2017); Daniel Romer et
al., Beyond Stereotypes of Adolescent Risk Taking: Placing the
Adolescent Brain in Developmental Context, 27 Developmental Cognitive
Neuroscience 19 (2017); Laurence Steinberg & Grace Icenogle, Using
Developmental Science to Distinguish Adolescents and Adults Under the
Law, 1 Ann. Rev. Developmental Psych. 21 (2019).
Studies on Age and Rearrest Rates
Research has shown a correlation between age and rearrest rates,
with younger individuals being rearrested at higher rates, and sooner
after release, than older individuals. See Ryan Cotter, Courtney
Semisch & David Rutter, U.S. Sent'g Comm'n, Recidivism of Federal
Offenders Released in 2010 (2021); see also Kim Steven Hunt & Billy
Easley II, U.S. Sent'g Comm'n, The Effects of Aging on Recidivism Among
Federal Offenders (2017).
Part A of the Proposed Amendment
Part A of the proposed amendment sets forth three options to change
how sentences for offenses committed prior to age eighteen are
considered in the calculation of a defendant's criminal history score.
Option 1 would amend Sec. 4A1.2(d)(2)(A) to exclude juvenile
sentences from receiving two criminal history points, limiting this
provision to adult sentences of imprisonment of at least 60 days. As a
result, juvenile sentences, including those that involved confinement,
would receive at most one criminal history point under Sec.
4A1.2(d)(2)(B). In addition, Option 1 would amend Sec. 4A1.2(k)(2)(B)
to explain how the applicable time period for revocations would work in
light of the proposed changes. Finally, Option 1 would make conforming
changes to the Commentary to Sec. Sec. 4A1.2 and 4A1.1.
Option 2 would amend Sec. 4A1.2(d) to exclude all juvenile
sentences from being considered in the calculation of the criminal
history score. It also includes bracketed language providing that such
sentences may be considered for purposes of an upward departure under
Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History
Category (Policy Statement)). In addition, Option 2 would amend Sec.
4A1.2(k)(2)(B) to explain how the applicable time period for
revocations would work in light of the proposed changes. It also would
amend Sec. 4A1.2(c)(2) to delete the reference to ``juvenile status
offenses and truancy'' and amend Sec. 4A1.2(f) to delete the reference
to ``diversion from juvenile court.'' Finally, Option 2 would make
conforming changes to the Commentary to Sec. Sec. 4A1.2 and 4A1.1.
Option 3 would amend Sec. 4A1.2(d) to exclude all sentences
resulting from offenses committed prior to age eighteen from being
considered in the calculation of the criminal history score. It also
includes bracketed language providing that such sentences may be
considered for purposes of an upward departure under Sec. 4A1.3. In
addition, Option 3 would amend Sec. 4A1.2(e) and (k) to delete all
references to sentences resulting from offenses committed prior to age
eighteen. It also would amend Sec. 4A1.2(c)(2) to delete the reference
to ``juvenile status offenses and truancy'' and amend Sec. 4A1.2(f) to
delete the reference to ``diversion from juvenile court.''
Additionally, Option 3 would
[[Page 89147]]
make conforming changes to the Commentary to Sec. Sec. 4A1.2 and
4A1.1.
Finally, Option 3 would make changes to the Commentary to
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), and 2L1.2 (Unlawfully Entering or Remaining in the United
States), and to subsection (e)(4) of Sec. 4B1.2 (Definitions of Terms
Used in Section 4B1.1), to delete references to convictions for
offenses committed prior to age eighteen being used to increase offense
levels.
Issues for comment are provided.
Part B of the Proposed Amendment
Part B of the proposed amendment would amend the first sentence in
Sec. 5H1.1 to delete ``(including youth)'' and ``if considerations
based on age, individually or in combination with other offender
characteristics, are present to an unusual degree and distinguish the
case from the typical cases covered by the guidelines.'' Thus, the
first sentence in Sec. 5H1.1 would provide solely that ``[a]ge may be
relevant in determining whether a departure is warranted.'' It would
also add language specifically providing for a downward departure for
cases in which the defendant was youthful at the time of the offense
and set forth considerations for the court in determining whether a
departure based on youth is warranted.
Issues for comment are provided.
(A) Computing Criminal History for Offenses Committed Prior to Age
Eighteen
Proposed Amendment:
[Option 1 (Deleting the references to juvenile sentences that
require a determination of ``confinement''):
Section 4A1.2(d)(2)(A) is amended by striking: ``add 2 points under
Sec. 4A1.1(b) for each adult or juvenile sentence to confinement of at
least sixty days if the defendant was released from such confinement
within five years of his commencement of the instant offense'' and
inserting ``add 2 points under Sec. 4A1.1(b) for each adult sentence
of imprisonment of at least sixty days that resulted in the defendant
being incarcerated within five years of his commencement of the instant
offense''.
Section 4A1.2(k)(2)(B) is amended by striking ``in the case of any
other confinement sentence for an offense committed prior to the
defendant's eighteenth birthday, the date of the defendant's last
release from confinement on such sentence (see Sec. 4A1.2(d)(2)(A))''
and inserting ``in the case of an adult term of imprisonment of at
least sixty days for an offense committed prior to the defendant's
eighteenth birthday, the date of the defendant's last release from
incarceration on such sentence (see Sec. 4A1.2(d)(2)(A))''.
The Commentary to Sec. 4A1.2 captioned ``Application Notes'' is
amended in Note 7 by striking ``Therefore, for offenses committed prior
to age eighteen, only those that resulted in adult sentences of
imprisonment exceeding one year and one month, or resulted in
imposition of an adult or juvenile sentence or release from confinement
on that sentence within five years of the defendant's commencement of
the instant offense are counted'' and inserting ``Therefore, for
offenses committed prior to age eighteen, only certain adult or
juvenile sentences are counted''.
The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is
amended in Note 2 by striking ``An adult or juvenile sentence imposed
for an offense committed prior to the defendant's eighteenth birthday
is counted only if confinement resulting from such sentence extended
into the five-year period preceding the defendant's commencement of the
instant offense'' and inserting ``An adult sentence imposed for an
offense committed prior to the defendant's eighteenth birthday is
counted only if the defendant's incarceration resulting from such
sentence extended into the five-year period preceding the defendant's
commencement of the instant offense''.]
[Option 2 (Deleting all references to juvenile sentences as part of
the criminal history calculation rules):
Section 4A1.2(c)(2) is amended by striking ``Juvenile status
offenses and truancy''.
Section 4A1.2(d) is amended--
in paragraph (2)(A) by striking: ``add 2 points under Sec.
4A1.1(b) for each adult or juvenile sentence to confinement of at least
sixty days if the defendant was released from such confinement within
five years of his commencement of the instant offense'' and inserting
``add 2 points under Sec. 4A1.1(b) for each adult sentence of
imprisonment of at least sixty days that resulted in the defendant
being incarcerated within five years of his commencement of the instant
offense'';
in paragraph (2)(B) by striking ``adult or juvenile sentence'' and
inserting ``adult sentence'';
and by inserting at the end the following new paragraph (3):
``(3) Sentences resulting from juvenile adjudications are not
counted[, but may be considered under Sec. 4A1.3 (Departures Based on
Inadequacy of Criminal History Category (Policy Statement))].''.
Section 4A1.2(f) is amended by striking ``, except that diversion
from juvenile court is not counted''.
Section 4A1.2(k)(2)(B) is amended by striking ``in the case of any
other confinement sentence for an offense committed prior to the
defendant's eighteenth birthday, the date of the defendant's last
release from confinement on such sentence (see Sec. 4A1.2(d)(2)(A))''
and inserting ``in the case of an adult term of imprisonment of at
least sixty days for an offense committed prior to the defendant's
eighteenth birthday, the date of the defendant's last release from
incarceration on such sentence (see Sec. 4A1.2(d)(2)(A))''.
The Commentary to Sec. 4A1.2 captioned ``Application Notes'' is
amended in Note 7 by striking the following:
``Offenses Committed Prior to Age Eighteen.--Section 4A1.2(d)
covers offenses committed prior to age eighteen. Attempting to count
every juvenile adjudication would have the potential for creating large
disparities due to the differential availability of records. Therefore,
for offenses committed prior to age eighteen, only those that resulted
in adult sentences of imprisonment exceeding one year and one month, or
resulted in imposition of an adult or juvenile sentence or release from
confinement on that sentence within five years of the defendant's
commencement of the instant offense are counted. To avoid disparities
from jurisdiction to jurisdiction in the age at which a defendant is
considered a `juvenile,' this provision applies to all offenses
committed prior to age eighteen.'';
and inserting the following:
``Offenses Committed Prior to Age Eighteen.--Section 4A1.2(d)
covers offenses committed prior to age eighteen. Offenses prior to age
eighteen are counted only if the defendant was convicted and sentenced
as an adult. If the defendant was convicted as an adult for an offense
committed before age eighteen and received a sentence exceeding one
year and one month, Sec. 4A1.2(e) provides the applicable time period
for counting the sentence. All other adult sentences for offenses
committed prior to age eighteen are counted in accordance with Sec.
4A1.2(d)(2).''.
The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is
amended--
[[Page 89148]]
in Note 2 by striking ``An adult or juvenile sentence imposed for
an offense committed prior to the defendant's eighteenth birthday is
counted only if confinement resulting from such sentence extended into
the five-year period preceding the defendant's commencement of the
instant offense'' and inserting ``An adult sentence imposed for an
offense committed prior to the defendant's eighteenth birthday is
counted only if the defendant's incarceration resulting from such
sentence extended into the five-year period preceding the defendant's
commencement of the instant offense'';
and in Note 3 by striking ``An adult or juvenile sentence'' and
inserting ``An adult sentence''.]
[Option 3 (Deleting all criminal history rules requiring counting
of offenses committed prior to age eighteen):
Section 4A1.2(c)(2) is amended by striking ``Juvenile status
offenses and truancy''.
Section 4A1.2(d) is amended by striking the following:
``(1) If the defendant was convicted as an adult and received a
sentence of imprisonment exceeding one year and one month, add 3 points
under Sec. 4A1.1(a) for each such sentence.
(2) In any other case,
(A) add 2 points under Sec. 4A1.1(b) for each adult or juvenile
sentence to confinement of at least sixty days if the defendant was
released from such confinement within five years of his commencement of
the instant offense;
(B) add 1 point under Sec. 4A1.1(c) for each adult or juvenile
sentence imposed within five years of the defendant's commencement of
the instant offense not covered in (A).'';
and inserting the following:
``Sentences resulting from offenses committed prior to age eighteen
are not counted[, but may be considered under Sec. 4A1.3 (Departures
Based on Inadequacy of Criminal History Category (Policy
Statement))].''.
Section 4A1.2(e) is amended by striking paragraph (4) as follows:
``(4) The applicable time period for certain sentences resulting
from offenses committed prior to age eighteen is governed by Sec.
4A1.2(d)(2).''.
Section 4A1.2(f) is amended by striking ``, except that diversion
from juvenile court is not counted''.
Section 4A1.2(k)(2) is amended by striking the following:
``Revocation of probation, parole, supervised release, special
parole, or mandatory release may affect the time period under which
certain sentences are counted as provided in Sec. 4A1.2(d)(2) and (e).
For the purposes of determining the applicable time period, use the
following: (A) in the case of an adult term of imprisonment totaling
more than one year and one month, the date of last release from
incarceration on such sentence (see Sec. 4A1.2(e)(1)); (B) in the case
of any other confinement sentence for an offense committed prior to the
defendant's eighteenth birthday, the date of the defendant's last
release from confinement on such sentence (see Sec. 4A1.2(d)(2)(A));
and (C) in any other case, the date of the original sentence (see Sec.
4A1.2(d)(2)(B) and (e)(2)).'';
and inserting the following:
``Revocation of probation, parole, supervised release, special
parole, or mandatory release may affect the time period under which
certain sentences are counted as provided in Sec. 4A1.2(e). For the
purposes of determining the applicable time period, use the following:
(A) in the case of an adult term of imprisonment totaling more than one
year and one month, the date of last release from incarceration on such
sentence (see Sec. 4A1.2(e)(1)); and (B) in any other case, the date
of the original sentence (see Sec. 4A1.2(e)).''.
The Commentary to Sec. 4A1.2 captioned ``Application Notes'' is
amended--
in Note 7 by striking the following:
``Offenses Committed Prior to Age Eighteen.--Section 4A1.2(d)
covers offenses committed prior to age eighteen. Attempting to count
every juvenile adjudication would have the potential for creating large
disparities due to the differential availability of records. Therefore,
for offenses committed prior to age eighteen, only those that resulted
in adult sentences of imprisonment exceeding one year and one month, or
resulted in imposition of an adult or juvenile sentence or release from
confinement on that sentence within five years of the defendant's
commencement of the instant offense are counted. To avoid disparities
from jurisdiction to jurisdiction in the age at which a defendant is
considered a `juvenile,' this provision applies to all offenses
committed prior to age eighteen.'';
and inserting the following:
``Offenses Committed Prior to Age Eighteen.--Sentences resulting
from offenses committed prior to age eighteen are not counted.
[Nonetheless, the criminal conduct underlying any conviction resulting
from offenses committed prior to age eighteen may be considered
pursuant to Sec. 4A1.3 (Departures Based on Inadequacy of Criminal
History Category (Policy Statement)).]'';
and in Note 8 by striking ``Section 4A1.2(d)(2) and (e) establishes
the time period within which prior sentences are counted. As used in
Sec. 4A1.2(d)(2) and (e), the term `commencement of the instant
offense' includes any relevant conduct'' and inserting ``Section
4A1.2(e) establishes the time period within which prior sentences are
counted. As used in Sec. 4A1.2(e), the term `commencement of the
instant offense' includes any relevant conduct''.
The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is
amended--
in note 1 by striking ``A sentence imposed for an offense committed
prior to the defendant's eighteenth birthday is counted under this
subsection only if it resulted from an adult conviction'' and inserting
``A sentence imposed for an offense committed prior to the defendant's
eighteenth birthday is not counted'';
in Note 2 by striking ``An adult or juvenile sentence imposed for
an offense committed prior to the defendant's eighteenth birthday is
counted only if confinement resulting from such sentence extended into
the five-year period preceding the defendant's commencement of the
instant offense'' and inserting ``A sentence imposed for an offense
committed prior to the defendant's eighteenth birthday is not
counted'';
and in Note 3 by striking ``An adult or juvenile sentence imposed
for an offense committed prior to the defendant's eighteenth birthday
is counted only if imposed within five years of the defendant's
commencement of the current offense'' and inserting ``A sentence
imposed for an offense committed prior to the defendant's eighteenth
birthday is not counted''.
The Commentary to Sec. 2K1.3 captioned ``Application Notes'' is
amended in Note 2, in the paragraph that begins '' `Felony conviction'
means'', by striking ``A conviction for an offense committed prior to
age eighteen years is an adult conviction if it is classified as an
adult conviction under the laws of the jurisdiction in which the
defendant was convicted (e.g., a federal conviction for an offense
committed prior to the defendant's eighteenth birthday is an adult
conviction if the defendant was expressly proceeded against as an
adult).''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended in Note 1, in the paragraph that begins '' `Felony conviction'
means'', by striking ``A conviction for an offense committed prior to
age eighteen years is an adult conviction if it is classified as an
adult conviction under the laws of the jurisdiction in which the
defendant was convicted (e.g., a federal conviction for an offense
committed prior to the
[[Page 89149]]
defendant's eighteenth birthday is an adult conviction if the defendant
was expressly proceeded against as an adult).''.
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is
amended in Note 1 by striking the following:
``In General.--
(A) `Ordered Deported or Ordered Removed from the United States for
the First Time'.--For purposes of this guideline, a defendant shall be
considered `ordered deported or ordered removed from the United States'
if the defendant was ordered deported or ordered removed from the
United States based on a final order of exclusion, deportation, or
removal, regardless of whether the order was in response to a
conviction. `For the first time' refers to the first time the defendant
was ever the subject of such an order.
(B) Offenses Committed Prior to Age Eighteen.--Subsections (b)(1),
(b)(2), and (b)(3) do not apply to a conviction for an offense
committed before the defendant was eighteen years of age unless such
conviction is classified as an adult conviction under the laws of the
jurisdiction in which the defendant was convicted.'';
and inserting the following:
`` `Ordered Deported or Ordered Removed from the United States for
the First Time'.--For purposes of this guideline, a defendant shall be
considered `ordered deported or ordered removed from the United States'
if the defendant was ordered deported or ordered removed from the
United States based on a final order of exclusion, deportation, or
removal, regardless of whether the order was in response to a
conviction. `For the first time' refers to the first time the defendant
was ever the subject of such an order.''.
Section 4B1.2(e)(4) is amended by striking ``A conviction for an
offense committed prior to age eighteen is an adult conviction if it is
classified as an adult conviction under the laws of the jurisdiction in
which the defendant was convicted (e.g., a federal conviction for an
offense committed prior to the defendant's eighteenth birthday is an
adult conviction if the defendant was expressly proceeded against as an
adult).''.]
Issues for Comment:
1. The Commission seeks general comment on juvenile court systems
and sentencing of youthful individuals. In particular, the Commission
requests input on: (a) how different jurisdictions sentence younger
individuals (e.g., youthful rehabilitation statutes); (b) how judges
make decisions regarding residential placement or confinement upon an
adjudication of guilt; (c) the factors that influence transfer to adult
court for offenses committed prior to age eighteen; (d) racial
disparities; and (e) practices related to expungement and sealing of
records in different jurisdictions. For example, are there particular
research studies, experts, or practitioners that the Commission should
consult?
2. The Commission seeks comment on whether it should make any of
the changes set forth in Part A of the proposed amendment with respect
to juvenile sentences and sentences for offenses committed prior to age
eighteen for purposes of Chapter Four, Part A (Criminal History).
Should the Commission limit any of the options based on: (a) the type
of crime involved in the offense committed prior to age eighteen; (b)
the age of the individual at the time of the offense committed prior to
age eighteen; or (c) any other factor? Should the Commission consider
an alternative approach in accounting for offenses committed prior to
age eighteen, such as a downward departure?
3. If the Commission were to promulgate Option 2 (exclude juvenile
sentences) or Option 3 (exclude all sentences for offenses committed
prior to age eighteen) in Part A of the proposed amendment, should the
Commission provide that any such sentence may be considered for
purposes of an upward departure under Sec. 4A1.3 (Departures Based on
Inadequacy of Criminal History Category (Policy Statement)) as provided
in the bracketed language? If so, should the Commission limit the
consideration of such departures to certain offenses?
4. Option 3 would amend subsection (d) of Sec. 4A1.2 (Definitions
and Instructions for Computing Criminal History) to exclude all
sentences resulting from offenses committed prior to age eighteen from
being considered in the calculation of the criminal history score. This
change would impact the use of predicate offenses in multiple
guidelines, including 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), 2L1.2 (Unlawfully Entering or
Remaining in the United States), and 4B1.2 (Definitions of Terms Used
in Section 4B1.1). Some of these guideline provisions were promulgated
in response to directives, such as 28 U.S.C. 994(h). The Commission
invites comment on whether Option 3 exceeds the Commission's authority
under 28 U.S.C. 994(h) or any other congressional directives.
5. If the Commission were to promulgate any of the options in Part
A of the proposed amendment and amend subsection (d) of Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History), should
the Commission make any changes to Sec. 3B1.4 (Using a Minor to Commit
a Crime)? If so, what changes should the Commission make? For example,
should the Commission expand the scope of application or increase the
magnitude of the adjustment? If so, how?
(B) Sentencing of Youthful Individuals
Proposed Amendment:
Section 5H1.1 is amended by striking the following:
``Age (including youth) may be relevant in determining whether a
departure is warranted, if considerations based on age, individually or
in combination with other offender characteristics, are present to an
unusual degree and distinguish the case from the typical cases covered
by the guidelines. Age may be a reason to depart downward in a case in
which the defendant is elderly and infirm and where a form of
punishment such as home confinement might be equally efficient as and
less costly than incarceration. Physical condition, which may be
related to age, is addressed at Sec. 5H1.4 (Physical Condition,
Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).'';
and inserting the following:
``Age may be relevant in determining whether a departure is
warranted. Age may be a reason to depart downward in a case in which
the defendant is elderly and infirm and where a form of punishment such
as home confinement might be equally efficient as and less costly than
incarceration. A downward departure also may be warranted due to the
defendant's youthfulness at the time of the offense. In an appropriate
case, the court may consider whether a form of punishment other than
imprisonment might be sufficient to meet the purposes of sentencing. In
determining whether a departure based on youth is warranted, and the
extent of such departure, the court should consider the following:
(1) Scientific studies on brain development showing that
psychosocial maturity, which involves impulse control, risk assessment,
decision-making, and resistance to peer pressure, is generally not
developed until the mid-20s.
(2) Research showing a correlation between age and rearrest rates,
with younger individuals rearrested at higher
[[Page 89150]]
rates and sooner after release than older individuals.
Physical condition, which may be related to age, is addressed at
Sec. 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence
or Abuse; Gambling Addiction).''.
Issues for Comment:
1. The Commission seeks general comment on sentencing of younger
individuals, including how to balance brain development research
suggesting potentially lower culpability with research on higher
rearrest rates and potential dangerousness. The Commission further
seeks comment on any relevant developments in legal or scientific
literature relating to the impact of brain development and age on
youthful criminal behavior. For example, are there particular research
studies, experts, or practitioners that the Commission should consult?
2. The Commission seeks comment on whether it should amend Sec.
5H1.1 (Age (Policy Statement)) as set forth in Part B of the proposed
amendment or otherwise change the provision in any other way with
respect to youthful individuals. Should the Commission include
additional or different factors for courts to consider in determining
whether a downward departure based on youth may be warranted?
3. Acquitted Conduct
Synopsis of Proposed Amendment: This proposed amendment is a result
of the Commission's consideration of possible amendments to the
Guidelines Manual to prohibit the use of acquitted conduct in applying
the guidelines. See U.S. Sent'g Comm'n, ``Notice of Final Priorities,''
88 FR 60536 (Sept. 1, 2023).
Acquitted conduct is not expressly addressed in the Guidelines
Manual, except for a reference in the parenthetical summary of the
holding in United States v. Watts, 519 U.S. 148 (1997). See USSG Sec.
6A1.3, comment. However, consistent with the Supreme Court's holding in
Watts, consideration of acquitted conduct is permitted under the
guidelines through the operation of Sec. 1B1.3 (Relevant Conduct
(Factors that Determine the Guideline Range)), in conjunction with
Sec. 1B1.4 (Information to be Used in Imposing Sentence) and Sec.
6A1.3 (Resolution of Disputed Factors (Policy Statement)).
Section 1B1.3 sets forth the principles and limits of sentencing
accountability for purposes of determining a defendant's guideline
range, a concept referred to as ``relevant conduct.'' Relevant conduct
impacts nearly every aspect of guidelines application, including the
determination of: base offense levels where more than one level is
provided, specific offense characteristics, and any cross references in
Chapter Two (Offense Conduct); any adjustments in Chapter Three
(Adjustment); and certain departures and adjustments in Chapter Five
(Determining the Sentence).
Specifically, Sec. 1B1.3(a)(1) provides that relevant conduct
comprises ``all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the
defendant,'' and all acts and omissions of others ``in the case of a
jointly undertaken criminal activity,'' that ``occurred during the
commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or
responsibility for that offense.''
Relevant conduct also includes, for some offense types, ``all acts
and omissions described in subdivisions (1)(A) and (1)(B) above that
were part of the same course of conduct or common scheme or plan as the
offense of conviction,'' ``all harm that resulted from the acts and
omissions specified in subsections (a)(1) and (a)(2) above, and all
harm that was the object of such acts and omissions,'' and ``any other
information specified in the applicable guideline.'' See USSG Sec.
1B1.3(a)(2)-(a)(4). The background commentary to Sec. 1B1.3 explains
that ``[c]onduct that is not formally charged or is not an element of
the offense of conviction may enter into the determination of the
applicable guideline sentencing range.''
The Guidelines Manual also includes Chapter Six, Part A (Sentencing
Procedures) addressing sentencing procedures that are applicable in all
cases. Specifically, Sec. 6A1.3 provides for resolution of any
reasonably disputed factors important to the sentencing determination.
Section 6A1.3(a) provides, in pertinent part, that ``[i]n resolving any
dispute concerning a factor important to sentencing determination, the
court may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial, provided
that the information has sufficient indicia of reliability to support
its probable accuracy.'' The Commentary to Sec. 6A1.3 instructs that
``[i]n determining the relevant facts, sentencing judges are not
restricted to information that would be admissible at trial'' and that
``[a]ny information may be considered'' so long as it has sufficient
indicia of reliability to support its probable accuracy. The Commentary
cites to 18 U.S.C. 3661 and Supreme Court case law upholding the
sentencing court's discretion in considering any information at
sentencing, so long as it is proved by a preponderance of the evidence.
Consistent with the Supreme Court case law, the Commentary also
provides that ``[t]he Commission believes that use of a preponderance
of the evidence standard is appropriate to meet due process
requirements and policy concerns in resolving disputes regarding
application of the guidelines to the facts of a case.''
In fiscal year 2022, nearly all sentenced individuals (62,529;
97.5%) were convicted through a guilty plea. The remaining 1,613
sentenced individuals (2.5% of all sentenced individuals) were
convicted and sentenced after a trial, and 286 of those sentenced
individuals (0.4% of all sentenced individuals) were acquitted of at
least one offense or found guilty of only a lesser included offense.
The proposed amendment would amend the Guidelines Manual to address
the use of acquitted conduct for purposes of determining a sentence.
Three options are presented.
Option 1 would amend Sec. 1B1.3 to add a new subsection (c)
providing that acquitted conduct is not relevant conduct for purposes
of determining the guideline range. It would define ``acquitted
conduct'' as conduct [underlying] [constituting an element of] a charge
of which the defendant has been acquitted by the trier of fact in
federal court or upon a motion of acquittal pursuant to Rule 29 of the
Federal Rules of Criminal Procedure. It brackets possible language that
would exclude from the definition of ``acquitted conduct'' conduct
establishing, in whole or in part, the instant offense of conviction
that was admitted by the defendant during a guilty plea colloquy or
found by the trier of fact beyond a reasonable doubt. The proposed
amendment further brackets the possibility of clarifying that such
conduct is excluded from the definition regardless of whether the
conduct also underlies a charge of which the defendant has been
acquitted.
Option 1 would also amend the Commentary to Sec. 6A1.3 (Resolution
of Disputed Factors (Policy Statement)) to make conforming revisions
addressing the use of acquitted conduct for purposes of determining the
guideline range.
Option 2 would amend the Commentary to Sec. 1B1.3 to add a new
application note providing that a downward departure may be warranted
if the use of acquitted conduct has a disproportionate impact in
determining the guideline range relative to the offense of conviction.
It brackets the possibility of limiting the departure's application to
cases in which the impact
[[Page 89151]]
is ``extremely'' disproportionate. It clarifies in a parenthetical that
acquitted conduct is conduct [underlying] [constituting an element of]
a charge of which the defendant has been acquitted by the trier of fact
in federal court or upon a motion of acquittal pursuant to Rule 29 of
the Federal Rules of Criminal Procedure.
Option 3 would amend Sec. 6A1.3 to add a new subsection (c)
addressing the standard of proof required to resolve disputes involving
sentencing factors. It provides that a preponderance of the evidence
standard generally is appropriate to meet due process requirements and
policy concerns in resolving such disputes. However, it further
provides that acquitted conduct should not be considered unless it is
established by clear and convincing evidence.
It would define ``acquitted conduct'' as conduct [underlying]
[constituting an element of] a charge of which the defendant has been
acquitted by the trier of fact in federal court or upon a motion of
acquittal pursuant to Rule 29 of the Federal Rules of Criminal
Procedure.
Option 3 would also make conforming changes to the Commentary of
Sec. Sec. 6A1.3 and 1B1.3.
Issues for comment are also provided.
Proposed Amendment:
[Option 1 (Acquitted conduct excluded from guideline range):
Section 1B1.3 is amended--
in subsection (a), in the heading, by striking ``Chapters Two
(Offense Conduct) and Three (Adjustments).'' and inserting ``Chapters
Two (Offense Conduct) and Three (Adjustments).--'';
in subsection (b), in the heading, by striking ``Chapters Four
(Criminal History and Criminal Livelihood) and Five (Determining the
Sentence).'' and inserting ``Chapters Four (Criminal History and
Criminal Livelihood) and Five (Determining the Sentence).--'';
and by inserting at the end the following new subsection (c):
``(c) Acquitted Conduct.--
(1) Exclusion.--Acquitted conduct is not relevant conduct for
purposes of determining the guideline range.
(2) Definition of Acquitted Conduct.--`Acquitted conduct' means
conduct (i.e., any acts or omission) [underlying] [constituting an
element of] a charge of which the defendant has been acquitted by the
trier of fact in federal court or upon a motion of acquittal pursuant
to Rule 29 of the Federal Rules of Criminal Procedure.
[`Acquitted conduct' does not include conduct that--
(A) was admitted by the defendant during a guilty plea colloquy; or
(B) was found by the trier of fact beyond a reasonable doubt;
to establish, in whole or in part, the instant offense of
conviction[, regardless of whether such conduct also underlies a charge
of which the defendant has been acquitted].]''.
The Commentary to Sec. 6A1.3 is amended--
by striking ``see also United States v. Watts, 519 U.S. 148, 154
(1997) (holding that lower evidentiary standard at sentencing permits
sentencing court's consideration of acquitted conduct); Witte v. United
States, 515 U.S. 389, 399-401 (1995) (noting that sentencing courts
have traditionally considered wide range of information without the
procedural protections of a criminal trial, including information
concerning criminal conduct that may be the subject of a subsequent
prosecution);'' and inserting ``Witte v. United States, 515 U.S. 389,
397-401 (1995) (noting that sentencing courts have traditionally
considered a wide range of information without the procedural
protections of a criminal trial, including information concerning
uncharged criminal conduct, in sentencing a defendant within the range
authorized by statute);'';
by striking ``Watts, 519 U.S. at 157'' and inserting ``Witte, 515
U.S. at 399-401'';
and by inserting at the end of the paragraph that begins ``The
Commission believes that use of a preponderance of the evidence
standard'' the following: ``Acquitted conduct, however, is not relevant
conduct for purposes of determining the guideline range. See subsection
(c) of Sec. 1B1.3 (Relevant Conduct). The court is not precluded from
considering acquitted conduct in determining the sentence to impose
within the guideline range, or whether a departure from the guidelines
is warranted. See Sec. 1B1.4 (Information to be Used in Imposing a
Sentence (Selecting a Point Within the Guideline Range or Departing
from the Guidelines)).''.]
[Option 2 (Downward departure):
The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is
amended by inserting at the end the following new Note 10:
``10. Downward Departure Consideration for Acquitted Conduct.--If
the use of acquitted conduct (i.e., conduct [underlying] [constituting
an element of] a charge of which the defendant has been acquitted by
the trier of fact in federal court or upon a motion of acquittal
pursuant to Rule 29 of the Federal Rules of Criminal Procedure) has [an
extremely] [a] disproportionate impact in determining the guideline
range relative to the offense of conviction, a downward departure may
be warranted.''.]
[Option 3 (Clear and convincing evidence standard):
Section 6A1.3 is amended--
in subsection (a) by inserting at the beginning the following new
heading: ``Presentation of Information.--'';
in subsection (b) by inserting at the beginning the following new
heading: ``Sentencing Hearing.--'';
and by inserting at the end the following new subsection (c):
``(c) Standard of Proof.--The use of a preponderance of the
evidence standard generally is appropriate to meet due process
requirements and policy concerns in resolving disputes regarding
application of the guidelines to the facts of a case. However, the
court shall not consider acquitted conduct unless such conduct is
established by clear and convincing evidence.
For purposes of this guideline, `acquitted conduct' means conduct
(i.e., any acts or omission) [underlying] [constituting an element of]
a charge of which the defendant has been acquitted by the trier of fact
in federal court or upon a motion of acquittal pursuant to Rule 29 of
the Federal Rules of Criminal Procedure.''.
The Commentary to Sec. 6A1.3 is amended by striking the last
paragraph as follows:
``The Commission believes that use of a preponderance of the
evidence standard is appropriate to meet due process requirements and
policy concerns in resolving disputes regarding application of the
guidelines to the facts of a case.''.
The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is
amended by inserting at the end the following new Note 10:
``10. Acquitted Conduct.--In accordance with Sec. 6A1.3
(Resolution of Disputed Factors (Policy Statement), a court may not
consider acquitted conduct for purposes of determining the guideline
range unless such conduct is established by clear and convincing
evidence.''.]
Issues for Comment:
1. Option 1 of the proposed amendment would provide that acquitted
conduct is not relevant conduct for purposes of determining the
guideline range. It clarifies that a court is not precluded from
considering acquitted conduct in determining the sentence to impose
within the guideline range, or whether a departure from the guidelines
is warranted. The Commission seeks comment on whether it should
prohibit the consideration of acquitted conduct for purposes other than
determining the guideline range.
[[Page 89152]]
For example, should the Commission prohibit a court from considering
acquitted conduct in determining the sentence to impose within the
guideline range, or whether a departure from the guidelines is
warranted? Should the Commission go further by prohibiting the
consideration of acquitted conduct for all purposes when imposing a
sentence? The Commission seeks comment on the interaction between these
more expansive potential prohibitions and 18 U.S.C. 3661, which
provides that ``[n]o limitation shall be placed on the information
concerning the background, character, and conduct of a person convicted
of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.'' The
Commission further seeks comment on whether any of these more expansive
potential prohibitions exceeds the Commission's authority under 28
U.S.C. 994 or any other congressional directives.
The Commission further seeks comment on whether alternatively it
should adopt a policy statement recommending against, rather than
prohibiting, the consideration of acquitted conduct for certain
sentencing steps. If so, what steps in the sentencing process should be
included in such a policy statement? For example, should the policy
statement recommend against the consideration of acquitted conduct for
purposes of determining the guideline range, the sentence to impose
within the guideline range, whether a departure from the guidelines is
warranted, or any factor when imposing a sentence?
2. The proposed amendment would define ``acquitted conduct'' as
``conduct (i.e., any acts or omission) [underlying] [constituting an
element of] a charge of which the defendant has been acquitted by the
trier of fact in federal court or upon a motion of acquittal pursuant
to Rule 29 of the Federal Rules of Criminal Procedure.'' The Commission
seeks comment on whether it should expand the proposed definition of
``acquitted conduct'' to also include acquittals from state, local, or
tribal jurisdictions. Alternatively, should the Commission adopt the
definition used in the ``Prohibiting Punishment of Acquitted Conduct
Act of 2023,'' S. 2788, 118th Cong. (1st Sess. 2023)? That bill would
define ``acquitted conduct'' as ``(1) an act (A) for which a person was
criminally charged and adjudicated not guilty after trial in a Federal,
State, or Tribal court; or (B) in the case of a juvenile, that was
charged and for which the juvenile was found not responsible after a
juvenile adjudication hearing; or (2) any act underlying a criminal
charge or juvenile information dismissed (A) in a Federal court upon a
motion for acquittal under rule 29 of the Federal Rules of Criminal
Procedure; or (B) in a State or Tribal court upon a motion for
acquittal or an analogous motion under the applicable State or Tribal
rule of criminal procedure.''
3. Option 1 of the proposed amendment brackets language that would
exclude from the definition of ``acquitted conduct'' conduct
establishing, in whole or in part, the instant offense of conviction
that was admitted by the defendant during a guilty plea colloquy or
found by the trier of fact beyond a reasonable doubt. This exclusion is
meant to address cases in which conduct underlying an acquitted charge
overlaps with conduct that establishes the instant offense of
conviction. The Commission seeks comment on whether such an exclusion
is necessary to address ``overlapping'' conduct. If so, does the
proposed exclusion adequately address overlapping conduct, or should
the Commission provide additional or different guidance to address
overlapping conduct? Alternatively, should the Commission add
commentary to Sec. 1B1.3 providing that courts should use their
discretion under 18 U.S.C. 3553(a) when considering acquitted conduct
in anomalous cases involving overlapping conduct, such as cases
involving interrelated charges (e.g., charges for inchoate offenses and
the underlying offense)?
4. The Commission seeks comment on whether any or all of the
options presented should be revised to specifically address acquittals
based on reasons unrelated to the substantive evidence, such as
jurisdiction, venue, or statute of limitations. If so, how? For
example, should conduct underlying such acquittals be excluded from the
definition of ``acquitted conduct''?
4. Circuit Conflicts
Synopsis of Proposed Amendment: This proposed amendment addresses
certain circuit conflicts involving Sec. 2K2.1 (Unlawful Receipt,
Possession, or Transportation of Firearms or Ammunition; Prohibited
Transactions Involving Firearms or Ammunition) and Sec. 2K2.4 (Use of
Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation
to Certain Crimes). See U.S. Sent'g Comm'n, ``Notice of Final
Priorities,'' 88 FR 60536 (Sept. 1, 2023) (identifying resolution of
circuit conflicts as a priority). The proposed amendment contains two
parts (Part A and Part B). The Commission is considering whether to
promulgate either or both parts, as they are not mutually exclusive.
Part A would amend Sec. 2K2.1 to address a circuit conflict
concerning whether a serial number must be illegible in order to apply
the 4-level increase in Sec. 2K2.1(b)(4)(B)(i) for a firearm that
``had an altered or obliterated serial number.'' Two options are
presented. An issue for comment is also provided.
Part B would amend the Commentary to Sec. 2K2.4 to address a
circuit conflict concerning whether subsection (c) of Sec. 3D1.2
(Groups of Closely Related Counts) permits grouping of a firearms count
under 18 U.S.C. 922(g) with a drug trafficking count, where the
defendant also has a separate count under 18 U.S.C. 924(c) based on the
drug trafficking count. An issue for comment is also provided.
(A) Circuit Conflict Concerning Sec. 2K2.1(b)(4)(B)(ii)
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, that
had an altered or obliterated serial number, or that was not otherwise
marked with a serial number (other than a firearm manufactured prior to
the effective date of the Gun Control Act of 1968). 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 (i) a firearm has an altered or obliterated serial number or (ii)
the defendant knew that any firearm involved in the offense was not
otherwise marked with a serial number (other than a firearm
manufactured prior to the effective date of the Gun Control Act of
1968) or was willfully blind to or consciously avoided knowledge of
such fact. The Commentary to Sec. 2K2.1 provides that subsection
(b)(4)(A) and (B)(i) apply 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 circuits are split regarding whether a serial number must be
illegible in order to apply the 4-level increase in Sec.
2K2.1(b)(4)(B)(i) for a firearm that ``had an altered or obliterated
serial number.'' The Ninth Circuit first analyzed the meaning of
``altered or obliterated'' and determined that ``a firearm's serial
number is `altered or obliterated' when it is materially changed in a
way that makes
[[Page 89153]]
accurate information less accessible.'' See United States v. Carter,
421 F.3d 909, 916 (9th Cir. 2005). Various circuits have cited this
decision, with different conclusions on the extent of legibility.
The Sixth Circuit has determined that a serial number must be
illegible, adopting a ``naked eye test'', that is, ``a serial number
that is defaced but remains visible to the naked eye is not `altered or
obliterated' under the guideline.'' United States v. Sands, 948 F.3d
709, 719 (6th Cir. 2020). This holding is based on the Sixth Circuit's
determination that ``[a]ny person with basic vision and reading ability
would be able to tell immediately whether a serial number is legible,''
and may be less inclined to purchase a firearm without a legible serial
number. Id. at 717. The Second Circuit has followed the Sixth Circuit
in holding that ``altered'' means illegible for the same reasons. See
United States v. St. Hilaire, 960 F.3d 61, 66 (2d Cir. 2020) (``We
follow the Sixth Circuit, which defines `altered' to mean illegible.''
(citing Sands, 948 F.3d at 715, 719)).
By contrast, the Fourth, Fifth, and Eleventh Circuits have upheld
the enhancement where a serial number is legible or ``less legible.''
See, e.g., United States v. Millender, 791 F. App'x 782 (11th Cir.
2019); United States v. Harris, 720 F.3d 499 (4th Cir. 2013); United
States v. Perez, 585 F.3d 880 (5th Cir. 2009). The Fourth Circuit held
that ``a serial number that is made less legible is made different and
therefore is altered for purposes of the enhancement.'' Harris, 720
F.3d at 501. Similarly, the Fifth Circuit affirmed the enhancement
where the damage did not render the serial number unreadable but ``the
serial number of the firearm [ ] had been materially changed in a way
that made its accurate information less accessible.'' Perez, 585 F.3d
at 884. While the Eleventh Circuit reasoned that an interpretation
where altered means illegible ``would render `obliterated'
superfluous.'' Millender, 791 App'x at 783.
Part A of the proposed amendment would amend Sec. 2K2.1(b)(4) to
include a definition for ``altered or obliterated serial number'' to
address the circuit conflict. Two options are provided.
Option 1 would set forth a definition of ``altered or obliterated
serial number'' that adopts an approach similar to the approach of the
Second and Sixth Circuits. It would provide that such term
``[ordinarily] means a serial number of a firearm that has been
changed, modified, affected, defaced, scratched, erased, or replaced
such that the original information is rendered illegible or
unrecognizable to the unaided eye.''
Option 2 would set forth a definition of ``altered or obliterated
serial number'' that adopts an approach similar to the approach of the
Fourth, Fifth, Ninth, and Eleventh Circuits. It would provide that such
term ``[ordinarily] means a serial number of a firearm that has been
changed, modified, affected, defaced, scratched, erased, or replaced to
make the [original] information less accessible, even if such
information remains legible.''
An issue for comment is also provided.
Proposed Amendment:
[Option 1:
Section 2K2.1(b)(4) is amended by inserting after ``4 levels.'' the
following: ``For purposes of subsection (b)(4)(B)(i), an `altered or
obliterated serial number' [ordinarily] means a serial number of a
firearm that has been changed, modified, affected, defaced, scratched,
erased, or replaced such that the original information is rendered
illegible or unrecognizable to the unaided eye.''.]
[Option 2:
Section 2K2.1(b)(4) is amended by inserting after ``4 levels.'' the
following: ``For purposes of subsection (b)(4)(B)(i), an `altered or
obliterated serial number' [ordinarily] means a serial number of a
firearm that has been changed, modified, affected, defaced, scratched,
erased, or replaced to make the [original] information less accessible,
even if such information remains legible.''.]
Issue for Comment:
1. Part A of the proposed amendment sets forth two options to
address the circuit conflict described in the synopsis above. The
Commission seeks comment on whether it should address the circuit
conflict in a manner other than the options provided in Part A of the
proposed amendment. If so, how?
(B) Circuit Conflict Concerning the Interaction Between Sec. 2K2.4 and
Sec. 3D1.2(c)
Synopsis of Proposed Amendment: Section 3D1.2 (Grouping of Closely
Related Counts) addresses the grouping of closely related counts for
purposes of determining the offense level when a defendant has been
convicted on multiple counts. Subsection (c) states that counts are
grouped together ``[w]hen one of the counts embodies conduct that is
treated as a specific offense characteristic in, or other adjustment
to, the guideline applicable to another of the counts.'' The Commentary
to Sec. 3D1.2 further explains that ``[s]ubsection (c) provides that
when conduct that represents a separate count, e.g., bodily injury or
obstruction of justice, is also a specific offense characteristic in or
other adjustment to another count, the count represented by that
conduct is to be grouped with the count to which it constitutes an
aggravating factor.'' USSG Sec. 3D1.2, comment. (n.5).
Section 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or
Explosive During or in Relation to Certain Crimes) is the guideline
applicable to certain statutes with mandatory minimum terms of
imprisonment (e.g., 18 U.S.C. 924(c)). The guideline provides that if a
defendant, whether or not convicted of another crime, was convicted of
a violation of any of these statutes, the guideline sentence is the
minimum term of imprisonment required by statute. See USSG Sec.
2K2.4(a)-(b). Chapters Three (Adjustments) and Four (Criminal History
and Criminal Livelihood) do not apply to that count of conviction. Id.
In addition, the Commentary to Sec. 2K2.4 provides that ``[i]f a
sentence under this guideline is imposed in conjunction with a sentence
for an underlying offense, do not apply any specific offense
characteristic for possession, brandishing, use, or discharge of an
explosive or firearm when determining the sentence for the underlying
offense.'' Id. comment. (n.4). The examples included in the application
note specifically referenced 18 U.S.C. 924(c) (which penalizes the
possession or use of a firearm during, and in relation to, an
underlying ``crime of violence'' or ``drug trafficking crime'' by
imposing a mandatory minimum penalty consecutive to the sentence for
the underlying offense).
The circuits are split regarding whether Sec. 3D1.2(c) permits
grouping of a firearms count under 18 U.S.C. 922(g) with a drug
trafficking count, where the defendant also has a separate count under
18 U.S.C. 924(c) based on the drug trafficking count. Ordinarily, the
firearms and drug trafficking counts would group under Sec. 3D1.2(c).
The circuit conflict focuses on the presence of the count under 18
U.S.C. 924(c) and its interaction with the Commentary to Sec. 2K2.4
cited above precluding application of the relevant specific offense
characteristics where the conduct covered by any such enhancement forms
the basis of the conviction under 18 U.S.C.Sec. 924(c).
The Sixth, Eighth, and Eleventh Circuits have held that such counts
can be grouped in this situation. See, e.g., United States v. Gibbs,
395 F. App'x 248, 250 (6th Cir. 2010) (``The district court properly
grouped together Gibbs's drug and felon-in-possession
[[Page 89154]]
offenses.''); United States v. Bell, 477 F.3d 607, 615-16 (8th Cir.
2007) (``the felon in possession count and the crack cocaine count
should have been grouped together for sentencing purposes''); United
States v. King, 201 F. App'x 715, 718 (11th Cir. 2006) (grouping
permitted; felon-in-possession count ``embodies conduct that is treated
as a specific offense characteristic'' to drug trafficking counts).
These circuits held that grouping was permissible as the Chapter Two
guidelines for the felon-in-possession conviction and drug conviction
each include ``conduct that is treated as specific offense
characteristics in the other offense,'' regardless of whether the
enhancements are used due to the rules in Sec. 2K2.4 related to 18
U.S.C. 924(c)). Bell, 477 F.3d at 615-16.
By contrast, the Seventh Circuit has held that there is no basis
for grouping felon-in-possession and drug trafficking counts since
grouping rules are to be applied only after the offense level for each
count has been determined and ``by virtue of Sec. 2K2.4, [the counts]
did not operate as specific offense characteristics of each other, and
the enhancements in Sec. Sec. 2D1.1(b)(1) and 2K2.1(b)(6)(B) did not
apply.'' United States v. Sinclair, 770 F.3d 1148, 1157-58 (7th Cir.
2014); see also United States v. Lamon, 893 F.3d 369, 371 (7th Cir.
2018) (declining to overturn Sinclair to rectify the circuit split;
``the mere existence of a circuit split does not justify overturning
precedent . . . especially true here, because in Sinclair we knew that
we were creating the split, and in doing so weighed the impact that our
contrary decision would have on uniformity among the circuits''). The
Seventh Circuit further explained, ``[w]ith this particular combination
of offenses, the otherwise applicable basis for grouping the drug-
trafficking and felon-in-possession counts dropped out of the case.''
Sinclair, 770 F.3d at 1157-58.
Part B of the proposed amendment generally follows the Sixth,
Eighth, and Eleventh Circuits' approach. It would amend the Commentary
to Sec. 2K2.4 to restate the grouping rule in Sec. 3D1.2(c) and
provide an example stating that, in accordance with Sec. 3D1.2(c), in
case in which the defendant is convicted of a felon-in-possession count
under 18 U.S.C. 922(g) and a drug trafficking count underlying a
conviction under 18 U.S.C. 924(c), such counts shall be grouped.
An issue for comment is also provided.
Proposed Amendment: The Commentary to Sec. 2K2.4 captioned
``Application Notes'' is amended in Note 4 by striking the following:
``Weapon Enhancement.--If a sentence under this guideline is
imposed in conjunction with a sentence for an underlying offense, do
not apply any specific offense characteristic for possession,
brandishing, use, or discharge of an explosive or firearm when
determining the sentence for the underlying offense. A sentence under
this guideline accounts for any explosive or weapon enhancement for the
underlying offense of conviction, including any such enhancement that
would apply based on conduct for which the defendant is accountable
under Sec. 1B1.3 (Relevant Conduct). Do not apply any weapon
enhancement in the guideline for the underlying offense, for example,
if (A) a co-defendant, as part of the jointly undertaken criminal
activity, possessed a firearm different from the one for which the
defendant was convicted under 18 U.S.C. 924(c); or (B) in an ongoing
drug trafficking offense, the defendant possessed a firearm other than
the one for which the defendant was convicted under 18 U.S.C. 924(c).
However, if a defendant is convicted of two armed bank robberies, but
is convicted under 18 U.S.C. 924(c) in connection with only one of the
robberies, a weapon enhancement would apply to the bank robbery which
was not the basis for the 18 U.S.C. 924(c) conviction.
A sentence under this guideline also accounts for conduct that
would subject the defendant to an enhancement under Sec. 2D1.1(b)(2)
(pertaining to use of violence, credible threat to use violence, or
directing the use of violence). Do not apply that enhancement when
determining the sentence for the underlying offense.
If the explosive or weapon that was possessed, brandished, used, or
discharged in the course of the underlying offense also results in a
conviction that would subject the defendant to an enhancement under
Sec. 2K1.3(b)(3) (pertaining to possession of explosive material in
connection with another felony offense) or Sec. 2K2.1(b)(6)(B)
(pertaining to possession of any firearm or ammunition in connection
with another felony offense), do not apply that enhancement. A sentence
under this guideline accounts for the conduct covered by these
enhancements because of the relatedness of that conduct to the conduct
that forms the basis for the conviction under 18 U.S.C. 844(h), Sec.
924(c) or Sec. 929(a). For example, if in addition to a conviction for
an underlying offense of armed bank robbery, the defendant was
convicted of being a felon in possession under 18 U.S.C. 922(g), the
enhancement under Sec. 2K2.1(b)(6)(B) would not apply.
In a few cases in which the defendant is determined not to be a
career offender, the offense level for the underlying offense
determined under the preceding paragraphs may result in a guideline
range that, when combined with the mandatory consecutive sentence under
18 U.S.C. 844(h), Sec. 924(c), or Sec. 929(a), produces a total
maximum penalty that is less than the maximum of the guideline range
that would have resulted had there not been a count of conviction under
18 U.S.C. 844(h), Sec. 924(c), or Sec. 929(a) (i.e., the guideline
range that would have resulted if the enhancements for possession, use,
or discharge of a firearm had been applied). In such a case, an upward
departure may be warranted so that the conviction under 18 U.S.C.
844(h), Sec. 924(c), or Sec. 929(a) does not result in a decrease in
the total punishment. An upward departure under this paragraph shall
not exceed the maximum of the guideline range that would have resulted
had there not been a count of conviction under 18 U.S.C. 844(h), Sec.
924(c), or Sec. 929(a).'';
and inserting the following:
``Non-Applicability of Certain Enhancements.--
(A) In General.--If a sentence under this guideline is imposed in
conjunction with a sentence for an underlying offense, do not apply any
specific offense characteristic for possession, brandishing, use, or
discharge of an explosive or firearm when determining the sentence for
the underlying offense. A sentence under this guideline accounts for
any explosive or weapon enhancement for the underlying offense of
conviction, including any such enhancement that would apply based on
conduct for which the defendant is accountable under Sec. 1B1.3
(Relevant Conduct). Do not apply any weapon enhancement in the
guideline for the underlying offense, for example, if (A) a co-
defendant, as part of the jointly undertaken criminal activity,
possessed a firearm different from the one for which the defendant was
convicted under 18 U.S.C. 924(c); or (B) in an ongoing drug trafficking
offense, the defendant possessed a firearm other than the one for which
the defendant was convicted under 18 U.S.C. 924(c). However, if a
defendant is convicted of two armed bank robberies, but is convicted
under 18 U.S.C. 924(c) in connection with only one of the robberies, a
weapon enhancement would apply to the bank robbery which was not the
basis for the 18 U.S.C. 924(c) conviction.
[[Page 89155]]
A sentence under this guideline also accounts for conduct that
would subject the defendant to an enhancement under Sec. 2D1.1(b)(2)
(pertaining to use of violence, credible threat to use violence, or
directing the use of violence). Do not apply that enhancement when
determining the sentence for the underlying offense.
If the explosive or weapon that was possessed, brandished, used, or
discharged in the course of the underlying offense also results in a
conviction that would subject the defendant to an enhancement under
Sec. 2K1.3(b)(3) (pertaining to possession of explosive material in
connection with another felony offense) or Sec. 2K2.1(b)(6)(B)
(pertaining to possession of any firearm or ammunition in connection
with another felony offense), do not apply that enhancement. A sentence
under this guideline accounts for the conduct covered by these
enhancements because of the relatedness of that conduct to the conduct
that forms the basis for the conviction under 18 U.S.C. 844(h), Sec.
924(c) or Sec. 929(a). For example, if in addition to a conviction for
an underlying offense of armed bank robbery, the defendant was
convicted of being a felon in possession under 18 U.S.C. 922(g), the
enhancement under Sec. 2K2.1(b)(6)(B) would not apply.
(B) Impact on Grouping.--If two or more counts would otherwise
group under subsection (c) of Sec. 3D1.2 (Groups of Closely Related
Counts), the counts are to be grouped together under Sec. 3D1.2(c)
despite the non-applicability of certain enhancements under Application
Note 4(A). Thus, for example, in a case in which the defendant is
convicted of a felon-in-possession count under 18 U.S.C. 922(g) and a
drug trafficking count underlying a conviction under 18 U.S.C. 924(c),
the counts shall be grouped pursuant to Sec. 3D1.2(c). The applicable
Chapter Two guidelines for the felon-in-possession count and the drug
trafficking count each include `conduct that is treated as a specific
offense characteristic' in the other count, but the otherwise
applicable enhancements did not apply due to the rules in Sec. 2K2.4
related to 18 U.S.C. 924(c) convictions.
(C) Upward Departure Provision.--In a few cases in which the
defendant is determined not to be a career offender, the offense level
for the underlying offense determined under the preceding paragraphs
may result in a guideline range that, when combined with the mandatory
consecutive sentence under 18 U.S.C. 844(h), Sec. 924(c), or Sec.
929(a), produces a total maximum penalty that is less than the maximum
of the guideline range that would have resulted had there not been a
count of conviction under 18 U.S.C. 844(h), Sec. 924(c), or Sec.
929(a) (i.e., the guideline range that would have resulted if the
enhancements for possession, use, or discharge of a firearm had been
applied). In such a case, an upward departure may be warranted so that
the conviction under 18 U.S.C. 844(h), Sec. 924(c), or Sec. 929(a)
does not result in a decrease in the total punishment. An upward
departure under this paragraph shall not exceed the maximum of the
guideline range that would have resulted had there not been a count of
conviction under 18 U.S.C. 844(h), Sec. 924(c), or Sec. 929(a).''.
Issue for Comment:
1. Part B of the proposed amendment would amend the Commentary to
Sec. 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive
During or in Relation to Certain Crimes) to address the circuit
conflict described in the synopsis above. It would amend Application
Note 4 in the Commentary to Sec. 2K2.4 to restate the grouping rule in
subsection (c) of Sec. 3D1.2 (Grouping of Closely Related Counts) and
provide an example stating that, in accordance with Sec. 3D1.2(c), in
a case in which the defendant is convicted of a felon-in-possession
count under 18 U.S.C. 922(g) and a drug trafficking count underlying a
conviction under 18 U.S.C. 924(c), such counts shall be grouped. The
Commission seeks comment on whether it should provide additional or
different guidance to address this circuit conflict.
In the alternative, should the Commission address the circuit
conflict in a manner other than the one provided in Part B of the
proposed amendment? For example, should the Commission amend Sec.
3D1.2 to provide additional or different guidance about how to apply
Sec. 3D1.2(c)?
5. Miscellaneous
Synopsis of Proposed Amendment: This proposed amendment responds to
recently enacted legislation and miscellaneous guideline issues. See
U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 88 FR 60536 (Sept.
1, 2023) (identifying as priorities ``[i]mplementation of any
legislation warranting Commission action'' and ``[c]onsideration of
other miscellaneous issues coming to the Commission's attention''). The
proposed amendment contains six parts (Parts A through F). The
Commission is considering whether to promulgate any or all these parts,
as they are not mutually exclusive.
Part A responds to the Safeguard Tribal Objects of Patrimony
(``STOP'') Act of 2021, Public Law 117-258 (2022), by amending Appendix
A (Statutory Index) and the Commentary to Sec. 2B1.5 (Theft of, Damage
to, or Destruction of, Cultural Heritage Resources or Paleontological
Resources; Unlawful Sale, Purchase, Exchange, Transportation, or
Receipt of Cultural Heritage Resources or Paleontological Resources).
An issue for comment is also provided.
Part B responds to the Export Control Reform Act of 2018, enacted
as part of the John McCain National Defense Authorization Act for
Fiscal Year 2019, Public Law 115-232 (Aug. 13, 2018), and to concerns
raised by the Department of Justice and the Disruptive Technology
Strike Force (an interagency collaboration between the Department of
Justice's National Security Division and the Department of Commerce's
Bureau of Industry and Security), by amending Appendix A and Sec.
2M5.1 (Evasion of Export Controls; Financial Transactions with
Countries Supporting International Terrorism). Two issues for comment
are also provided.
Part C responds to concerns raised by the Department of Justice
relating to offenses under 31 U.S.C. 5322 and 5336 and 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), by
amending the specific offense characteristic at Sec. 2S1.3(b)(2)(B) to
reflect the enhanced penalty applicable to offenses under those
statutes.
Part D responds to concerns raised by the Department of Justice
relating to the statutes referenced in Appendix A to Sec. 2R1.1 (Bid-
Rigging, Price-Fixing or Market-Allocation Agreements Among
Competitors), by amending Appendix A and the Commentary to Sec. 2R1.1
to replace the reference to 15 U.S.C. 3(b) with a reference to 15
U.S.C. 3(a).
Part E addresses a miscellaneous issue regarding the application of
the base offense levels at subsections (a)(1)-(a)(4) of Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy). Two options are presented.
Part F responds to concerns raised by the Department of Justice
relating to the scope of the definition of ``sex offense'' in
subsection (b)(2) of Sec. 4C1.1 (Adjustment for Certain Zero-Point
Offenders). Two options are presented.
[[Page 89156]]
(A) Safeguard Tribal Objects of Patrimony (``STOP'') Act of 2021
Synopsis of Proposed Amendment: Part A of the proposed amendment
responds to the Safeguard Tribal Objects of Patrimony (``STOP'') Act of
2021, Public Law 117-258 (Dec. 21, 2022). The Act added two new
criminal offenses at 25 U.S.C. 3073 (Export prohibitions; export
certification system; international agreements). In addition, the Act
increased the penalties for offenses under 18 U.S.C. 1170 (Illegal
trafficking in Native American human remains and cultural items).
The first new offense, created by the Act and codified at 25 U.S.C.
3073(a)(1), prohibits exporting, attempting to export, or otherwise
transporting from the United States any ``Item Prohibited from
Exportation,'' and conspiring to engage in and concealing such
activity. An ``Item Prohibited from Exportation'' means (A) a cultural
item prohibited from being trafficked (including through sale,
purchase, use for profit, or transport for sale or profit) by 18 U.S.C.
1170(b) or any other federal law or treaty; and (B) an archaeological
resource prohibited from being trafficked (including through sale,
purchase, exchange, transport, receipt, or offer to sell, purchase, or
exchange, including in interstate or foreign commerce) by subsections
(b) and (c) of 16 U.S.C. 470ee (Archaeological Resources Protection;
Prohibited acts and criminal penalties) or any other federal law or
treaty. 25 U.S.C. 3072(5). A violation of this offense, if the person
knew, or should have known, that the item was taken, possessed,
transported, or sold in violation of, or in a manner that is unlawful
under, any federal law or treaty, is punishable by a maximum term of
imprisonment of one year and one day for a first violation (and not
more than ten years for a second or subsequent violation), a fine, or
both. 25 U.S.C. 3073(a)(2).
The second new offense, codified at 25 U.S.C. 3073(b)(5)(A)(i),
prohibits exporting, attempting to export, or otherwise transporting
from the United States any ``Item Requiring Export Certification''
without first obtaining an export certification. An ``Item Requiring
Export Certification'' means a cultural item and an archaeological
resource but does not include any such item or resource for which an
Indian Tribe or Native Hawaiian organization with a cultural
affiliation with the item has provided a certificate authorizing
exportation of the item. 25 U.S.C. 3072(6). A violation of this
provision is subject to a civil penalty and any other applicable
penalties under chapter 32B (Safeguard Tribal Objects of Patrimony) of
title 25, United States Code. 25 U.S.C. 3073(b)(5)(A)(ii).
In addition, the Act increased the maximum terms of imprisonment
for offenses under 18 U.S.C. 1170. Section 1170(a) prohibits knowingly
selling, purchasing, using for profit, or transporting for sale or
profit, the human remains of a Native American without the right of
possession to those remains. The Act increased the penalty for this
offense from a maximum term of imprisonment of 12 months to one year
and one day, changing its classification from a misdemeanor to a
felony. It further increased the maximum term of imprisonment for a
second or subsequent offense under section 1170(a) from five to ten
years. The Act also increased the maximum term of imprisonment for a
second or subsequent offense under 18 U.S.C. 1170(b) from five to ten
years. Section 1170(b) prohibits knowingly selling, purchasing, using
for profit, or transporting for sale or profit, any Native American
cultural items obtained in violation of the Native American Grave
Protection and Repatriation Act. Section 1170 offenses are currently
referenced in Appendix A (Statutory Index) to Sec. 2B1.5 (Theft of,
Damage to, or Destruction of, Cultural Heritage Resources or
Paleontological Resources; Unlawful Sale, Purchase, Exchange,
Transportation, or Receipt of Cultural Heritage Resources or
Paleontological Resources). The maximum terms of imprisonment for
offenses under 18 U.S.C. 1170, as revised by the Act, are still within
the maximum penalty range of one year to 20 years for other offenses
referenced to Sec. 2B1.5.
Part A of the proposed amendment would amend Appendix A to
reference the new offenses under 25 U.S.C. 3073 to Sec. 2B1.5. The
conduct prohibited by 25 U.S.C. 3073 is similar to the conduct
prohibited by 18 U.S.C. 1170. Part A of the proposed amendment would
also amend the Commentary to Sec. 2B1.5 to reflect that 25 U.S.C. 3073
is referenced to the guideline. In addition, it would make additional
technical changes to the Commentary to Sec. 2B1.5, including
specifying that 18 U.S.C. 666(a)(1)(A) 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 25 U.S.C. 5306 the following
new line reference:
``25 U.S.C. 3073 2B1.5''.
The Commentary to Sec. 2B1.5 captioned ``Statutory Provisions'' is
amended by striking ``16 U.S.C. 470aaa-5, 470ee, 668(a), 707(b); 18
U.S.C. 541-546, 554, 641, 661-662, 666, 668, 1163, 1168, 1170, 1361,
1369, 2232, 2314-2315'' and inserting: ``16 U.S.C. 470aaa-5, 470ee,
668(a), 707(b); 18 U.S.C. 541-546, 554, 641, 661-662, 666(a)(1)(A),
668, 1163, 1168, 1170, 1361, 1369, 2232, 2314-2315; 25 U.S.C. 3073. For
additional statutory provision(s), see Appendix A (Statutory Index)''.
Issue for Comment:
1. In response to the Safeguard Tribal Objects of Patrimony
(``STOP'') Act of 2021, Public Law 117-258 (2022), Part A of the
proposed amendment would reference 25 U.S.C. 3073 to Sec. 2B1.5 (Theft
of, Damage to, or Destruction of, Cultural Heritage Resources or
Paleontological Resources; Unlawful Sale, Purchase, Exchange,
Transportation, or Receipt of Cultural Heritage Resources or
Paleontological Resources). The Commission seeks comment on whether any
additional changes to the guidelines are required in response to the
Act. Specifically, should the Commission amend Sec. 2B1.5 to provide a
higher or lower base offense level in response to the changes brought
by the Act? If so, what should that base offense level be and why?
Should the Commission add a specific offense characteristic to Sec.
2B1.5 in response to the Act? If so, what should that specific offense
characteristic provide and why?
(B) Evasion of Export Controls
Synopsis of Proposed Amendment: Part B of the proposed amendment
responds to the Export Control Reform Act of 2018, enacted as part of
the John McCain National Defense Authorization Act for Fiscal Year
2019, Public Law 115-232 (Aug. 13, 2018), and to concerns raised by the
Department of Justice and the Disruptive Technology Strike Force (an
interagency collaboration between the Department of Justice's National
Security Division and the Department of Commerce's Bureau of Industry
and Security).
The Export Control Reform Act of 2018 repealed the Export
Administration Act of 1979 (previously codified at 50 U.S.C. 4601-4623)
regarding export controls of dual-use items. Dual-use items have both
civilian and military applications and are subject to export licensing
requirements. The Export Control Reform Act of 2018 also included new
provisions, codified at 50 U.S.C. 4801-4826, relating to export
controls for national security and foreign policy purposes, to further
the policy of the United States ``to restrict the export of items which
would make a significant contribution to the military potential of any
other country or
[[Page 89157]]
combination of countries which would prove detrimental to the national
security of the United States'' and ``to restrict the export of items
if necessary to further significantly the foreign policy of the United
States or to fulfill its declared international obligations.'' See 50
U.S.C. 4811. These new provisions authorize the Department of Commerce
to develop the Export Administration Regulations, which establish the
export controls governing dual-use and other items. In addition, the
Export Control Reform Act of 2018 is the first export control statute
to explicitly consider the economic security of the United States as a
component or element of national security.
The Export Control Reform Act of 2018 maintained much of the dual-
use export controls previously established under the Export
Administration Act of 1979, but in a process that is still ongoing, the
agencies charged with administering and enforcing the Act are still
making significant changes to what items are controlled and have
increased the overall restrictions on export licensing. In addition to
the items and services already controlled by the Export Administration
Regulations, the Export Control Reform Act of 2018 requires the
President to establish an interagency process to identify ``emerging
and foundational technologies that are `essential to the national
security of the United States' '' but are not already included in the
definition of ``critical technologies'' in the Foreign Investment Risk
Review Modernization Act. See 50 U.S.C. 4817(a). Examples of ``emerging
technologies'' include artificial intelligence and machine learning;
quantum information and sensing technology; robotics; and
biotechnology. ``Foundational technologies'' are described as
technologies that may warrant stricter controls if an application or
capability of that technology poses a national security threat. The
Export Control Reform Act of 2018 also requires the Department of
Commerce to ``establish and maintain a list'' of controlled items,
foreign persons, and end uses determined to be a threat to national
security and foreign policy. Id. Sec. 4813.
The Export Control Reform Act of 2018 includes a criminal offense
at new section 4819 (replacing repealed 50 U.S.C. 4610 (Violations)),
which prohibits willfully committing, willfully attempting or
conspiring to commit, or aiding and abetting a violation of the Act or
of any regulation, order, license, or other authorization issued under
the Act. Any such violation is punishable by a fine of not more than
$1,000,000, a maximum term of imprisonment of 20 years, or both. See 50
U.S.C. 4819(b). Offenses under repealed section 4610 are currently
referenced in Appendix A (Statutory Index) to Sec. 2M5.1 (Evasion of
Export Controls; Financial Transactions with Countries Supporting
International Terrorism), which also appears to be the most analogous
guideline for the offenses under new section 4819. The maximum term of
imprisonment at new section 4819(b) is greater than the maximum
penalties of five and ten years provided in the repealed section 4610
but is within the maximum penalty range of ten to 20 years for other
offenses referenced to Sec. 2M5.1.
In addition, the Department of Justice and the Disruptive
Technology Strike Force recommended that the Commission consider
amending Sec. 2M5.1 to ensure that all controls related to national
security are covered by the guideline provisions. See Annual Letter
from the U.S. Department of Justice to the Commission (Aug. 1, 2023),
at <a href="https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202308/88FR39907_public-comment_R.pdf#page=38">https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202308/88FR39907_public-comment_R.pdf#page=38</a>; Letter
from U.S. Department of Justice National Security Division & U.S.
Department of Commerce Bureau of Industry and Security (Aug. 1, 2023),
at <a href="https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202308/88FR39907_public-comment_R.pdf#page=55">https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202308/88FR39907_public-comment_R.pdf#page=55</a>. Both the
Department of Justice and the Disruptive Technology Strike Force are
concerned that, given the wide-range of national security-related
controls in force, some courts have applied Sec. 2M5.1 too narrowly.
The Department of Justice explained that under the Export
Administration Regulations and the Commerce Control List (contained
within the Export Administration Regulations) export controls related
to national security can carry different designations correlating to
the specific reason certain items (i.e., commodities, software,
technology) are subject to the nation's export licensing authority and
are thus controlled. One such designation is ``NS'' (National
Security), while other designations include ``MT'' (Missile
Technology), ``RS,'' (Regional Stability), ``CB'' (Proliferation of
Chemical and Biological Weapons), ``AT'' (Anti-Terrorism), and ``NP''
(Nuclear Nonproliferation). The Department of Justice further clarified
that other export controls comprise ``the full spectrum of national
security related controls,'' including export controls to certain
military end-users and foreign entities when they present an
unacceptable security risk to national security policy interests and
export controls placed on certain goods and destinations based on
sanctions and embargoes imposed by the President pursuant to the
International Emergency Economic Powers Act (50 U.S.C. 1701-1705) or
other specific acts of Congress.
According to the Department of Justice, because Sec.
2M5.1(a)(1)(A) specifically refers to ``national security controls,''
some sentencing courts may erroneously conclude that only the goods
controlled under the Commerce Control List's ``NS'' designation, and
not the goods controlled under separate sections of the Export
Administration Regulations or the International Emergency Economic
Powers Act, qualify for the higher alternative base offense level 26 at
Sec. 2M5.1(a)(1)(A). Both the Department of Justice and the Disruptive
Technology Strike Force recommend replacing the term ``national
security controls'' currently used at Sec. 2M5.1(a)(1)(A) with the
term ``controls related to national security,'' to ensure that the
provision includes ``the full spectrum'' of national security-controls,
including anti-terrorism, missile technology, regional stability,
proliferation of chemical and biological weapons, nuclear
nonproliferation, and military and weapons of mass destruction end-uses
and end-users and entity-specific controls, and sanctions and
embargoes.
Part B of the proposed amendment would amend Appendix A and the
Commentary to Sec. 2M5.1 to reflect the new United States Code section
numbers relating to export controls for national security and foreign
policy.
Additionally, Part B of the proposed amendment would amend Sec.
2M5.1(a)(1)(A) in response to the concerns raised by the Department of
Justice and the Disruptive Technology Strike Force. It would replace
the term ``national security controls'' with ``controls relating to
national security [(including controls on emerging and foundational
technologies)].''
Finally, Part B of the proposed amendment would make technical
changes to the Commentary to Sec. 2M5.1 by reorganizing the
application notes and adding headings.
Two issues for comment are also provided.
Proposed Amendment: Appendix A (Statutory Index) is amended in the
line referenced to 50 U.S.C. 4610 by striking ``Sec. 4610'' and
inserting ``Sec. 4819''.
Section 2M5.1(a)(1) is amended by striking ``national security
controls'' and inserting ``controls relating to national security
[(including controls on
[[Page 89158]]
emerging and foundational technologies)]''.
The Commentary to Sec. 2M5.1 captioned ``Statutory Provisions'' is
amended by striking ``50 U.S.C. 1705; 50 U.S.C. 4601-4623'' and
inserting ``50 U.S.C. 1705, 4819''.
The Commentary to Sec. 2M5.1 captioned ``Application Notes'' is
amended--
by striking Notes 1 through 4 as follows:
``1. In the case of a violation during time of war or armed
conflict, an upward departure may be warranted.
2. In determining the sentence within the applicable guideline
range, the court may consider the degree to which the violation
threatened a security interest of the United States, the volume of
commerce involved, the extent of planning or sophistication, and
whether there were multiple occurrences. Where such factors are present
in an extreme form, a departure from the guidelines may be warranted.
See Chapter Five, Part K (Departures).
3. In addition to the provisions for imprisonment, 50 U.S.C. 4610
contains provisions for criminal fines and forfeiture as well as civil
penalties. The maximum fine for individual defendants is $250,000. In
the case of corporations, the maximum fine is five times the value of
the exports involved or $1 million, whichever is greater. When national
security controls are violated, in addition to any other sanction, the
defendant is subject to forfeiture of any interest in, security of, or
claim against: any goods or tangible items that were the subject of the
violation; property used to export or attempt to export that was the
subject of the violation; and any proceeds obtained directly or
indirectly as a result of the violation.
4. For purposes of subsection (a)(1)(B), `a country supporting
international terrorism' means a country designated under section 6(j)
of the Export Administration Act (50 U.S.C. 4605).'';
and by inserting the following new Notes 1, 2, and 3:
``1. Definition.--For purposes of subsection (a)(1)(B), `a country
supporting international terrorism' means a country designated under
section 1754 of the Export Controls Act of 2018 (50 U.S.C. 4813).
2. Additional Penalties.--In addition to the provisions for
imprisonment, 50 U.S.C. 4819 contains provisions for criminal fines and
forfeiture as well as civil penalties.
3. Departure Provisions.--
(A) In General.--In determining the sentence within the applicable
guideline range, the court may consider the degree to which the
violation threatened a security interest of the United States, the
volume of commerce involved, the extent of planning or sophistication,
and whether there were multiple occurrences. Where such factors are
present in an extreme form, a departure from the guidelines may be
warranted. See Chapter Five, Part K (Departures).
(B) War or Armed Conflict.--In the case of a violation during time
of war or armed conflict, an upward departure may be warranted.''.
Issues for Comment:
1. In response to the Export Control Reform Act of 2018, enacted as
part of the John McCain National Defense Authorization Act for Fiscal
Year 2019, Public Law 115-232 (Aug. 13, 2018), Part B of the proposed
amendment would amend Appendix A (Statutory Index) and the Commentary
to Sec. 2M5.1 (Evasion of Export Controls; Financial Transactions with
Countries Supporting International Terrorism). The current provisions
of Sec. 2M5.1, including the term ``national security controls'' used
in subsection (a)(1), are mostly based on the statutory provisions of
the Export Administration Act of 1979. As explained in the synopsis
above, the Export Control Reform Act of 2018 repealed and replaced the
1979 Act and expanded the meaning of national security (to explicitly
include the economic security of the United States as a component or
element of national security), the types of items controlled (e.g.,
emerging and foundational technologies), and the reasons for control
(e.g., persons and firms involved in activities contrary to national
security or foreign policy interests). In addition, the agencies
charged with administering and enforcing the Export Control Reform Act
of 2018 are still making significant changes to what items are
controlled and have increased the overall restrictions on export
licensing. Accordingly, the Commission seeks general comment on whether
any different or additional changes to the guidelines are required in
response to the changes brought by the Export Control Reform Act of
2018. Specifically, should the Commission revise the base offense
levels at Sec. 2M5.1(a)? If so, what revision should the Commission
make and why? Should the Commission add additional specific offense
characteristics to Sec. 2M5.1? If so, what should any such specific
offense characteristic provide and why? For example, should the
Commission provide a definition of the term ``controls relating to
national security''? Should the Commission include in the provisions of
Sec. 2M5.1 specific references to controls relating to foreign policy
or economic interest of the United States or to certain end-users and
entities?
2. Part B of the proposed amendment would also amend Sec. 2M5.1 in
response to the concerns raised by the Department of Justice and the
Disruptive Technology Strike Force (an interagency collaboration
between the Department of Justice's National Security Division and the
Department of Commerce's Bureau of Industry and Security). The
Commission invites general comment on the Department of Justice's and
Disruptive Technology Strike Force's concerns discussed in the synopsis
above. Are the changes to Sec. 2M5.1 appropriate to address those
concerns? Should the Commission provide additional or different
guidance for applying Sec. 2M5.1? Is there an alternative approach
that the Commission should consider in response to the concerns raised
by the Department of Justice and the Disruptive Technology Strike
Force?
(C) Offenses Involving Records and Reports on Monetary Instruments
Transactions
Synopsis of Proposed Amendment: Part C of the proposed amendment
responds to concerns raised by the Department of Justice relating to
enhanced penalties under 31 U.S.C. 5322 (Criminal penalties) and
covered by 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).
Section 5322 is a penalty provision for the substantive criminal
offenses in subchapter II (Records and Reports on Monetary Instruments
Transactions) of chapter 53 of title 31, United States Code. The
provisions of this subchapter are the reporting requirements of the
Bank Secrecy Act (BSA) and impose substantial compliance requirements
on financial institutions. A simple violation of an offense in this
subchapter is punishable by a five-year maximum term of imprisonment, a
fine, or both under 31 U.S.C. 5322(a). However, if the offense also
involved ``violating another law of the United States or as part of a
pattern of any illegal activity involving more than $100,000 in a 12-
month period,'' the maximum term of imprisonment increases to ten years
as provided for at 31 U.S.C. 5322(b). Notably, other penalty provisions
in subchapter II of chapter 53 of title 31, United States
[[Page 89159]]
Code, increase the maximum term of imprisonment if the offense involved
``violating another law of the United States or as part of a pattern of
any illegal activity involving more than $100,000 in a 12-month
period.'' See 31 U.S.C. 5324(d) and 5336(h).
The majority of the substantive criminal offenses in subchapter II
of chapter 53 of title 31, United States Code, including 31 U.S.C.
5322, 5324 and 5336, are referenced in Appendix A (Statutory Index) to
Sec. 2S1.3. Relevant to this issue, Sec. 2S1.3(b)(2) provides for a
2-level enhancement if ``the defendant (A) was convicted of an offense
under subchapter II of chapter 53 of title 31, United States Code; and
(B) committed the offense as part of a pattern of unlawful activity
involving more than $100,000 in a 12-month period.'' USSG Sec.
2S1.3(b)(2).
During the 2022-2023 amendment cycle, the Department of Justice, in
its letter addressing a proposed crime legislation amendment, noted
that when the Commission promulgated Sec. 2S1.3(b)(2) it did not
include the additional factor set forth in 31 U.S.C. 5322(b) that
qualifies a defendant for the enhanced penalty, which is when an
individual commits an offense under subchapter II of chapter 53 of
title 31, United States Code, ``while violating another law of the
United States.'' At the time, the Commission expressed interest in
addressing this miscellaneous issue during the 2023-2024 amendment
cycle.
Part C of the proposed amendment would amend the specific offense
characteristic at Sec. 2S1.3(b)(2)(B) to reflect the additional
enhanced penalty factor under 31 U.S.C. 5322(b), 5324(d), and 5336.
Specifically, it would revise the 2-level enhancement at Sec.
2S1.3(b)(2)(B) to also apply if the defendant committed the offense
``while violating another law of the United States.''
Proposed Amendment: Section 2S1.3(b)(2)(B) is amended by striking
``committed the offense as part of a pattern of unlawful activity'' and
inserting ``committed the offense while violating another law of the
United States or as part of a pattern of unlawful activity''.
(D) Antitrust Offenses
Synopsis of Proposed Amendment: Part D of the proposed amendment
responds to concerns raised by the Department of Justice relating to
the statutes referenced in Appendix A (Statutory Index) to Sec. 2R1.1
(Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among
Competitors).
Section 2R1.1 is intended to apply to antitrust offenses,
particularly offenses relating to agreements among competitors, such as
horizontal price-fixing (including bid-rigging) and horizontal market-
allocation, ``that are intended to, and serve no purpose other than to,
restrict output and raise prices, and that are so plainly
anticompetitive that they have been recognized as illegal per se, i.e.,
without any inquiry in individual cases as to their actual competitive
effect.'' USSG Sec. 2R1.1, comment. (backg'd.).
In the original 1987 Guidelines Manual, the only statute referenced
in Appendix A to Sec. 2R1.1 was 15 U.S.C. 1 (Trusts, etc., in
restraint of trade illegal; penalty), a provision of the Sherman
Antitrust Act of 1890 that prohibits any contract or combination in the
form of a trust or otherwise (or any such conspiracy) in restraint of
trade or commerce among the several states or with foreign nations. In
1990, the Commission amended Appendix A to reference 18 U.S.C. 1860
(Bids at land sales) to Sec. 2R1.1. See Appendix C, amendment 359
(effective Nov. 1, 1990). Section 1860 prohibits bargaining,
contracting, or agreeing, or attempting to bargain, contract, or agree
with another person that such person shall not bid upon or purchase any
parcel of lands of the United States offered at public sale. It also
prohibits using intimidation, combination, or unfair management, to
hinder, prevent, or attempt to hinder or prevent, any person from
bidding upon or purchasing any tract of land so offered for sale.
In 2002, Congress amended 15 U.S.C. 3 to create a new criminal
offense. See Section 14102 of the Antitrust Technical Corrections Act
of 2002, Public Law 107-273 (Nov. 2, 2002). Prior to the Antitrust
Technical Corrections Act of 2002, 15 U.S.C. 3 contained only one
provision prohibiting any contract or combination in the form of trust
or otherwise (or any such conspiracy) in restraint of trade or commerce
in any territory of the United States or the District of Columbia. The
Act redesignated the existing provision as subsection (a) and added a
new criminal offense at a new subsection (b). Section 3(b) prohibits
monopolization, attempts to monopolize, and combining or conspiring
with another person to monopolize any part of the trade or commerce in
or involving any territory of the United States or the District of
Columbia. 15 U.S.C. 3(b).
In 2003, the Commission amended Appendix A to reference 15 U.S.C.
3(b) to Sec. 2R1.1 and the Commentary to Sec. 2R1.1 to reflect such
reference. See Appendix C, amendment 661 (effective Nov. 1, 2003). The
Commission did not include a reference in Appendix A to the then newly
redesignated 15 U.S.C. 3(a). Section 3(a) is not currently referenced
in Appendix A to any guideline.
The Department of Justice has raised a concern that Appendix A and
Sec. 2R1.1 contain inaccurate references to 15 U.S.C. 3(b). According
to the Department of Justice, both Appendix A and the Commentary to
Sec. 2R1.1 lists 15 U.S.C. 3(b) as a statutory provision covered by
Sec. 2R1.1 when, in fact, the guideline should instead cover 15 U.S.C.
3(a). The Department of Justice indicates that, other than 15 U.S.C.
3(b), the statutes currently referenced in Appendix A to Sec. 2R1.1
cover offenses relating to agreements or combinations in restraint of
trade or commerce. Section 3(b) offenses address conduct relating to
the acquisition or maintenance of monopoly power in a relevant market,
which may be committed by a single entity and does not depend on
agreement among competitors. According to the Department of Justice,
these types of monopolization offenses are beyond the scope of Sec.
2R1.1, as described in the Background Commentary, thus maintaining the
Appendix A reference to the guideline has the potential to sow
confusion in antitrust prosecutions. The Department of Justice suggests
that the Commission replace the reference to 15 U.S.C. 3(b) in Appendix
A and Sec. 2R1.1 with a reference to 15 U.S.C. 3(a), which is the
provision in section 3 that addresses offenses relating to agreements
in restraint of trade or commerce and is more similar to the other
offenses already covered by Sec. 2R1.1.
Part D of the proposed amendment would amendment Appendix A and the
Commentary to Sec. 2R1.1 to replace the reference to 15 U.S.C. 3(b)
with a reference to 15 U.S.C. 3(a). In addition, it would make
technical changes to the Commentary to Sec. 2R1.1, including the
addition of headings to some application notes.
Proposed Amendment: Appendix A (Statutory Index) is amended in the
line referenced to 15 U.S.C. 3(b) by striking ``Sec. 3(b)'' and
inserting ``Sec. 3(a)''.
The Commentary to Sec. 2R1.1 captioned ``Statutory Provisions'' is
amended by striking ``Sec. Sec. 1, 3(b)'' and inserting ``Sec. Sec.
1, 3(a)''.
The Commentary to Sec. 2R1.1 captioned ``Application Notes'' is
amended--
in Note 3 by inserting at the beginning the following new heading:
``Fines for Organizations.--'';
[[Page 89160]]
in Note 4 by inserting at the beginning the following new heading:
``Another Consideration in Setting Fine.--'';
in Note 5 by inserting at the beginning the following new heading:
``Use of Alternatives Other Than Imprisonment.--'';
in Note 6 by inserting at the beginning the following new heading:
``Understatement of Seriousness.--'';
and in Note 7 by inserting at the beginning the following new
heading: ``Defendant with Previous Antitrust Convictions.--''.
The Commentary to Sec. 2R1.1 captioned ``Background'' is amended
by striking ``These guidelines apply'' and inserting ``This guideline
applies''.
(E) Enhanced Penalties for Drug Offenders
Synopsis of Proposed Amendment: Part E of the proposed amendment
addresses a miscellaneous issue regarding the application of the
enhanced base offense levels at subsections (a)(1)-(a)(4) of Sec.
2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy).
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.
Section 2D1.1 provides specific base offense levels to reflect this
enhanced penalty structure at Sec. 2D1.1(a)(1)-(a)(4). Section
2D1.1(a)(1)(A) provides for a base offense level of 43 if ``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.'' Similarly, Sec. 2D1.1(a)(1)(B) provides for a base offense
level of 43 if ``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.'' Each of the six
statutory provisions enumerated within Sec. 2D1.1(a)(1)(A) and (B)
require a mandatory term of life imprisonment for any defendant who has
a qualifying prior offense and whose instant offense involved a
substance that resulted in death or serious bodily injury.
Section 2D1.1(a)(2) provides for a base offense level of 38 ``if
the defendant is convicted under 21 U.S.C. 841(b)(1)(A), (b)(1)(B), or
(b)(1)(C), or 21 U.S.C. 960(b)(1), (b)(2), or (b)(3), and the offense
of conviction establishes that death or serious bodily injury resulted
from the use of the substance.'' Each of the six statutory provisions
enumerated within Sec. 2D1.1(a)(2) provides for a mandatory minimum
term of imprisonment of not less than 20 years for a defendant whose
instant offense involved a substance that resulted in death or serious
bodily injury.
Section 2D1.1(a)(3) provides for a base offense level of 30 if
``the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C.
960(b)(5), and the offense of conviction establishes that death or
serious bodily injury resulted from the use of the substance and that
the defendant committed the offense after one or more prior convictions
for a felony drug offense.'' Both statutory provisions enumerated
within Sec. 2D1.1(a)(3) provide for an increased statutory maximum
term of imprisonment of 30 years for any defendant who has a qualifying
prior offense and whose instant offense involved a substance that
resulted in death or serious bodily injury.
Section 2D1.1(a)(4) provides for a base offense level of 26 if ``if
the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C.
960(b)(5), and the offense of conviction establishes that death or
serious bodily injury resulted from the use of the substance.'' Both
statutory provisions enumerated within Sec. 2D1.1(a)(4) provide for an
increased statutory maximum term of imprisonment of 15 years for any
defendant whose instant offense involved a substance that resulted in
death or serious bodily injury.
The Commission has heard concerns that it is not clear whether the
enhanced base offense levels at Sec. 2D1.1(a)(1)-(a)(4) apply only
when the defendant was convicted under the enhanced penalty provision
of 21 U.S.C. 841 or 21 U.S.C. 960 because each statutory element was
established, or whether they also apply whenever a defendant meets the
applicable requirements, regardless of whether the defendant was in
fact convicted under the enhanced penalty provision.
Part E of the proposed amendment would amend Sec. 2D1.1(a)(1)-(4)
to address these concerns. Two options are provided.
Option 1 would amend Sec. 2D1.1(a)(1)-(4) to provide that the base
offense levels in those provisions apply only if the defendant was
convicted under 21 U.S.C. 841 or 21 U.S.C. 960, and was subject to a
statutorily enhanced sentence under title 21, United States Code, for
the offense of conviction because the specific statutory elements were
established in accordance with the relevant provision in title 21,
United States Code.
Option 2 would amend Sec. 2D1.1(a)(1)-(4) so that the base offense
levels in those provisions apply if the defendant was convicted under
21 U.S.C. 841 or 21 U.S.C. 960 and the offense involved the applicable
requirements. However, Sec. 2D1.1(a)(1) and (a)(3) would require that
the fact that the offense was committed after one or more prior
convictions for a serious drug felony, serious violent felony, or
felony drug offense be established by the information filed by the
government pursuant to 21 U.S.C. 851.
Proposed Amendment:
[Option 1:
Section 2D1.1(a) is amended by striking paragraphs (1) through (4)
as follows:
``(1) 43, if--
(A) the defendant is convicted under 21 U.S.C. 841(b)(1)(A) or
(b)(1)(B), or 21 U.S.C. 960(b)(1) or (b)(2), and the offense of
conviction establishes that death or serious bodily injury resulted
from the use of the substance and that the defendant committed the
offense after one or more prior convictions for a serious drug felony
or serious violent felony; or
(B) the defendant is convicted under 21 U.S.C. 841(b)(1)(C) or 21
U.S.C. 960(b)(3) and the offense of conviction establishes that death
or serious bodily injury resulted from the use of the substance and
that the defendant committed the offense after one or more prior
convictions for a felony drug offense; or
(2) 38, if the defendant is convicted under 21 U.S.C. 841(b)(1)(A),
(b)(1)(B), or (b)(1)(C), or 21 U.S.C. 960(b)(1), (b)(2), or (b)(3), and
the offense of conviction establishes that death or serious bodily
injury resulted from the use of the substance; or
(3) 30, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E)
or 21 U.S.C. 960(b)(5), and the offense of
[[Page 89161]]
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
(4) 26, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E)
or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that
death or serious bodily injury resulted from the use of the substance;
or'';
and by inserting the following new paragraphs (1) through (4):
``(1) 43, if--
(A) the defendant (i) 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 (ii) is subject to a
statutorily enhanced sentence under title 21, United States Code, for
the offense of conviction because (I) death or serious bodily injury
resulted from the use of the substance; and (II) the defendant
committed the offense after one or more prior convictions for a serious
drug felony or serious violent felony, as established by the
information filed by the government pursuant to 21 U.S.C. 851; or
(B) the defendant (i) is convicted under 21 U.S.C. 841(b)(1)(C) or
21 U.S.C. 960(b)(3); and (ii) is subject to a statutorily enhanced
sentence under title 21, United States Code, for the offense of
conviction because (I) death or serious bodily injury resulted from the
use of the substance; and (II) the defendant committed the offense
after one or more prior convictions for a felony drug offense, as
established by the information filed by the government pursuant to 21
U.S.C. 851; or
(2) 38, if the defendant (A) 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 (B) is subject to a statutorily enhanced sentence under
title 21, United States Code, for the offense of conviction because
death or serious bodily injury resulted from the use of the substance;
or
(3) 30, if the defendant (A) is convicted under 21 U.S.C.
841(b)(1)(E) or 21 U.S.C. 960(b)(5); and (B) is subject to a
statutorily enhanced sentence under title 21, United States Code, for
the offense of conviction because (i) death or serious bodily injury
resulted from the use of the substance; and (ii) the defendant
committed the offense after one or more prior convictions for a felony
drug offense, as established by the information filed by the government
pursuant to 21 U.S.C. 851; or
(4) 26, if the defendant (A) is convicted under 21 U.S.C.
841(b)(1)(E) or 21 U.S.C. 960(b)(5); and (B) is subject to a
statutorily enhanced sentence under title 21, United States Code, for
the offense of conviction because death or serious bodily injury
resulted from the use of the substance; or''.]
[Option 2:
Section 2D1.1(a) is amended by striking paragraphs (1) through (4)
as follows:
``(1) 43, if--
(A) the defendant is convicted under 21 U.S.C. 841(b)(1)(A) or
(b)(1)(B), or 21 U.S.C. 960(b)(1) or (b)(2), and the offense of
conviction establishes that death or serious bodily injury resulted
from the use of the substance and that the defendant committed the
offense after one or more prior convictions for a serious drug felony
or serious violent felony; or
(B) the defendant is convicted under 21 U.S.C. 841(b)(1)(C) or 21
U.S.C. 960(b)(3) and the offense of conviction establishes that death
or serious bodily injury resulted from the use of the substance and
that the defendant committed the offense after one or more prior
convictions for a felony drug offense; or
(2) 38, if the defendant is convicted under 21 U.S.C. 841(b)(1)(A),
(b)(1)(B), or (b)(1)(C), or 21 U.S.C. 960(b)(1), (b)(2), or (b)(3), and
the offense of conviction establishes that death or serious bodily
injury resulted from the use of the substance; or
(3) 30, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E)
or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that
death or serious bodily injury resulted from the use of the substance
and that the defendant committed the offense after one or more prior
convictions for a felony drug offense; or
(4) 26, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E)
or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that
death or serious bodily injury resulted from the use of the substance;
or'';
and by inserting the following new paragraphs (1) through (4):
``(1) 43, if--
(A) (i) 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); (ii) the offense involved
death or serious bodily injury resulting from the use of the substance;
and (iii) the defendant committed the offense after one or more prior
convictions for a serious drug felony or serious violent felony, as
established by the information filed by the government pursuant to 21
U.S.C. 851; or
(B) (i) the defendant is convicted under 21 U.S.C. 841(b)(1)(C) or
21 U.S.C. 960(b)(3); (ii) the offense involved death or serious bodily
injury resulting from the use of the substance; and (iii) the defendant
committed the offense after one or more prior convictions for a felony
drug offense, as established by the information filed by the government
pursuant to 21 U.S.C. 851; or
(2) 38, if (A) 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 (B) the offense involved death or serious bodily injury
resulting from the use of the substance; or
(3) 30, if (A) the defendant is convicted under 21 U.S.C.
841(b)(1)(E) or 21 U.S.C. 960(b)(5); (B) the offense involved death or
serious bodily injury resulting from the use of the substance; and (C)
the defendant committed the offense after one or more prior convictions
for a felony drug offense, as established by the information filed by
the government pursuant to 21 U.S.C. 851; or
(4) 26, if (A) the defendant is convicted under 21 U.S.C.
841(b)(1)(E) or 21 U.S.C. 960(b)(5); and (B) the offense involved death
or serious bodily injury resulting from the use of the substance;
or''.]
(F) ``Sex Offense'' Definition in Sec. 4C1.1
Synopsis of Proposed Amendment: Part F of the proposed amendment
responds to concerns raised by the Department of Justice relating to
the scope of the definition of ``sex offense'' in subsection (b)(2) of
Sec. 4C1.1 (Adjustment for Certain Zero-Point Offenders).
In 2023, the Commission added a new Chapter Four guideline, at
Sec. 4C1.1 (Adjustment for Certain Zero-Point Offenders), providing a
decrease of 2 levels from the offense level determined under Chapters
Two and Three for ``zero-point'' offenders who meet certain criteria.
See USSG App. C, amendment 821 (effective Nov. 1, 2023). The 2-level
adjustment for defendants with zero criminal history points at Sec.
4C1.1 applies only if none of the exclusionary criteria set forth in
subsections (a)(1) through (a)(10) apply. Among the exclusionary
criteria is subsection (a)(5), requiring that ``the [defendant's]
instant offense of conviction is not a sex offense.'' Section
4C1.1(b)(2) defines ``sex offense'' as ``(A) an offense, perpetrated
against a minor, under (i) chapter 109A of title 18, United States
Code; (ii) chapter 110 of title 18, not including a recordkeeping
offense; (iii) chapter 117 of title 18, not including transmitting
information about a minor or filing a factual statement about an alien
individual; or (iv) 18 U.S.C. 1591;
[[Page 89162]]
or (B) an attempt or a conspiracy to commit any offense described in
subparagraphs (A)(i) through (iv) of this definition.''
The Department of Justice has raised a concern that the current
definition of ``sex offense'' is too restrictive because it applies
only to offenses perpetrated against minors. The Department of Justice
first raised this issue during the 2022-2023 amendment cycle. In its
letter addressing the proposed amendment on sexual abuse offenses, the
Department of Justice noted that the restrictive definition of ``sex
offense'' in the then-proposed Sec. 4C1.1 would run counter to the
Commission's then-proposed amendment to increase the base offense level
from level 14 to level 18 at Sec. 2A3.3 (Criminal Sexual Abuse of a
Ward or Attempt to Commit Such Acts; Criminal Sexual Abuse of an
Individual in Federal Custody).
Part F of the proposed amendment would amend Sec. 4C1.2(b)(2) to
broaden the definition of ``sex offense.'' Two options are provided.
Option 1 would revise the current definition of ``sex offense'' at
Sec. 4C1.1(b)(2) to also cover sexual abuse offenses against wards and
individuals in federal custody under 18 U.S.C. 2243(b) and (c).
Option 2 would expand the definition of ``sex offense'' at Sec.
4C1.1(b)(2) to cover all offenses described in the listed provisions
instead of only to offenses perpetrated against minors.
Proposed Amendment:
[Option 1:
Section 4C1.1(b)(2) is amended by striking `` `Sex offense' means
(A) an offense, perpetrated against a minor, under (i) chapter 109A of
title 18, United States Code; (ii) chapter 110 of title 18, not
including a recordkeeping offense; (iii) chapter 117 of title 18, not
including transmitting information about a minor or filing a factual
statement about an alien individual; or (iv) 18 U.S.C. 1591; or (B) an
attempt or a conspiracy to commit any offense described in
subparagraphs (A)(i) through (iv) of this definition''; and inserting:
`` `Sex offense' means (A) an offense under 18 U.S.C. 2243(b) or (c);
(B) an offense, perpetrated against a minor, under (i) chapter 109A of
title 18, United States Code; (ii) chapter 110 of title 18, not
including a recordkeeping offense; (iii) chapter 117 of title 18, not
including transmitting information about a minor or filing a factual
statement about an alien individual; or (iv) 18 U.S.C. 1591; or (C) an
attempt or a conspiracy to commit any offense described in
subparagraphs (A) and (B) of this definition''.]
[Option 2:
Section 4C1.1(b)(2) is amended by striking `` `Sex offense' means
(A) an offense, perpetrated against a minor, under''; and inserting ``
`Sex offense' means (A) an offense under''.]
6. Technical
Synopsis of Proposed Amendment: This proposed amendment would make
technical and other non-substantive changes to the Guidelines Manual.
The proposed amendment contains two parts (Part A and Part B). The
Commission is considering whether to promulgate either or both parts,
as they are not mutually exclusive.
Technical and Conforming Changes Relating to Sec. 4C1.1
In 2023, the Commission added a new Chapter Four guideline, at
Sec. 4C1.1 (Adjustment for Certain Zero-Point Offenders), providing a
decrease of 2 levels from the offense level determined under Chapters
Two and Three for ``zero-point'' offenders who meet certain criteria.
See USSG App. C, amendment 821 (effective Nov. 1, 2023). Part A of the
proposed amendment would make technical and conforming changes relating
to Sec. 4C1.1.
First, Part A of the proposed amendment would amend Sec. 4C1.1.
The 2-level adjustment for defendants with zero criminal history points
at Sec. 4C1.1 applies only if none of exclusionary criteria set forth
in subsections (a)(1) through (a)(10) applies. Among the exclusionary
criteria is subsection (a)(10), requiring that ``the defendant did not
receive an adjustment under Sec. 3B1.1 (Aggravating Role) and was not
engaged in a continuing criminal enterprise, as defined in 21 U.S.C.
848.'' Several provisions in Sec. 4C1.1 track similar language found
in the safety valve criteria at 18 U.S.C. 3553(f). In particular, Sec.
4C1.1(a)(10) mirrors 18 U.S.C. 3553(f)(4), which provides as a
requirement that ``the defendant was not an organizer, leader, manager,
or supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing criminal
enterprise, as defined in section 408 of the Controlled Substances
Act.''
Historically, courts have generally interpreted 18 U.S.C.
3553(f)(4) as excluding a defendant from safety valve eligibility if
such defendant had either an aggravating role or were engaged in a
continuing criminal enterprise, given the otherwise exclusionary
language beginning each phrase of subsection (f)(4) (i.e., ``the
defendant was not . . .'' and ``. . . was not engaged in''). The Sixth
and the Seventh Circuits have squarely addressed this issue and held
that defendants are ineligible for safety valve relief if they either
have an aggravating role or engaged in a continuing criminal
enterprise, but that it is not required to demonstrate both. See, e.g.,
United States v. Bazel, 80 F.3d 1140, 1143 (6th Cir. 1996); United
States v. Draheim, 958 F.3d 651, 660 (7th Cir. 2020).
The Commission intended Sec. 4C1.1(b)(10) to track the safety
valve criteria at 18 U.S.C. 3553(f)(4) and be applied by courts in the
same way--namely, that a defendant is ineligible for the adjustment if
the defendant meets either of the disqualifying conditions in the
provision. Nevertheless, since promulgation of new Sec. 4C1.1, several
stakeholders have raised the question of whether the ``and'' in the
subsection (a)(10) is conjunctive or disjunctive.
To address the confusion caused by the use of the word ``and'' in
that provision, Part A of the proposed amendment would make technical
changes to Sec. 4C1.1 to divide subsection (a)(10) into two separate
provisions, clarifying the Commission's intention that a defendant is
ineligible for the adjustment if the defendant meets either of the
disqualifying conditions listed in the provision.
Finally, Part A of the proposed amendment would make conforming
changes relating to Sec. 4C1.1 by adding necessary references to new
Chapter Four, Part C (Adjustment for Certain Zero-Point Offenders) in
subsection (a)(6) of Sec. 1B1.1 (Application Instructions), the
Introductory Commentary to Chapter Two (Offense Conduct), and the
Commentary to Sec. Sec. 3D1.1 (Procedure for Determining Offense Level
on Multiple Counts) and 3D1.5 (Determining the Total Punishment). These
guidelines and commentaries refer to the order in which the chapters of
the Guidelines Manual should be applied.
Additional Technical and Clerical Changes
Part B of the proposed amendment would make technical and clerical
changes to--
(1) the Commentary to Sec. 1B1.1 (Application Instructions), to
add headings to some application notes, provide stylistic consistency
in how subdivisions are designated, and correct a typographical error;
(2) Sec. 2B1.1 (Theft, Property Destruction, and Fraud), to
provide consistency in the use of capitalization and how subdivisions
are designated, and to correct a reference to the term ``equity
security'';
(3) the Commentary to Sec. 2B1.6 (Aggravated Identity Theft), to
correct
[[Page 89163]]
some typographical errors and provide stylistic consistency in how
subdivisions are designated;
(4) Sec. 2B3.1 (Robbery), to provide stylistic consistency in how
subdivisions are designated and add headings to the application notes
in the Commentary;
(5) Sec. 2B3.2 (Extortion by Force or Threat of Injury or Serious
Damage), to provide stylistic consistency in how subdivisions are
designated and add headings to some application notes in the
Commentary;
(6) Sec. 2C1.8 (Making, Receiving, or Failing to Report a
Contribution, Donation, or Expenditure in Violation of the Federal
Election Campaign Act; Fraudulently Misrepresenting Campaign Authority;
Soliciting or Receiving a Donation in Connection with an Election While
on Certain Federal Property), to provide consistency in the use of
capitalization;
(7) Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses)), to provide stylistic consistency in how subdivisions are
designated, make clerical changes to some controlled substances
references in the Drug Conversion Tables at Application Note 8(D) and
the Typical Weight Per Unit Table at Application Note 9, and correct a
reference to a statute in the Background commentary;
(8) the Background Commentary to Sec. 2D1.2 (Drug Offenses
Occurring Near Protected Locations or Involving Underage or Pregnant
Individuals; Attempt or Conspiracy), to correct a reference to a
statute;
(9) the Commentary to Sec. 2D1.5 (Continuing Criminal Enterprise;
Attempt or Conspiracy), to add headings to application notes and
correct a reference to a statutory provision;
(10) Sec. 2E2.1 (Making or Financing an Extortionate Extension of
Credit; Collecting an Extension of Credit by Extortionate Means), to
provide stylistic consistency in how subdivisions are designated and
add headings to the application notes in the Commentary;
(11) Sec. 2E3.1 (Gambling Offenses; Animal Fighting Offenses), to
provide stylistic consistency in how subdivisions are designated and
correct a reference to a statutory provision in the Commentary;
(12) Sec. 2H2.1 (Obstructing an Election or Registration), to
provide stylistic consistency in how subdivisions are designated and
add a heading to the application note in the Commentary;
(13) Sec. 2K1.4 (Arson; Property Damage by Use of Explosives), to
provide stylistic consistency in how subdivisions are designated;
(14) the Commentary to Sec. 2K2.4 (Use of Firearm, Armor-Piercing
Ammunition, or Explosive During or in Relation to Certain Crimes), to
correct some typographical errors;
(15) the Commentary to Sec. 2S1.1 (Laundering of Monetary
Instruments; Engaging in Monetary Transactions in Property Derived from
Unlawful Activity), to provide consistency in the use of capitalization
and how subdivisions are designated;
(16) Sec. 3B1.1 (Aggravating Role), to provide stylistic
consistency in how subdivisions are designated, add headings to the
application notes in the Commentary, and correct a typographical error;
(17) the Commentary to Sec. 3D1.1 (Procedure for Determining
Offense Level on Multiple Counts), to add a heading to an application
note;
(18) Sec. 4A1.1 (Criminal History Category), to provide stylistic
consistency in how subdivisions are designated and correct the headings
of the application notes in the Commentary;
(19) Sec. 4A1.2 (Definitions and Instructions for Computing
Criminal History), to provide stylistic consistency in how subdivisions
are designated;
(20) the Commentary to Sec. 5G1.2 (Sentencing on Multiple Counts
of Conviction), to provide stylistic consistency in how subdivisions
are designated, fix typographical errors in the Commentary, and update
an example that references 18 U.S.C. 924(c) (which was amended by the
First Step Act of 2018, Pub. L. 115-391 (2018));
(21) the Commentary to Sec. 5K1.1 (Substantial Assistance to
Authorities (Policy Statement)), to add headings to application notes
and correct a typographical error;
(22) Sec. 5K2.0 (Grounds for Departure (Policy Statement)), to
correct a typographical error and provide stylistic consistency in how
subdivisions are designated;
(23) Sec. 5E1.2 (Fines for Individual Defendants), to provide
stylistic consistency in how subdivisions are designated;
(24) Sec. 5F1.6 (Denial of Federal Benefits to Drug Traffickers
and Possessors), to provide consistency in the use of capitalization
and add a heading to an application note in the Commentary;
(25) Sec. 6A1.5 (Crime Victims' Rights (Policy Statement)), to
provide consistency in the use of capitalization; and
(26) the Commentary to Sec. 8B2.1 (Effective Compliance and Ethics
Program), to provide consistency in the use of capitalization.
(A) Technical and Conforming Changes Relating to Sec. 4C1.1
Proposed Amendment: Section 4C1.1(a) is amended--
in paragraph (9) by striking ``and'';
by striking paragraph (10) as follows:
``(10) the defendant did not receive an adjustment under Sec.
3B1.1 (Aggravating Role) and was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. 848;'';
and by inserting at the end the following new paragraphs (10) and
(11):
``(10) the defendant did not receive an adjustment under Sec.
3B1.1 (Aggravating Role); and
(11) the defendant was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. 848;''.
Section 1B1.1(a)(6) is amended by striking ``Part B of Chapter
Four'' and inserting ``Parts B and C of Chapter Four''.
Chapter Two is amended in the Introductory Commentary by striking
``Chapter Four, Part B (Career Offenders and Criminal Livelihood)'' and
inserting ``Chapter Four, Parts B (Career Offenders and Criminal
Livelihood) and C (Adjustment for Certain Zero-Point Offenders)''.
The Commentary to Sec. 3D1.1 captioned ``Background'' is amended
by striking ``Chapter Four, Part B (Career Offenders and Criminal
Livelihood)'' and inserting ``Chapter Four, Parts B (Career Offenders
and Criminal Livelihood) and C (Adjustment for Certain Zero-Point
Offenders)''.
The Commentary to Sec. 3D1.5 is amended by striking ``Chapter
Four, Part B (Career Offenders and Criminal Livelihood)'' and inserting
``Chapter Four, Parts B (Career Offenders and Criminal Livelihood) and
C (Adjustment for Certain Zero-Point Offenders)''.
(B) Additional Technical and Clerical Changes
Proposed Amendment: The Commentary to Sec. 1B1.1 captioned
``Application Notes'' is amended--
in Note 1 by inserting at the beginning the following new heading:
``Frequently Used Terms Defined.--'';
in Note 1(F) by striking ``subdivision'' and inserting ``clause'';
in Note 2 by inserting at the beginning the following new heading:
``Definition of Additional Terms.--''; and by striking ``case by case
basis'' and inserting ``case-by-case basis'';
in Note 3 by inserting at the beginning the following new heading:
``List of Statutory Provisions.--'';
in Note 4 by inserting at the beginning the following new heading:
[[Page 89164]]
``Cumulative Application of Multiple Adjustments.--'';
in Note 4(A) by striking ``subdivisions'' and inserting
``subparagraphs'';
and in Note 5 by inserting at the beginning the following new
heading: ``Two or More Guideline Provisions Equally Applicable.--''.
Section 2B1.1(b)(7) is amended by striking ``Federal'' and
inserting ``federal''; and by striking ``Government'' both places such
term appears and inserting ``government''.
Section 2B1.1(b)(17) is amended by striking ``subdivision'' both
places such term appears and inserting ``subparagraph''.
Section 2B1.1(b)(19)(B) is amended by striking ``subdivision'' and
inserting ``subparagraph''.
Section 2B1.1(c) is amended by striking ``subdivision'' and
inserting ``paragraph''.
The Commentary to 2B1.1 captioned ``Application Notes'' is
amended--
in Note 1 by striking '' `Equity securities' '' and inserting ``
`Equity security' '';
in Note 3(A) by striking ``subdivision'' and inserting
``subparagraph'';
in Note 3(A)(v) by striking ``subdivisions'' and inserting
``subclauses'';
in Note 3(F) by striking ``subdivision (A)'' and inserting
``subparagraph (A)'';
in Note 3(F)(i) by striking ``this subdivision'' and inserting
``this clause'';
in Note 3(F)(viii) by striking ``a Federal health care offense''
and inserting ``a federal health care offense''; and by striking
``Government health care program'' both places such term appears and
inserting ``government health care program'';
and in Note 4(C)(ii) by striking ``subdivision'' and inserting
``subparagraph''.
The Commentary to Sec. 2B6.1 captioned ``Application Notes'' is
amended in Note 1 by striking ``United State Code'' both places such
term appears and inserting ``United States Code''; and by striking
``subdivision'' and inserting ``subparagraph''.
Section 2B3.1(b)(3) is amended by striking ``subdivisions'' both
places such term appears and inserting ``subparagraphs''; and by
striking ``cumulative adjustments from (2) and (3)'' and inserting
``cumulative adjustments from application of paragraphs (2) and (3)''.
The Commentary to Sec. 2B3.1 captioned ``Application Notes'' is
amended--
in Note 1 by inserting at the beginning the following new heading:
``Definitions.--'';
in Note 2 by inserting at the beginning the following new heading:
``Dangerous Weapon.--'';
in Note 3 by inserting at the beginning the following new heading:
``Definition of `Loss'.--'';
in Note 4 by inserting at the beginning the following new heading:
``Cumulative Application of Subsections (b)(2) and (b)(3).--'';
in Note 5 by inserting at the beginning the following new heading:
``Upward Departure Provision.--'';
and in Note 6 by inserting at the beginning the following new
heading: `` `A Threat of Death'.--''.
Section 2B3.2(b)(3)(B) is amended by striking ``subdivisions'' and
inserting ``clauses''.
Section 2B3.2(b)(4) is amended by striking ``subdivisions'' both
places such term appears and inserting ``subparagraphs''; and by
striking ``cumulative adjustments from (3) and (4)'' and inserting
``cumulative adjustments from application of paragraphs (3) and (4)''.
The Commentary to Sec. 2B3.2 captioned ``Application Notes'' is
amended--
in Note 2 by inserting at the beginning the following new heading:
``Threat of Injury or Serious Damage.--'';
in Note 3 by inserting at the beginning the following new heading:
``Offenses Involving Public Officials and Other Extortion Offenses.--
'';
in Note 4 by inserting at the beginning the following new heading:
``Cumulative Application of Subsections (b)(3) and (b)(4).--'';
in Note 5 by inserting at the beginning the following new heading:
``Definition of `Loss to the Victim'.--'';
in Note 6 by inserting at the beginning the following new heading:
``Defendant's Preparation or Ability to Carry Out a Threat.--'';
in Note 7 by inserting at the beginning the following new heading:
``Upward Departure Based on Threat of Death or Serious Bodily Injury to
Numerous Victims.--'';
and in Note 8 by inserting at the beginning the following new
heading: ``Upward Departure Based on Organized Criminal Activity or
Threat to Family Member of Victim.--''.
Section 2C1.8(b)(3) is amended by striking ``Federal'' and
inserting ``federal''.
The Commentary to Sec. 2C1.8 captioned ``Application Notes'' is
amended in Note 2 by striking ``Federal'' both places such term appears
and inserting ``federal''; and by striking ``Presidential'' and
inserting ``presidential''.
Section 2D1.1(b)(14)(C)(ii) is amended by striking ``subdivision''
and inserting ``subparagraph''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended--
in Note 8(D)--
under the heading relating to LSD, PCP, and Other Schedule I and II
Hallucinogens (and their immediate precursors), by striking the
following:
``1 gm of 1-Piperidinocyclohexanecarbonitrile (PCC) = 680 gm
1 gm of 4-Bromo-2,5-Dimethoxyamphetamine (DOB) = 2.5 kg
1 gm of 2,5-Dimethoxy-4-methylamphetamine (DOM) = 1.67 kg
1 gm of 3,4-Methylenedioxyamphetamine (MDA) = 500 gm
1 gm of 3,4-Methylenedioxymethamphetamine (MDMA) = 500 gm
1 gm of 3,4-Methylenedioxy-N-ethylamphetamine (MDEA) = 500 gm'';
and inserting the following:
``1 gm of 1-Piperidinocyclohexanecarbonitrile (PCC) = 680 gm
1 gm of 2,5-Dimethoxy-4-methylamphetamine (DOM) = 1.67 kg
1 gm of 3,4-Methylenedioxyamphetamine (MDA) = 500 gm
1 gm of 3,4-Methylenedioxymethamphetamine (MDMA) = 500 gm
1 gm of 3,4-Methylenedioxy-N-ethylamphetamine (MDEA) = 500 gm
1 gm of 4-Bromo-2,5-Dimethoxyamphetamine (DOB) = 2.5 kg'';
and under the heading relating to Schedule III Substances (except
ketamine), by striking ``1 unit of a Schedule III Substance'' and
inserting ``1 unit of a Schedule III Substance (except Ketamine)'';
and in Note 9, under the heading relating to Hallucinogens, by
striking the following:
``2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg
MDA 250 mg
MDMA 250 mg
Mescaline 500 mg
PCP* 5 mg'';
and inserting the following:
``2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg
3,4-Methylenedioxyamphetamine (MDA) 250 mg
3,4-Methylenedioxymethamphetamine (MDMA) 250 mg
Mescaline 500 mg
Phencyclidine (PCP)* 5 mg''.
The Commentary to Sec. 2D1.1 captioned ``Background'' is amended
by striking ``Section 6453 of the Anti-Drug Abuse Act of 1988'' and
inserting ``section 6453 of Public Law 100-690''.
[[Page 89165]]
The Commentary to Sec. 2D1.2 captioned ``Background'' is amended
by striking ``Section 6454 of the Anti-Drug Abuse Act of 1988'' and
inserting ``section 6454 of Public Law 100-690''.
The Commentary to Sec. 2D1.5 captioned ``Application Notes'' is
amended--
in Note 1 by inserting at the beginning the following new heading:
``Inapplicability of Chapter Three Adjustment.--'';
in Note 2 by inserting at the beginning the following new heading:
``Upward Departure Provision.--'';
in Note 3 by inserting at the beginning the following new heading:
`` `Continuing Series of Violations'.--'';
and in Note 4 by inserting at the beginning the following new
heading: ``Multiple Counts.--''.
The Commentary to Sec. 2D1.5 captioned ``Background'' is amended
by striking ``Title 21 U.S.C. 848'' and inserting ``Section 848 of
title 21, United States Code,''.
Section 2E2.1(b)(2) is amended by striking ``subdivisions'' both
places such term appears and inserting ``subparagraphs''; and by
striking ``the combined increase from (1) and (2)'' and inserting ``the
combined increase from application of paragraphs (1) and (2)''.
The Commentary to Sec. 2E2.1 captioned ``Application Notes'' is
amended--
in Note 1 by inserting at the beginning the following new heading:
``Definitions.--'';
and in Note 2 by inserting at the beginning the following new
heading: ``Interpretation of Specific Offense Characteristics.--''.
Section 2E3.1(a)(1) is amended by striking ``subdivision'' and
inserting ``paragraph''.
The Commentary to Sec. 2E3.1 captioned ``Application Notes'' is
amended in Note 1 by striking ``Sec. 2156(g)'' and inserting ``Sec.
2156(f)''.
Section 2H2.1(a)(2) is amended by striking ``in (3)'' and inserting
``in paragraph (3)''.
The Commentary to Sec. 2H2.1 captioned ``Application Notes'' is
amended in Note 1 by inserting at the beginning the following new
heading: ``Upward Departure Provision.--''.
Section 2K1.4(b)(2) is amended by striking ``under (a)(4)'' and
inserting ``under subsection (a)(4)''.
The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is
amended in Note 1 by striking ``United State Code'' both place such
term appears and inserting ``United States Code''.
The Commentary to Sec. 2S1.1 captioned ``Application Notes'' is
amended--
in Note 1 by striking ``Federal'' and inserting ``federal'';
and in Note 4(B)(vi) by striking ``subdivisions'' and inserting
``clauses''.
Section 3B1.1(c) is amended by striking ``in (a) or (b)'' and
inserting ``in subsection (a) or (b)''.
The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is
amended--
in Note 1 by inserting at the beginning the following new heading:
``Definition of `Participant'.--'';
in Note 2 by inserting at the beginning the following new heading:
``Organizer, Leader, Manager, or Supervisor of One or More
Participants.--'';
in Note 3 by inserting at the beginning the following new heading:
`` `Otherwise Extensive'.--'';
and in Note 4 by inserting at the beginning the following new
heading: ``Factors to Consider.--''; and by striking ``decision
making'' and inserting ``decision-making''.
The Commentary to Sec. 3D1.1 captioned ``Application Notes'' is
amended in Note 2 by inserting at the beginning the following new
heading: ``Application of Subsection (b).--''.
Section 4A1.1(b) is amended by striking ``in (a)'' and inserting
``in subsection (a)''.
Section 4A1.1(c) is amended by striking ``in (a) or (b)'' and
inserting ``in subsection (a) or (b)''.
Section 4A1.1(d) is amended by striking ``under (a), (b), or (c)''
and inserting ``under subsection (a), (b), or (c)''.
The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is
amended--
in Note 1, in the heading, by striking ``Sec. 4A1.1(a).'' and
inserting ``Sec. 4A1.1(a).--'';
in Note 2, in the heading, by striking ``Sec. 4A1.1(b).'' and
inserting ``Sec. 4A1.1(b).--'';
in Note 3, in the heading, by striking ``Sec. 4A1.1(c).'' and
inserting ``Sec. 4A1.1(c).--'';
in Note 4, in the heading, by striking ``Sec. 4A1.1(d).'' and
inserting ``Sec. 4A1.1(d).--'';
and in Note 5, in the heading, by striking ``Sec. 4A1.1(e).'' and
inserting ``Sec. 4A1.1(e).--''.
Section 4A1.2(a)(2) is amended by striking ``by (A) or (B)'' and
inserting ``by subparagraph (A) or (B)''.
Section 4A1.2(d)(2)(B) is amended by striking ``in (A)'' and
inserting ``in subparagraph (A)''.
Section 5E1.2(c)(2) is amended by striking ``in (4)'' and inserting
``in paragraph (4)''.
Section 5F1.6 is amended by striking ``Federal'' and inserting
``federal''.
The Commentary to 5F1.6 captioned ``Application Notes'' is amended
in Note 1 by inserting at the beginning the following new heading:
``Definition of `Federal Benefit'.--''.
The Commentary to Sec. 5G1.2 captioned ``Application Notes'' is
amended--
in Note 1 by striking ``See Note 3'' and inserting ``See
Application Note 3''.
in Note 2(A) by striking ``subdivision'' and inserting
``subparagraph'';
in Note 4(B)(i) by striking ``a drug trafficking offense (5 year
mandatory minimum), and one count of violating 21 U.S.C. 841(b)(1)(C)
(20 year statutory maximum)'' and inserting ``a drug trafficking
offense (5-year mandatory minimum), and one count of violating 21
U.S.C. 841(b)(1)(C) (20-year statutory maximum)'';
in Note 4(B)(ii) by striking ``one count of 18 U.S.C. 924(c) (5
year mandatory minimum), and one count of violating 21 U.S.C.
841(b)(1)(C) (20 year statutory maximum)'' and inserting ``one count of
18 U.S.C. 924(c) (5-year mandatory minimum), and one count of violating
21 U.S.C. 841(b)(1)(C) (20-year statutory maximum)'';
and in Note 4(B)(iii) by striking the following:
``The defendant is convicted of two counts of 18 U.S.C. 924(c) (5
year mandatory minimum on first count, 25 year mandatory minimum on
second count) and one count of violating 18 U.S.C. 113(a)(3) (10 year
statutory maximum). Applying Sec. 4B1.1(c), the court determines that
a sentence of 460 months is appropriate (applicable guideline range of
460-485 months). The court then imposes (I) a sentence of 60 months on
the first 18 U.S.C. 924(c) count; (II) a sentence of 300 months on the
second 18 U.S.C. 924(c) count; and (III) a sentence of 100 months on
the 18 U.S.C. 113(a)(3) count. The sentence on each count is imposed to
run consecutively to the other counts.'';
and inserting the following:
``The defendant is convicted of two counts of 18 U.S.C. 924(c) (5-
year mandatory minimum on each count) and one count of violating 18
U.S.C. 113(a)(3) (10-year statutory maximum). Applying Sec. 4B1.1(c),
the court determines that a sentence of 262 months is appropriate
(applicable guideline range of 262-327 months). The court then imposes
(I) a sentence of 82 months on the first 18 U.S.C. 924(c) count; (II) a
sentence of 60 months on the second 18 U.S.C. 924(c) count; and (III) a
sentence of 120 months on the 18 U.S.C. 113(a)(3) count. The sentence
on each count is imposed to run consecutively to the other counts.''.
The Commentary to Sec. 5K1.1 captioned ``Application Notes'' is
amended--
in Note 1 by inserting at the beginning the following new heading:
``Sentence Below Statutorily Required Minimum Sentence.--'';
in Note 2 by inserting at the beginning the following new heading:
``Interaction
[[Page 89166]]
with Acceptance of Responsibility Reduction.--'';
and in Note 3 by inserting at the beginning the following new
heading: ``Government's Evaluation of Extent of Defendant's
Assistance.--''.
The Commentary to Sec. 5K1.1 captioned ``Background'' is amended
by striking ``in camera'' and inserting ``in camera''.
Section 5K2.0(e) is amended by striking ``in camera'' and inserting
``in camera''.
The Commentary to Sec. 5K2.0 captioned ``Application Notes'' is
amended in Note 3(C) by striking ``subdivision'' and inserting
``subparagraph''.
Section 6A1.5 is amended by striking ``Federal'' and inserting
``federal''.
The Commentary to Sec. 8B2.1 captioned ``Application Notes'' is
amended in Note 4(A) by striking ``any Federal, State,'' and inserting
``any federal, state,''.
7. Simplification of Three-Step Process
Synopsis of Proposed Amendment: In September 2023, the Commission
identified as one of its policy priorities for the amendment cycle
ending May 1, 2024, the ``exploration of ways to simplify the
guidelines and possible consideration of amendments that might be
appropriate.'' U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 88
FR 60536 (Sept. 1, 2023). Consistent with this priority, the Commission
is publishing these issues for comment and proposed amendment to inform
the Commission's consideration of these issues.
The Three-Step Process in the Guidelines Manual
The Sentencing Reform Act of 1984 (Title II of the Comprehensive
Crime Control Act of 1984) (the ``Act'') provides for the development
of guidelines that will further the basic purposes of criminal
sentencing: deterrence, incapacitation, retribution, and
rehabilitation. The Act delegates broad authority to the Commission to
review and rationalize the federal sentencing process. The Act contains
detailed instructions as to how this determination should be made, the
most important of which directs the Commission to establish categories
of offenses and categories of defendants for use in prescribing
guideline ranges that specify an appropriate sentence and to consider
whether, and to what extent, specific offense-based and offender-based
factors are relevant to sentencing. See 28 U.S.C. 994(c) and (d). In
relation to the establishment of categories of defendants, the Act
placed several limitations upon the Commission's ability to consider
certain personal and individual characteristics in establishing the
guidelines and policy statements. See 28 U.S.C. 994(d), (e).
In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court
held that the portion of 18 U.S.C. 3553 making the guidelines mandatory
was unconstitutional. The Court has further explained that the
guideline range, which reflects the defendant's criminal conduct and
the defendant's criminal history, should continue to be ``the starting
point and the initial benchmark'' in sentencing proceedings. See Gall
v. United States, 552 U.S. 38, 49 (2007); see also Peugh v. United
States, 569 U.S. 530 (2013) (noting that ``the post-Booker federal
sentencing system adopted procedural measures that make the guidelines
the `lodestone' of sentencing''). After determining the kinds of
sentence and guideline range, however, the court must also fully
consider the factors in 18 U.S.C. 3553(a), including, among other
factors, ``the nature and circumstances of the offense and the history
and characteristics of the defendant,'' to determine a sentence that is
sufficient but not greater than necessary.
In the wake of Booker and other cases, Sec. 1B1.1 (Application
Instructions) sets forth the instructions for determining the
applicable guideline range and type of sentence to impose, in
accordance with the Guidelines Manual. It sets forth a three-step
process for determining the sentence to be imposed, which is reflected
in the three main subdivisions of Sec. 1B1.1 (subsections (a) through
(c)). The three-step process can be summarized as follows: (1) the
court calculates the applicable guideline range and determines the
sentencing requirements and options related to probation, imprisonment,
supervision conditions, fines, and restitution; (2) the court considers
policy statements and guideline commentary relating to departures and
specific personal characteristics that might warrant consideration in
imposing the sentence; and (3) the court considers the applicable
factors in 18 U.S.C. 3553(a) in deciding what sentence to impose
(whether within the applicable guideline range, or whether as a
departure or as a variance (or as both)).
The first step in the three-step process, as set forth in Sec.
1B1.1(a), requires the court to calculate the applicable guideline
range and determine the kind of sentence by applying Chapters Two
(Offense Conduct), Three (Adjustments), and Four (Criminal History and
Criminal Livelihood), and Parts B through G of Chapter Five
(Determining the Sentence).
The second step in the three-step process, as set forth in Sec.
1B1.1(b), requires the court to consider ``Parts H and K of Chapter
Five, Specific Offender Characteristics and Departures, and any other
policy statements or commentary in the guidelines that might warrant
consideration in imposing sentence.'' Authorized grounds for departures
based on various circumstances of the offense, specific personal
characteristics of the offender, and certain procedural history of the
case are described throughout the Guidelines Manual: several Chapter
Two offense guidelines and Chapter Eight organizational guidelines
contain departure provisions within their corresponding Commentary;
grounds for departure based on criminal history are provided in Chapter
Four; and Chapter Five sets forth various policy statements with
additional grounds for departure. Chapter Five, Part H, addresses the
relevance of certain specific personal characteristics in sentencing by
allocating them into three general categories. The first category
includes specific personal characteristics that Congress has prohibited
from consideration or that the Commission has determined should be
prohibited. See, e.g., USSG Sec. 5H1.10 (Race, Sex, National Origin,
Creed, Religion, and Socio-Economic Status (Policy Statement)). The
second category includes specific personal characteristics that
Congress directed the Commission to ensure are reflected in the
guidelines and policy statements as generally inappropriate in
recommending a term of imprisonment or length of a term of
imprisonment. See, e.g., Sec. Sec. 5H1.2 (Employment Record); 5H1.6
(Family Ties and Responsibilities (Policy Statement)). The third
category includes specific personal characteristics that Congress
directed the Commission to consider in the guidelines only to the
extent that they have relevance to sentencing. See, e.g., USSG
Sec. Sec. 5H1.1 (Age (Policy Statement)); 5H1.3 (Mental and Emotional
Conditions (Policy Statement)).
The third step in the three-step process, as set forth in Sec.
1B1.1(c), requires the court to ``consider the applicable factors in 18
U.S.C. 3553(a) taken as a whole.'' Specifically, section 3553(a)
provides:
The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of
this subsection. The court, in determining the particular sentence to
be imposed, shall consider--
[[Page 89167]]
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for--
(A) the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines--
(i) issued by the Sentencing Commission pursuant to section
994(a)(1) of title 28, United States Code, subject to any amendments
made to such guidelines by act of Congress (regardless of whether such
amendments have yet to be incorporated by the Sentencing Commission
into amendments issued under section 994(p) of title 28); and
(ii) that, except as provided in section 3742(g), are in effect on
the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release,
the applicable guidelines or policy statements issued by the Sentencing
Commission pursuant to section 994(a)(3) of title 28, United States
Code, taking into account any amendments made to such guidelines or
policy statements by act of Congress (regardless of whether such
amendments have yet to be incorporated by the Sentencing Commission
into amendments issued under section 994(p) of title 28);
(5) any pertinent policy statement--
(A) issued by the Sentencing Commission pursuant to section
994(a)(2) of title 28, United States Code, subject to any amendments
made to such policy statement by act of Congress (regardless of whether
such amendments have yet to be incorporated by the Sentencing
Commission into amendments issued under section 994(p) of title 28);
and
(B) that, except as provided in section 3742(g), is in effect on
the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. 3553(a).
Post-Booker, courts have been using departures provided under step
two of the three-step process with less frequency in favor of
variances. Given this trend, the Commission has identified the
reconceptualization of the three-step process as one potential method
of simplifying the guidelines.
Proposed Amendment
The proposed amendment contains two parts. Part A contains issues
for comment on whether any changes should be made to the Guidelines
Manual relating to the three-step process set forth in Sec. 1B1.1 and
the use of departures and policy statements relating to specific
personal characteristics. Part B contains a proposed amendment that
would restructure the Guidelines Manual to simplify both (1) the
current three-step process utilized in determining a sentence that is
``sufficient, but not greater than necessary,'' and (2) existing
guidance in the Guidelines Manual regarding a court's consideration of
the individual circumstances of the defendant as well as certain
offense characteristics. The proposed amendment set forth in Part B
also seeks to better address the distinction between the statutory
limitations on the Commission's ability to consider certain offense
characteristics and individual circumstances in recommending a term of
imprisonment or length of imprisonment, and the requirement that the
court consider a broad range of individual and offense characteristics
in determining an appropriate sentence pursuant to 18 U.S.C. 3553(a).
The proposed amendment would make changes to better align the
requirements placed on the court and acknowledge the growing shift away
from the use of departures provided for within the Guidelines Manual in
the wake of Booker and subsequent decisions. See United States v.
Booker, 543 U.S. 220 (2005); Irizarry v. United States, 553 U.S. 708
(2008) (holding that Rule 32(h) of the Federal Rules of Criminal
Procedure, which requires a court to give ``reasonable notice'' that
the court is contemplating a ``departure'' from the recommended
guideline range on a ground not identified for departure in the
presentence report or in a party's prehearing submission, does not
apply to a ``variance'' from a recommended guideline range).
The proposed amendment would revise Chapter One in multiple ways.
First, it would delete the ``Original Introduction to the Guidelines
Manual'' currently contained in Chapter One, Part A. This introduction
would be published as a historical background in Appendix B (Selected
Sentencing Statutes) of the Guidelines Manual. Second, the proposed
amendment would revise the application instructions provided in Sec.
1B1.1 to reflect the simplification of the three-step process into two
steps. Additionally, the definition of ``departures'' is removed from
the application notes to Sec. 1B1.1, and the Background Commentary is
revised accordingly.
Consistent with the revised approach, the proposed amendment would
reclassify most ``departures'' currently provided throughout the
Guidelines Manual. Under the new approach, current departure provisions
would be retained in more generalized language. Instead of being
identified as departures, they would be generally reclassified as
``Additional Considerations'' that may be relevant to the court's
determination under 18 U.S.C. 3553(a). Changes would be made throughout
the Guidelines Manual by revising the departure provisions currently
contained in commentary to various guidelines. Such provisions would be
maintained in a new section to the commentary titled ``Additional
Considerations'' and are intended to retain, to the extent possible,
the guidance and considerations provided by the deleted provisions and
to be neutral as to the scope and content of the conduct covered.
The proposed amendment would also retitle Chapter Five to reflect
its focus on the rules pertaining to the calculation of the guideline
range, specifically to better reflect the chapter's purpose in the
introductory commentary noting that ``a sentence is within the
guidelines if it complies with each applicable section of this
chapter.'' All current provisions contained in Chapter Five, Part H
(Specific Offender Characteristics) would be deleted. Similarly, most
of the provisions in Chapter Five, Part K (Departures), would be
deleted. Only the provisions pertaining to substantial assistance would
be retained, while the provision pertaining to early disposition
programs would be moved to a new Part F in Chapter Three.
The proposed amendment would also create a new Chapter Six
(renumbering existing chapters accordingly) to facilitate the court's
consideration of 18 U.S.C. 3553(a). The new chapter is divided into
three guidelines. The first generally reflects the court's
consideration of the section 3553(a) factors and specifically
references those
[[Page 89168]]
factors. The second and third guidelines compile factors which
generally are not considered in the calculation of the guideline range
in Chapters Two through Five, but which may be relevant to the court's
consideration of ``the nature and circumstances of the offense and the
history and characteristics of the defendant'' pursuant to 18 U.S.C.
3553(a)(1). These factors set forth reasons from former Parts H and K
of Chapter Five, including factors that are generally not considered in
the calculation of the guideline range in Chapters Two through Five,
but which courts regularly consider pursuant to section 3553(a). While
the list of factors is provided to both facilitate the court's
consideration and to assist with the collection of data by the
Commission, the proposed amendment includes language recognizing that
the nature, extent, and significance of specific personal
characteristics can involve a range of considerations that are
difficult or impossible to quantify for purposes of establishing the
guideline ranges. As such, the new chapter notes that the factors
identified are not weighted in any manner or intended to be
comprehensive or to otherwise infringe upon the court's unique position
to determine the most appropriate sentence.
The issues for comment set forth below are informed by the proposed
amendment contained in Part B. In addition to receiving input from the
issues for comment below, the Commission anticipates both general
comment on Part B of the proposed amendment and welcomes line edits on
the specific changes proposed.
(A) Issues for Comment
1. Part B of the proposed amendment would reconceptualize and
simplify the three-step process, as set forth in Sec. 1B1.1
(Application Instructions), to streamline the application of the
Guidelines Manual and to better reflect the interaction between 18
U.S.C. 3553(a) and the guidelines. It would do so by removing the
second step in the three-step process, as set forth in Sec. 1B1.1(b),
requiring the court to consider the departure provisions set forth
throughout the Guidelines Manual and the policy statements contained in
Chapter Five, Part H, relating to specific personal characteristics.
The Guidelines Manual currently contains more than two hundred
departure provisions in Chapter Five, Part K, and the commentary to
various guidelines elsewhere in the Manual. Chapter Five, Part H,
contains twelve policy statements addressing the relevance of certain
specific personal characteristics in sentencing. The Commission invites
general comment on whether the Commission should reconceptualize and
simplify the three-step process in this manner. If so, what, if any,
revisions would be appropriate to further the Commission's goal to
reconceptualize and simplify the three-step process? If not, are there
any other approaches that the Commission should consider to
reconceptualize and simplify the three-step process, and if so, what
are they?
2. The Commission seeks comment on whether revising the three-step
process either in general or as implemented in any particular provision
in Part B of the proposed amendment, is consistent with 28 U.S.C. 994
and 995 and all other provisions of federal law. In particular, the
Commission seeks comment regarding whether providing guidance to the
courts regarding consideration of the other factors in 18 U.S.C.
3553(a), including providing examples of factors that may be relevant
to the court's determination of the appropriate sentence, is consistent
with the Commission's authority. Similarly, the Commission seeks
comment on whether revising the three-step process is consistent with
other congressional directives to the Commission.
3. The proposed amendment contained in Part B would continue to
account for factors contained in most of the two hundred departure
provisions in Chapter Five, Parts H and K, and the commentary to
various guidelines in different ways. If the Commission were to remove
the second step in the three-step process, as proposed in Part B,
should the Commission continue to account for these factors? If so, how
and why? Should the Commission account for these factors in the manner
set forth in Part B of the proposed amendment? If not, should the
Commission consider a different approach? For example, should the
Commission remove some or all of the specific factors and rely on
[…truncated; see source link]Indexed from Federal Register on December 26, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.