Notice2024-31279
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
January 2, 2025
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 proposed amendment. This notice also sets forth several issues for comment, some of which are set forth together with the proposed amendments, and one of which (regarding retroactive application of proposed amendments) is set forth in the Supplementary Information section of this notice.
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[Federal Register Volume 90, Number 1 (Thursday, January 2, 2025)]
[Notices]
[Pages 128-183]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31279]
[[Page 127]]
Vol. 90
Thursday,
No. 1
January 2, 2025
Part II
United States Sentencing Commission
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Sentencing Guidelines for United States Courts; Notice
Federal Register / Vol. 90, No. 1 / Thursday, January 2, 2025 /
Notices
[[Page 128]]
UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice and request for public comment and hearing.
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SUMMARY: The United States Sentencing Commission is considering
promulgating amendments to the sentencing guidelines, policy
statements, and commentary. This notice sets forth the proposed
amendments and, for each proposed amendment, a synopsis of the issues
addressed by that proposed amendment. This notice also sets forth
several issues for comment, some of which are set forth together with
the proposed amendments, and one of which (regarding retroactive
application of proposed amendments) is set forth in the Supplementary
Information section of this notice.
DATES:
Written Public Comment. Written public comment regarding the
proposed amendments and issues for comment set forth in this notice,
including public comment regarding retroactive application of any of
the proposed amendments, should be received by the Commission not later
than February 3, 2025. Written reply comments, which may only respond
to issues raised during the original comment period, should be received
by the Commission not later than February 18, 2025. Public comment
regarding a proposed amendment received after the close of the comment
period, and reply comment received on issues not raised during the
original comment period, may not be considered.
Public Hearing. The Commission may hold a public hearing regarding
the proposed amendments and issues for comment set forth in this
notice. Further information regarding any public hearing that may be
scheduled, including requirements for testifying and providing written
testimony, as well as the date, time, location, and scope of the
hearing, will be provided by the Commission on its website at
<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 relating to Sec. 4B1.2 (Definitions of
Terms Used in Section 4B1.1), including amendments to (A) Sec. 4B1.2
to eliminate the use of the categorical and modified categorical
approaches by providing a definition for ``crime of violence'' that is
based on a defendant's conduct and a definition of ``controlled
substance offense'' that lists specific federal drug statutes; (B) the
commentary to the guidelines that use the terms ``crime of violence''
and ``controlled substance offense'' and define these terms by making
specific reference to Sec. 4B1.2; and (C) related issues for comment.
(2) A two-part proposed amendment to Sec. 2K2.1 (Unlawful Receipt,
Possession, or Transportation of Firearms or Ammunition; Prohibited
Transactions Involving Firearms or Ammunition), including (A)
amendments to Sec. 2K2.1 to address its application to offenses
involving machinegun conversion devices (MCDs), and related issues for
comment; and (B) an amendment to Sec. 2K2.1(b)(4) to establish a mens
rea requirement for the enhancements for stolen firearms and firearms
with modified serial numbers, and a related issue for comment.
(3) A two-part proposed amendment addressing certain circuit
conflicts involving Sec. 2B3.1 (Robbery) and Sec. 4A1.2 (Definitions
and Instructions for Computing Criminal History), including (A) three
options for amending Sec. 2B3.1(b)(4)(B) to address a circuit conflict
concerning whether the ``physically restrained'' enhancement can be
applied to situations in which a victim is restricted from moving at
gunpoint but is not otherwise immobilized through physical measures
such as those listed in the ``physically restrained'' definition set
forth in the Commentary to Sec. 1B1.1 (Application Instructions), and
related issues for comment; and (B) an amendment to Sec. 4A1.2(a)(2)
to address a circuit conflict concerning whether a traffic stop is an
``intervening arrest'' for purposes of determining whether multiple
prior sentences should be ``counted separately or treated as a single
sentence'' when assigning criminal history points (``single-sentence
rule'').
(4) 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
[[Page 129]]
``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-2025-amendments-federal-sentencing-guidelines-published-december-2024">https://www.ussc.gov/guidelines/amendments/proposed-2025-amendments-federal-sentencing-guidelines-published-december-2024</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. Career Offender
Synopsis of Proposed Amendment: In August 2024, the Commission
identified as one of its policy priorities for the amendment cycle
ending May 1, 2025, ``[s]implifying the guidelines and clarifying their
role in sentencing,'' including ``revising the `categorical approach'
for purposes of the career offender guideline.'' U.S. Sent'g Comm'n,
``Notice of Final Priorities,'' 89 FR 66176 (Aug. 14, 2024).
The proposed amendment addresses recurrent criticism of the
categorical approach and modified categorical approach, which courts
have applied in the context of Sec. 4B1.1 (Career Offender). It would
eliminate the categorical approach when determining whether an offense
qualifies as a crime of violence by providing a definition for ``crime
of violence'' that is based on a defendant's conduct and a definition
of ``controlled substance offense'' that is limited to specific federal
drug statutes. These changes are intended to correct some of the
``odd'' and ``arbitrary'' results that the categorical approach has
produced relating to the ``crime of violence'' definition (see, e.g.,
United States v. Davis, 875 F.3d 592, 595 (11th Cir. 2017); United
States v. McCollum, 885 F.3d 300, 309-14 (4th Cir. 2018) (Traxler, J.,
concurring); id. (Wilkinson, J., dissenting)), and to provide a
definition of ``controlled substance offense'' that is based on
enumerated federal drug trafficking offenses.
The Categorical Approach as Developed by Supreme Court Jurisprudence
Several statutes and guidelines provide enhanced penalties for
defendants convicted of offenses that meet the definition of a
particular category of crimes. Courts typically determine whether a
conviction fits within the definition of a particular category of
crimes through the application of the ``categorical approach'' and
``modified categorical approach,'' as set forth by Supreme Court
jurisprudence. The categorical and modified categorical approaches
require courts to look only to the elements of the offense, rather than
the particular facts underlying the conviction, to determine whether
the offense meets the definition of a particular category of crimes. In
applying the modified categorical approach, courts may look to certain
additional sources of information, now commonly referred to as the
``Shepard documents,'' to determine the elements of the offense of
conviction. See Taylor v. United States, 495 U.S. 575 (1990) (holding
that, under the ``categorical approach,'' courts must compare the
elements of the offense as described in the statute of conviction to
the elements of the applicable definition of a particular category of
crimes to determine if such offense criminalizes the same or a narrower
range of conduct than the definition captures in order to serve as a
predicate offense); Shepard v. United States, 544 U.S. 13 (2005)
(holding that courts may use a ``modified categorical approach'' in
cases where the statute of conviction is ``overbroad,'' that is, the
statute contains multiple offenses with different offense elements).
Application of the Categorical Approach in the Guidelines
Supreme Court jurisprudence on this subject pertains to statutory
provisions (e.g., 18 U.S.C. 924(e)), but courts have applied the
categorical and modified categorical approaches to guideline
provisions. For example, courts have used these approaches to determine
if a conviction is a ``crime of violence'' or a ``controlled substance
offense'' for purposes of applying the career offender guideline at
Sec. 4B1.1.
Commission data indicates that of the 64,124 individuals sentenced
in fiscal year 2023, 1,351 individuals (2.1%) were sentenced under the
career offender guideline. While representing a relatively small
portion of the federal caseload each year, the categorical approach
continues to result in substantial litigation.
General Criticism of the Categorical Approach as Developed by Supreme
Court Jurisprudence
The Commission has received significant comment over the years
regarding the complexity and limitations of the categorical approach,
as developed by Supreme Court jurisprudence. Courts have criticized the
categorical approach as a ``legal fiction,'' in which an offense that a
defendant commits violently is deemed to be a non-violent offense
because other defendants at other times could have been convicted of
violating the same statute without violence, often leading to ``odd''
and ``arbitrary'' results (e.g., United States v. Davis, 875 F.3d 592,
595 (11th Cir. 2017); United States v. McCollum, 885 F.3d 300, 309-14
(4th Cir. 2018) (Traxler, J., concurring); id. (Wilkinson, J.,
dissenting)).
Feedback From Stakeholders
The Commission has also received input at roundtable discussions
with several stakeholders with diverse perspective and expertise within
the criminal justice system. Many stakeholders suggested that the
Commission should eliminate the categorical approach to capture violent
offenses that are currently excluded while also narrowing the scope of
the ``controlled substance offense'' definition, particularly its reach
over predicate offenses. Many stakeholders also recommend that the
definition of ``controlled substance offense'' should only cover
federal drug offenses and
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exclude prior state drug offenses for purposes of the career offender
guideline.
Many stakeholders have remarked that the Commission should limit
the number of qualifying prior offenses overall for purposes the career
offender guideline. Some stakeholders suggested that the Commission
should condition which convictions qualify as predicate offenses by
establishing a minimum sentence length threshold.
Proposed Changes to Sec. 4B1.2
The proposed amendment would amend Sec. 4B1.2 (Definitions of
Terms Used in Section 4B1.1) in several ways.
First, the proposed amendment would move the definition of
``controlled substance offense'' from subsection (b) to subsection (a).
It would also revise the definition of ``controlled substance offense''
to exclude state drug offenses from the scope of its application by
listing specific federal statutes relating to drug offenses. The
proposed amendment lists the federal statutes that are controlled
substance offenses under the current definition to maintain the status
quo with respect to federal drug trafficking statutes. The federal drug
trafficking statutes that do not appear in brackets are specifically
referenced in the career offender directive at 28 U.S.C. 994(h). The
proposed amendment would also move to subsection (a) the provision
currently located in Commentary to Sec. 4B1.2 stating that a violation
of 18 U.S.C. 924(c) or 929(a) is a ``controlled substance offense'' if
the offense of conviction established that the underlying offense was a
``controlled substance offense.''
Second, the proposed amendment would place all provisions related
to ``crime of violence'' in subsection (b). It would define the term
``crime of violence'' based on the defendant's own offense conduct
which, consistent with subsection (a)(1)(A) of Sec. 1B1.3 (Relevant
Conduct), is the conduct that the defendant committed, aided or
abetted, counseled, commanded, induced, procured, or willfully caused
during the commission of the offense, in preparation for that offense,
or in the course of attempting to avoid detection or responsibility for
that offense. It provides a list of types of qualifying conduct that
includes a ``force clause'' at Sec. 4B1.2(b)(1)(A) (which closely
tracks the language of current Sec. 4B1.2(a)(1) but would incorporate
a parenthetical insert defining the term ``physical force'' as ``force
capable of causing physical pain or injury to another person'') and
provisions relating to conduct that would constitute certain specific
offenses that currently qualify as a ``crime of violence,'' such as
forcible sex offenses, robbery, arson, and extortion. The proposed
amendment would also include a provision at subsection (b)(2) that
would allow certain inchoate offenses to still qualify as ``crimes of
violence.'' In addition, the proposed amendment would require the
government to make a prima facie showing that an offense is a ``crime
of violence'' by using only a specific list of sources of information
from the record.
Third, the proposed amendment sets forth three options for setting
a minimum sentence length requirement for a prior conviction to qualify
as a ``crime of violence'' or ``controlled substance offense.'' Option
1 would limit qualifying prior convictions to only convictions that are
counted separately under Sec. 4A1.1(a) [or (b)]. Option 2 would limit
qualifying prior convictions to only convictions that resulted in a
sentence imposed of [five years][three years][one year] or more that
are counted separately under Sec. 4A1.1(a) [or (b)]. Option 2 brackets
the possibility of including a provision that provides that a
conviction shall not qualify as a prior felony conviction under Sec.
4B1.2 if the defendant can establish that the conviction resulted in a
sentence for which the defendant served less than [three years] [two
years][six months] in prison. Option 3 would limit qualifying prior
convictions to only convictions that resulted in a sentence for which
the defendant served [five years][three years][one year] or more in
prison and that are counted separately under Sec. 4A1.1(a) [or (b)].
All three options include two suboptions. Suboption A in each option
would set the minimum sentence length requirement for purposes of both
``crime of violence'' and ``controlled substance offense.'' Suboption B
in each option would set the minimum sentence length requirement for
purposes of ``crime of violence'' only.
Changes to Other Guidelines
The current definitions of ``crime of violence'' and ``controlled
substance'' at Sec. 4B1.2 are incorporated by reference in several
other guidelines in the Guidelines Manual. The proposed amendment would
maintain the status quo by amending the Commentary to these guidelines
to incorporate the relevant part or parts of Sec. 4B1.2. The proposed
amendment would make such changes to Sec. 2K1.3 (Unlawful Receipt,
Possession, or Transportation of Explosive Materials; Prohibited
Transactions Involving Explosive Materials), Sec. 2K2.1 (Unlawful
Receipt, Possession, or Transportation of Firearms or Ammunition;
Prohibited Transactions Involving Firearms or Ammunition), Sec. 2S1.1
(Laundering of Monetary Instruments; Engaging in Monetary Transactions
in Property Derived from Unlawful Activity), Sec. 4A1.2 (Definitions
and Instructions for Computing Criminal History), Sec. 4B1.4 (Armed
Career Criminal), Sec. 5K2.17 (Semiautomatic Firearms Capable of
Accepting Large Capacity Magazine (Policy Statement)), and Sec. 7B1.1
(Classification of Violations (Policy Statement)).
Issues for comment are also provided.
Proposed Amendment
Section 4B1.2 is amended by striking the following:
``(a) Crime of Violence.--The term `crime of violence' means any
offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that--
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(2) is murder, voluntary manslaughter, kidnapping, aggravated
assault, a forcible sex offense, robbery, arson, extortion, or the use
or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or
explosive material as defined in 18 U.S.C. 841(c).
(b) Controlled Substance Offense.--The term `controlled substance
offense' means an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that--
(1) prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or
the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense; or
(2) is an offense described in 46 U.S.C. 70503(a) or Sec.
70506(b).
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means (1) the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense),
and (2) the sentences for at least two of the aforementioned felony
convictions are counted separately under the provisions of Sec.
4A1.1(a), (b), or (c). The date that a defendant sustained a conviction
shall be the date that the guilt of the defendant has been established,
whether
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by guilty plea, trial, or plea of nolo contendere.
(d) Inchoate Offenses Included.--The terms `crime of violence' and
`controlled substance offense' include the offenses of aiding and
abetting, attempting to commit, or conspiring to commit any such
offense.
(e) Additional Definitions.--
(1) Forcible Sex Offense.--`Forcible sex offense' includes where
consent to the conduct is not given or is not legally valid, such as
where consent to the conduct is involuntary, incompetent, or coerced.
The offenses of sexual abuse of a minor and statutory rape are included
only if the sexual abuse of a minor or statutory rape was (A) an
offense described in 18 U.S.C. 2241(c) or (B) an offense under state
law that would have been an offense under section 2241(c) if the
offense had occurred within the special maritime and territorial
jurisdiction of the United States.
(2) Extortion.--`Extortion' is obtaining something of value from
another by the wrongful use of (A) force, (B) fear of physical injury,
or (C) threat of physical injury.
(3) Robbery.--`Robbery' is the unlawful taking or obtaining of
personal property from the person or in the presence of another,
against his will, by means of actual or threatened force, or violence,
or fear of injury, immediate or future, to his person or property, or
property in his custody or possession, or the person or property of a
relative or member of his family or of anyone in his company at the
time of the taking or obtaining. The phrase `actual or threatened
force' refers to force that is sufficient to overcome a victim's
resistance.
(4) Prior Felony Conviction.--`Prior felony conviction' means a
prior adult federal or state conviction for an offense punishable by
death or imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed. A conviction for an offense
committed at age eighteen or older is an adult conviction. 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).
Commentary
Application Notes:
1. Further Considerations Regarding `Crime of Violence' and
`Controlled Substance Offense'.--For purposes of this guideline--
Unlawfully possessing a listed chemical with intent to manufacture
a controlled substance (21 U.S.C. 841(c)(1)) is a `controlled substance
offense.'
Unlawfully possessing a prohibited flask or equipment with intent
to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a
`controlled substance offense.'
Maintaining any place for the purpose of facilitating a drug
offense (21 U.S.C. 856) is a `controlled substance offense' if the
offense of conviction established that the underlying offense (the
offense facilitated) was a `controlled substance offense.'
Using a communications facility in committing, causing, or
facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled
substance offense' if the offense of conviction established that the
underlying offense (the offense committed, caused, or facilitated) was
a `controlled substance offense.'
A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a `crime of
violence' or a `controlled substance offense' if the offense of
conviction established that the underlying offense was a `crime of
violence' or a `controlled substance offense'. (Note that in the case
of a prior 18 U.S.C. 924(c) or Sec. 929(a) conviction, if the
defendant also was convicted of the underlying offense, the sentences
for the two prior convictions will be treated as a single sentence
under Sec. 4A1.2 (Definitions and Instructions for Computing Criminal
History).)
2. Offense of Conviction as Focus of Inquiry.--Section 4B1.1
(Career Offender) expressly provides that the instant and prior
offenses must be crimes of violence or controlled substance offenses of
which the defendant was convicted. Therefore, in determining whether an
offense is a crime of violence or controlled substance for the purposes
of Sec. 4B1.1 (Career Offender), the offense of conviction (i.e., the
conduct of which the defendant was convicted) is the focus of inquiry.
3. Applicability of Sec. 4A1.2.--The provisions of Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History) are
applicable to the counting of convictions under Sec. 4B1.1.
4. Upward Departure for Burglary Involving Violence.--There may be
cases in which a burglary involves violence, but does not qualify as a
`crime of violence' as defined in Sec. 4B1.2(a) and, as a result, the
defendant does not receive a higher offense level or higher Criminal
History Category that would have applied if the burglary qualified as a
`crime of violence.' In such a case, an upward departure may be
appropriate.'';
and inserting the following:
``(a) Controlled Substance Offense.--
(1) Definition.--The term `controlled substance offense' means an
offense under 21 U.S.C. 841, Sec. 952(a), Sec. 955, or Sec. 959, or
46 U.S.C. 70503(a) or Sec. 70506(b), [or 21 U.S.C. 843(a)(6), Sec.
843(b), Sec. 846 (if the object of the conspiracy or attempt was to
commit an offense covered by this provision), Sec. 856, Sec. 860,
Sec. 960, or Sec. 963 (if the object of the conspiracy or attempt was
to commit an offense covered by this provision)].
(2) Additional Consideration.--A violation of 18 U.S.C. 924(c) or
Sec. 929(a) is a `controlled substance offense' if the offense of
conviction established that the underlying offense was a `controlled
substance offense.' (Note that in the case of a prior 18 U.S.C. 924(c)
or Sec. 929(a) conviction, if the defendant also was convicted of the
underlying offense, the sentences for the two prior convictions will be
treated as a single sentence under Sec. 4A1.2 (Definitions and
Instructions for Computing Criminal History).)
(b) Crime of Violence.--
(1) Definition.--The term `crime of violence' means any offense
under federal or state law, punishable by imprisonment for a term
exceeding one year, in which the defendant engaged in any of the
following conduct:
(A) The use, attempted use, or threatened use of physical force
(i.e., force capable of causing physical pain or injury to another
person) against the person of another.
(B) A sexual act with a person where the person does not consent or
gives consent that is not legally valid (such as involuntary,
incompetent, or coerced consent). However, conduct constituting sexual
abuse of a minor and statutory rape is included only if the defendant
engaged in conduct that constitutes (i) an offense described in 18
U.S.C. 2241(c), or (ii) an offense under state law that would have been
an offense under 18 U.S.C. 2241(c) if the offense had occurred within
the special maritime and territorial jurisdiction of the United States.
(C) The unlawful taking or obtaining of personal property from a
person, or in the presence of a person, against the person's will by
means of actual or threatened force (i.e., force that is sufficient to
overcome a victim's resistance), or violence, or fear of injury
against: (i) the person, the property of such person, or property in
the custody
[[Page 132]]
or possession of such person; (ii) a relative or family member of the
person, or the property of such relative or family member; or (iii)
anyone in the company of the person at the time of the taking or
obtaining, or their property.
(D) The obtaining something of value from another by the wrongful
use of (i) force, (ii) fear of physical injury, or (iii) threat of
physical injury.
(E) The willful or malicious setting of fire to or burning of
property.
(F) The use or unlawful possession of a firearm described in 26
U.S.C. 5845(a) or explosive materials as defined in 18 U.S.C. 841(c).
(2) Covered Inchoate Offenses.--An offense is a `crime of violence'
if the defendant engaged in any of the conduct described in subsection
(b)(1) regardless of whether the offense of conviction was for a
substantive offense, aiding and abetting the commission of an offense,
attempting to commit an offense, or conspiring to commit an offense.
(3) Determination of Whether an Offense Is a `Crime of Violence'.--
In determining whether an offense is a `crime of violence,' the focus
of inquiry is on the conduct that the defendant committed, aided or
abetted, counseled, commanded, induced, procured, or willfully caused
during the commission of the offense, in preparation for that offense,
or in the course of attempting to avoid detection or responsibility for
that offense. See subsection (a)(1)(A) of Sec. 1B1.3 (Relevant
Conduct).
(4) Sources of Information.--In making a prima facie showing that
the offense is a `crime of violence,' the government may only use the
following sources of information from the record:
(A) The charging document.
(B) The jury instructions and accompanying verdict form.
(C) The plea agreement or transcript of colloquy between judge and
defendant in which the factual basis of the guilty plea was confirmed
by the defendant.
[(D) The judge's formal rulings of law or findings of fact.
(E) The judgment of conviction.
(F) Any explicit factual finding by the trial judge to which the
defendant assented.]
(G) Any comparable judicial record of the sources described in
paragraphs (A) through (F).
[Option 1 for Subsection (c) (Limiting Prior Convictions to
Sentences Receiving Points under Sec. 4A1.1(a)[or (b)]):
[Suboption 1A (Limitation applicable to both ``crime of violence''
and ``controlled substance offense''):
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means: (1) the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense);
and (2) the sentences for at least two of the aforementioned felony
convictions are counted separately under Sec. 4A1.1(a) [or (b)]. The
date that a defendant sustained a conviction shall be the date that the
guilt of the defendant has been established, whether by guilty plea,
trial, or plea of nolo contendere.]
[Suboption 1B (Limitation applicable only to ``crime of
violence''):
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense).
The date that a defendant sustained a conviction shall be the date that
the guilt of the defendant has been established, whether by guilty
plea, trial, or plea of nolo contendere. For purposes of determining
whether the defendant sustained at least two felony convictions of
either a crime of violence or a controlled substance offense, use only:
(1) any such felony conviction of a `controlled substance offense' that
is counted separately under Sec. 4A1.1(a), (b), or (c); or (2) any
such felony conviction of a `crime of violence' that is counted
separately under Sec. 4A1.1(a) [or (b)].]]
[Option 2 for Subsection (c) (Limiting Prior Convictions Through a
Sentence-Imposed Approach):
[Suboption 2A (Limitation applicable to both ``crime of violence''
and ``controlled substance offense''):
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means: (1) the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense);
and (2) each of at least two of the aforementioned felony convictions
(A) is counted separately under Sec. 4A1.1(a) [or (b)], and (B)
resulted in a sentence imposed of [five years][three years][one year]
or more. The date that a defendant sustained a conviction shall be the
date that the guilt of the defendant has been established, whether by
guilty plea, trial, or plea of nolo contendere. For purposes of this
provision, `sentence imposed' has the meaning given the term `sentence
of imprisonment' in Sec. 4A1.2(b) and Application Note 2 of the
Commentary to Sec. 4A1.2. The length of the sentence imposed includes
any term of imprisonment given upon revocation of probation, parole, or
supervised release, regardless of when the revocation occurred.
[A conviction shall not qualify as a prior felony conviction under
this provision if the defendant can establish that the conviction
resulted in a sentence for which the defendant served less than [three
years] [two years][six months] in prison.]]
[Suboption 2B (Limitation applicable only to ``crime of
violence''):
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense).
The date that a defendant sustained a conviction shall be the date that
the guilt of the defendant has been established, whether by guilty
plea, trial, or plea of nolo contendere. For purposes of determining
whether the defendant sustained at least two felony convictions of
either a crime of violence or a controlled substance offense, use only:
(1) any such felony conviction of a `controlled substance offense' that
is counted separately under Sec. 4A1.1(a), (b), or (c); or (2) any
such felony conviction of a `crime of violence' that (A) is counted
separately under Sec. 4A1.1(a) [or (b)], and (B) resulted in a
sentence imposed of [five years][three years][one year] or more. For
purposes of this provision, `sentence imposed' has the meaning given
the term `sentence of imprisonment' in Sec. 4A1.2(b) and Application
Note 2 of the Commentary to Sec. 4A1.2. The length of the sentence
imposed includes any term of imprisonment given upon revocation of
probation, parole, or supervised release, regardless of when the
revocation occurred.
[[Page 133]]
[A conviction of a crime of violence shall not qualify as a prior
felony conviction under this provision if the defendant can establish
that the conviction resulted in a sentence for which the defendant
served less than [three years] [two years][six months] in prison.]]]
[Option 3 for Subsection (c) (Limiting Prior Convictions Through a
Time-Served Approach):
[Suboption 3A (Limitation applicable to both ``crime of violence''
and ``controlled substance offense''):
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means: (1) the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense);
and (2) each of at least two of the aforementioned felony convictions
(A) is counted separately under Sec. 4A1.1(a) [or (b)], and (B)
resulted in a sentence for which the defendant served [five
years][three years][one year] or more in prison. The date that a
defendant sustained a conviction shall be the date that the guilt of
the defendant has been established, whether by guilty plea, trial, or
plea of nolo contendere.]
[Suboption 3B (Limitation applicable only to ``crime of
violence''):
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense).
The date that a defendant sustained a conviction shall be the date that
the guilt of the defendant has been established, whether by guilty
plea, trial, or plea of nolo contendere. For purposes of determining
whether the defendant sustained at least two felony convictions of
either a crime of violence or a controlled substance offense, use only:
(1) any such felony conviction of a `controlled substance offense' that
is counted separately under Sec. 4A1.1(a), (b), or (c); or (2) any
such felony conviction of a `crime of violence' that (A) is counted
separately under Sec. 4A1.1(a) [or (b)], and (B) resulted in a
sentence for which the defendant served [five years][three years][one
year] or more in prison.]]
(d) Prior Felony Conviction.--`Prior felony conviction' means a
prior adult conviction for an offense punishable by death or
imprisonment for a term exceeding one year, regardless of whether such
offense is specifically designated as a felony and regardless of the
actual sentence imposed. A conviction for an offense committed at age
eighteen or older is an adult conviction. 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).
Commentary
Application Note:
1. Conduct Constituting Robbery and Extortion Offenses.--The
Commission anticipates that subsection (b)(1)(A) will be sufficient to
include as crimes of violence conduct that would constitute most
robbery and extortion offenses that involve violence. Subsections
(b)(1)(C) and (b)(1)(D) are included to provide clarity and ease of
application.
Background: Section 4B1.2 defines the terms `crime of violence,'
`controlled substance offense,' and `two prior felony convictions.'
Prior to [amendment year], to determine if an offense met the
definition of `crime of violence' or `controlled substance offense' in
Sec. 4B1.2, courts used the categorical approach and the modified
categorical approach, as set forth in Supreme Court jurisprudence. See,
e.g., Taylor v. United States, 495 U.S. 575 (1990); Shepard v. United
States, 544 U.S. 13 (2005); Descamps v. United States, 570 U.S. 254
(2013); Mathis v. United States, 579 U.S. 500 (2016). These Supreme
Court cases, however, involved statutory provisions (e.g., 18 U.S.C.
924(e)) rather than guideline provisions.
In [amendment year], the Commission amended Sec. 4B1.2 to
eliminate the use of the categorical approach and modified categorical
approach established by Supreme Court jurisprudence for purposes of
determining whether an offense is a `crime of violence' or a
`controlled substance offense' in Sec. 4B1.2. See USSG App. C,
Amendment [__] (effective [Date]). Section 4B1.2 provides a list of the
federal drug statutes that qualify as a `controlled substance offense.'
The approach set out in the guideline for determining whether an
offense of conviction is a `crime of violence' allows a court to
consider the conduct of the defendant underlying the offense of
conviction. The approach set forth by this guideline requires the court
to consider the defendant's own conduct and conduct that the defendant
aided or abetted, counseled, commanded, induced, procured, or willfully
caused. The government must make a prima facie showing that an offense
of conviction is a `crime of violence' only by using the limited list
of sources of information, commonly referred to as the `Shepard
documents,' that Supreme Court jurisprudence has determined is
permissible to determine whether a conviction fits within the
definition of a particular category of crimes.''.
The Commentary to Sec. 2K1.3 captioned ``Application Notes'' is
amended in Note 2 by striking the following:
``For purposes of this guideline:
`Controlled substance offense' has the meaning given that term in
Sec. 4B1.2(b) and Application Note 1 of the Commentary to Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1).
`Crime of violence' has the meaning given that term in Sec.
4B1.2(a) and Application Note 1 of the Commentary to Sec. 4B1.2.
`Felony conviction' means a prior adult federal or state conviction
for an offense punishable by death or imprisonment for a term exceeding
one year, regardless of whether such offense is specifically designated
as a felony and regardless of the actual sentence imposed. A conviction
for an offense committed at age eighteen years or older is an adult
conviction. 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).'';
and inserting the following:
``Definitions for Purposes of Subsections (a)(1) and (a)(2).--
(A) Crime of Violence.--
(i) Definition.--`Crime of violence'' means any offense under
federal or state law, punishable by imprisonment for a term exceeding
one year, that (I) has as an element the use, attempted use, or
threatened use of physical force against the person of another; or (II)
is murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use or unlawful
possession of a firearm
[[Page 134]]
described in 26 U.S.C. 5845(a) or explosive material as defined in 18
U.S.C. 841(c).
(ii) Additional Considerations.--
(I) The term `crime of violence' includes the offenses of aiding
and abetting, attempting to commit, or conspiring to commit any such
offense.
(II) `Forcible sex offense' includes where consent to the conduct
is not given or is not legally valid, such as where consent to the
conduct is involuntary, incompetent, or coerced. The offenses of sexual
abuse of a minor and statutory rape are included only if the sexual
abuse of a minor or statutory rape was (aa) an offense described in 18
U.S.C. 2241(c) or (bb) an offense under state law that would have been
an offense under section 2241(c) if the offense had occurred within the
special maritime and territorial jurisdiction of the United States.
(III) `Extortion' is obtaining something of value from another by
the wrongful use of (aa) force, (bb) fear of physical injury, or (cc)
threat of physical injury.
(IV) `Robbery' is the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property, or property in
his custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at the time of the
taking or obtaining. The phrase `actual or threatened force' refers to
force that is sufficient to overcome a victim's resistance.
(V) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a `crime of
violence' if the offense of conviction established that the underlying
offense was a `crime of violence'. (Note that in the case of a prior 18
U.S.C. 924(c) or Sec. 929(a) conviction, if the defendant also was
convicted of the underlying offense, the sentences for the two prior
convictions will be treated as a single sentence under Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History).)
(VI) In determining whether an offense is a crime of violence, the
offense of conviction (i.e., the conduct of which the defendant was
convicted) is the focus of inquiry.
(B) Controlled Substance Offense.--
(i) Definition.--`Controlled substance offense' means an offense
under federal or state law, punishable by imprisonment for a term
exceeding one year, that (I) prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense; or (II) is an offense described in 46 U.S.C.
70503(a) or Sec. 70506(b).
(ii) Additional Considerations.--
(I) The term `controlled substance offense' include the offenses of
aiding and abetting, attempting to commit, or conspiring to commit any
such offense.
(II) Unlawfully possessing a listed chemical with intent to
manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a
`controlled substance offense.'
(III) Unlawfully possessing a prohibited flask or equipment with
intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a
`controlled substance offense.'
(IV) Maintaining any place for the purpose of facilitating a drug
offense (21 U.S.C. 856) is a `controlled substance offense' if the
offense of conviction established that the underlying offense (the
offense facilitated) was a `controlled substance offense.'
(V) Using a communications facility in committing, causing, or
facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled
substance offense' if the offense of conviction established that the
underlying offense (the offense committed, caused, or facilitated) was
a `controlled substance offense.'
(VI) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a
`controlled substance offense' if the offense of conviction established
that the underlying offense was a `controlled substance offense.' (Note
that in the case of a prior 18 U.S.C. 924(c) or Sec. 929(a)
conviction, if the defendant also was convicted of the underlying
offense, the sentences for the two prior convictions will be treated as
a single sentence under Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History).)
(VII) In determining whether an offense is a controlled substance
offense, the offense of conviction (i.e., the conduct of which the
defendant was convicted) is the focus of inquiry.
(C) Felony Conviction.--`Felony conviction' means a prior adult
federal or state conviction for an offense punishable by death or
imprisonment for a term exceeding one year, regardless of whether such
offense is specifically designated as a felony and regardless of the
actual sentence imposed. A conviction for an offense committed at age
eighteen years or older is an adult conviction. 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 by striking the following:
'' `Controlled substance offense' has the meaning given that term
in Sec. 4B1.2(b) and Application Note 1 of the Commentary to Sec.
4B1.2 (Definitions of Terms Used in Section 4B1.1).
`Crime of violence' has the meaning given that term in Sec.
4B1.2(a) and Application Note 1 of the Commentary to Sec. 4B1.2.'';
by redesignating Notes 3 through 14 as Notes 4 through 15,
respectively;
by inserting after Note 2 the following new Note 3:
``3. `Crime of Violence' and `Controlled Substance Offense'.--
(A) Crime of Violence.--
(i) Definition.--`Crime of violence' means any offense under
federal or state law, punishable by imprisonment for a term exceeding
one year, that (I) has as an element the use, attempted use, or
threatened use of physical force against the person of another; or (II)
is murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use or unlawful
possession of a firearm described in 26 U.S.C. 5845(a) or explosive
material as defined in 18 U.S.C. 841(c).
(ii) Additional Considerations.--
(I) The term `crime of violence' includes the offenses of aiding
and abetting, attempting to commit, or conspiring to commit any such
offense.
(II) `Forcible sex offense' includes where consent to the conduct
is not given or is not legally valid, such as where consent to the
conduct is involuntary, incompetent, or coerced. The offenses of sexual
abuse of a minor and statutory rape are included only if the sexual
abuse of a minor or statutory rape was (aa) an offense described in 18
U.S.C. 2241(c) or (bb) an offense under state law that would have been
an offense under section 2241(c) if the offense had occurred within the
special maritime and territorial jurisdiction of the United States.
(III) `Extortion' is obtaining something of value from another by
the wrongful use of (aa) force, (bb) fear of physical injury, or (cc)
threat of physical injury.
(IV) `Robbery' is the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property, or property in
his
[[Page 135]]
custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at the time of the
taking or obtaining. The phrase `actual or threatened force' refers to
force that is sufficient to overcome a victim's resistance.
(V) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a `crime of
violence' if the offense of conviction established that the underlying
offense was a `crime of violence.' (Note that in the case of a prior 18
U.S.C. 924(c) or Sec. 929(a) conviction, if the defendant also was
convicted of the underlying offense, the sentences for the two prior
convictions will be treated as a single sentence under Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History).)
(VI) In determining whether an offense is a crime of violence, the
offense of conviction (i.e., the conduct of which the defendant was
convicted) is the focus of inquiry.
(B) Controlled Substance Offense.--
(i) Definition.--`Controlled substance offense' means an offense
under federal or state law, punishable by imprisonment for a term
exceeding one year, that (I) prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense; or (II) is an offense described in 46 U.S.C.
70503(a) or Sec. 70506(b).
(ii) Additional Considerations.--
(I) The term `controlled substance offense' include the offenses of
aiding and abetting, attempting to commit, or conspiring to commit any
such offense.
(II) Unlawfully possessing a listed chemical with intent to
manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a
`controlled substance offense.'
(III) Unlawfully possessing a prohibited flask or equipment with
intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a
`controlled substance offense.'
(IV) Maintaining any place for the purpose of facilitating a drug
offense (21 U.S.C. 856) is a `controlled substance offense' if the
offense of conviction established that the underlying offense (the
offense facilitated) was a `controlled substance offense.'
(V) Using a communications facility in committing, causing, or
facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled
substance offense' if the offense of conviction established that the
underlying offense (the offense committed, caused, or facilitated) was
a `controlled substance offense.'
(VI) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a
`controlled substance offense' if the offense of conviction established
that the underlying offense was a `controlled substance offense.' (Note
that in the case of a prior 18 U.S.C. 924(c) or Sec. 929(a)
conviction, if the defendant also was convicted of the underlying
offense, the sentences for the two prior convictions will be treated as
a single sentence under Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History).)
(VII) In determining whether an offense is a controlled substance
offense, the offense of conviction (i.e., the conduct of which the
defendant was convicted) is the focus of inquiry.'';
in Note 12 (as so redesignated) by striking ``see Application Note
7'' and inserting ``see Application Note 8'';
and in Note 14 (as so redesignated) by striking the following:
'' `Crime of violence' and `controlled substance offense' have the
meaning given those terms in Sec. 4B1.2 (Definitions of Terms Used in
Section 4B1.1).''.
The Commentary to Sec. 2S1.1 captioned ``Application Notes'' is
amended--
in Note 1 by striking the following:
'' `Crime of violence' has the meaning given that term in
subsection (a)(1) of Sec. 4B1.2 (Definitions of Terms Used in Section
4B1.1).'';
by redesignating Notes 4, 5, and 6 as Notes 5, 6, and 7;
and by inserting after Note 3 the following new Note 4:
``4. `Crime of Violence' under Subsection (b)(1).--
(A) Definition.--For purposes of subsection (b)(1), `crime of
violence' means any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that has as an element the
use, attempted use, or threatened use of physical force against the
person of another.
(B) Additional Considerations.--
(i) The term `crime of violence' includes the offenses of aiding
and abetting, attempting to commit, or conspiring to commit any such
offense.
(ii) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a `crime of
violence' if the offense of conviction established that the underlying
offense was a `crime of violence.' (Note that in the case of a prior 18
U.S.C. 924(c) or Sec. 929(a) conviction, if the defendant also was
convicted of the underlying offense, the sentences for the two prior
convictions will be treated as a single sentence under Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History).)
(iii) In determining whether an offense is a crime of violence, the
offense of conviction (i.e., the conduct of which the defendant was
convicted) is the focus of inquiry.''.
The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is
amended in Note 4 by striking '' `crime of violence' has the meaning
given that term in Sec. 4B1.2(a). See Sec. 4A1.2(p)'' and inserting
'' `crime of violence' has the meaning given that term in Sec.
4A1.2(p)''.
Section 4A1.2(p) is amended by striking the following:
``For the purposes of Sec. 4A1.1(d), the definition of `crime of
violence' is that set forth in Sec. 4B1.2(a).'';
and inserting the following:
``(1) Definition.--For purposes Sec. 4A1.1(d), `crime of violence'
means any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that (A) has as an element
the use, attempted use, or threatened use of physical force against the
person of another; or (B) is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible sex offense, robbery, arson,
extortion, or the use or unlawful possession of a firearm described in
26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c).
(2) Additional Considerations.--
(A) The term `crime of violence' includes the offenses of aiding
and abetting, attempting to commit, or conspiring to commit any such
offense.
(B) `Forcible sex offense' includes where consent to the conduct is
not given or is not legally valid, such as where consent to the conduct
is involuntary, incompetent, or coerced. The offenses of sexual abuse
of a minor and statutory rape are included only if the sexual abuse of
a minor or statutory rape was (i) an offense described in 18 U.S.C.
2241(c) or (ii) an offense under state law that would have been an
offense under section 2241(c) if the offense had occurred within the
special maritime and territorial jurisdiction of the United States.
(C) `Extortion' is obtaining something of value from another by the
wrongful use of (i) force, (ii) fear of physical injury, or (iii)
threat of physical injury.
(D) `Robbery' is the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property, or property in
his custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at the time of the
taking or obtaining. The phrase `actual or threatened force' refers to
force that is sufficient to overcome a victim's resistance.
[[Page 136]]
(E) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a `crime of
violence' if the offense of conviction established that the underlying
offense was a `crime of violence.' (Note that in the case of a prior 18
U.S.C. 924(c) or Sec. 929(a) conviction, if the defendant also was
convicted of the underlying offense, the sentences for the two prior
convictions will be treated as a single sentence under Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History).)
(F) In determining whether an offense is a crime of violence, the
offense of conviction (i.e., the conduct of which the defendant was
convicted) is the focus of inquiry.''.
Section 4B1.4(b)(3) is amended by striking ``either a crime of
violence, as defined in Sec. 4B1.2(a), or a controlled substance
offense, as defined in Sec. 4B1.2(b)'' and inserting ``either a crime
of violence or a controlled substance offense''.
Section 4B1.4(c)(2) is amended by striking ``either a crime of
violence, as defined in Sec. 4B1.2(a), or a controlled substance
offense, as defined in Sec. 4B1.2(b)'' and inserting ``either a crime
of violence or a controlled substance offense''.
The Commentary to Sec. 4B1.4 captioned ``Application Notes'' is
amended by inserting at the end the following new Note 3:
``3. `Crime of Violence' and `Controlled Substance Offense'.--
(A) Crime of Violence.--
(i) Definition.--`Crime of violence' means any offense under
federal or state law, punishable by imprisonment for a term exceeding
one year, that (I) has as an element the use, attempted use, or
threatened use of physical force against the person of another; or (II)
is murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use or unlawful
possession of a firearm described in 26 U.S.C. 5845(a) or explosive
material as defined in 18 U.S.C. 841(c).
(ii) Additional Considerations.--
(I) The term `crime of violence' includes the offenses of aiding
and abetting, attempting to commit, or conspiring to commit any such
offense.
(II) `Forcible sex offense' includes where consent to the conduct
is not given or is not legally valid, such as where consent to the
conduct is involuntary, incompetent, or coerced. The offenses of sexual
abuse of a minor and statutory rape are included only if the sexual
abuse of a minor or statutory rape was (aa) an offense described in 18
U.S.C. 2241(c) or (bb) an offense under state law that would have been
an offense under section 2241(c) if the offense had occurred within the
special maritime and territorial jurisdiction of the United States.
(III) `Extortion' is obtaining something of value from another by
the wrongful use of (aa) force, (bb) fear of physical injury, or (cc)
threat of physical injury.
(IV) `Robbery' is the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property, or property in
his custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at the time of the
taking or obtaining. The phrase `actual or threatened force' refers to
force that is sufficient to overcome a victim's resistance.
(V) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a `crime of
violence' if the offense of conviction established that the underlying
offense was a `crime of violence.' (Note that in the case of a prior 18
U.S.C. 924(c) or Sec. 929(a) conviction, if the defendant also was
convicted of the underlying offense, the sentences for the two prior
convictions will be treated as a single sentence under Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History).)
(VI) In determining whether an offense is a crime of violence, the
offense of conviction (i.e., the conduct of which the defendant was
convicted) is the focus of inquiry.
(B) Controlled Substance Offense.--
(i) Definition.--`Controlled substance offense' means an offense
under federal or state law, punishable by imprisonment for a term
exceeding one year, that (I) prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense; or (II) is an offense described in 46 U.S.C.
70503(a) or Sec. 70506(b).
(ii) Additional Considerations.--
(I) The term `controlled substance offense' include the offenses of
aiding and abetting, attempting to commit, or conspiring to commit any
such offense.
(II) Unlawfully possessing a listed chemical with intent to
manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a
`controlled substance offense.'
(III) Unlawfully possessing a prohibited flask or equipment with
intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a
`controlled substance offense.'
(IV) Maintaining any place for the purpose of facilitating a drug
offense (21 U.S.C. 856) is a `controlled substance offense' if the
offense of conviction established that the underlying offense (the
offense facilitated) was a `controlled substance offense.'
(V) Using a communications facility in committing, causing, or
facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled
substance offense' if the offense of conviction established that the
underlying offense (the offense committed, caused, or facilitated) was
a `controlled substance offense.'
(VI) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a
`controlled substance offense' if the offense of conviction established
that the underlying offense was a `controlled substance offense.' (Note
that in the case of a prior 18 U.S.C. 924(c) or Sec. 929(a)
conviction, if the defendant also was convicted of the underlying
offense, the sentences for the two prior convictions will be treated as
a single sentence under Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History).)
(VII) In determining whether an offense is a controlled substance
offense, the offense of conviction (i.e., the conduct of which the
defendant was convicted) is the focus of inquiry.''.
The Commentary to Sec. 5K2.17 captioned ``Application Notes'' is
amended--
in the caption by striking ``Note'' and inserting ``Notes'';
by striking Note 1 as follows:
``1. `Crime of violence' and `controlled substance offense' are
defined in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1).'';
and by inserting the following new Notes 1 and 2:
``1. Crime of Violence.--
(A) Definition.--`Crime of violence' means any offense under
federal or state law, punishable by imprisonment for a term exceeding
one year, that (i) has as an element the use, attempted use, or
threatened use of physical force against the person of another; or (ii)
is murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use or unlawful
possession of a firearm described in 26 U.S.C. 5845(a) or explosive
material as defined in 18 U.S.C. 841(c).
(B) Additional Considerations.--
(i) The term `crime of violence' includes the offenses of aiding
and abetting, attempting to commit, or conspiring to commit any such
offense.
(ii) `Forcible sex offense' includes where consent to the conduct
is not
[[Page 137]]
given or is not legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced. The offenses of sexual abuse of a
minor and statutory rape are included only if the sexual abuse of a
minor or statutory rape was (I) an offense described in 18 U.S.C.
2241(c) or (II) an offense under state law that would have been an
offense under section 2241(c) if the offense had occurred within the
special maritime and territorial jurisdiction of the United States.
(iii) `Extortion' is obtaining something of value from another by
the wrongful use of (I) force, (II) fear of physical injury, or (III)
threat of physical injury.
(iv) `Robbery' is the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property, or property in
his custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at the time of the
taking or obtaining. The phrase `actual or threatened force' refers to
force that is sufficient to overcome a victim's resistance.
(v) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a `crime of
violence' if the offense of conviction established that the underlying
offense was a `crime of violence.' (Note that in the case of a prior 18
U.S.C. 924(c) or Sec. 929(a) conviction, if the defendant also was
convicted of the underlying offense, the sentences for the two prior
convictions will be treated as a single sentence under Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History).)
(vi) In determining whether an offense is a crime of violence, the
offense of conviction (i.e., the conduct of which the defendant was
convicted) is the focus of inquiry.
2. Controlled Substance Offense.--
(A) Definition.--`Controlled substance offense' means an offense
under federal or state law, punishable by imprisonment for a term
exceeding one year, that (i) prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense; or (ii) is an offense described in 46 U.S.C.
70503(a) or Sec. 70506(b).
(B) Additional Considerations.--
(i) The term `controlled substance offense' include the offenses of
aiding and abetting, attempting to commit, or conspiring to commit any
such offense.
(ii) Unlawfully possessing a listed chemical with intent to
manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a
`controlled substance offense.'
(iii) Unlawfully possessing a prohibited flask or equipment with
intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a
`controlled substance offense.'
(iv) Maintaining any place for the purpose of facilitating a drug
offense (21 U.S.C. 856) is a `controlled substance offense' if the
offense of conviction established that the underlying offense (the
offense facilitated) was a `controlled substance offense.'
(v) Using a communications facility in committing, causing, or
facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled
substance offense' if the offense of conviction established that the
underlying offense (the offense committed, caused, or facilitated) was
a `controlled substance offense.'
(vi) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a
`controlled substance offense' if the offense of conviction established
that the underlying offense was a `controlled substance offense.' (Note
that in the case of a prior 18 U.S.C. 924(c) or Sec. 929(a)
conviction, if the defendant also was convicted of the underlying
offense, the sentences for the two prior convictions will be treated as
a single sentence under Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History).)
(vii) In determining whether an offense is a controlled substance
offense, the offense of conviction (i.e., the conduct of which the
defendant was convicted) is the focus of inquiry.''.
The Commentary to Sec. 7B1.1 captioned ``Application Notes'' is
amended--
in Note 2 by striking the following:
`` `Crime of violence' is defined in Sec. 4B1.2 (Definitions of
Terms Used in Section 4B1.1). See Sec. 4B1.2(a) and Application Note 1
of the Commentary to Sec. 4B1.2.'';
and inserting the following:
``Crime of Violence.--
(A) Definition.--`Crime of violence' means any offense under
federal or state law, punishable by imprisonment for a term exceeding
one year, that (i) has as an element the use, attempted use, or
threatened use of physical force against the person of another; or (ii)
is murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use or unlawful
possession of a firearm described in 26 U.S.C. 5845(a) or explosive
material as defined in 18 U.S.C. 841(c).
(B) Additional Considerations.--
(i) The term `crime of violence' includes the offenses of aiding
and abetting, attempting to commit, or conspiring to commit any such
offense.
(ii) `Forcible sex offense' includes where consent to the conduct
is not given or is not legally valid, such as where consent to the
conduct is involuntary, incompetent, or coerced. The offenses of sexual
abuse of a minor and statutory rape are included only if the sexual
abuse of a minor or statutory rape was (I) an offense described in 18
U.S.C. 2241(c) or (II) an offense under state law that would have been
an offense under section 2241(c) if the offense had occurred within the
special maritime and territorial jurisdiction of the United States.
(iii) `Extortion' is obtaining something of value from another by
the wrongful use of (I) force, (II) fear of physical injury, or (III)
threat of physical injury.
(iv) `Robbery' is the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property, or property in
his custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at the time of the
taking or obtaining. The phrase `actual or threatened force' refers to
force that is sufficient to overcome a victim's resistance.
(v) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a `crime of
violence' if the offense of conviction established that the underlying
offense was a `crime of violence.' (Note that in the case of a prior 18
U.S.C. 924(c) or Sec. 929(a) conviction, if the defendant also was
convicted of the underlying offense, the sentences for the two prior
convictions will be treated as a single sentence under Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History).)
(vi) In determining whether an offense is a crime of violence, the
offense of conviction (i.e., the conduct of which the defendant was
convicted) is the focus of inquiry.'';
and in Note 3 by striking the following:
`` `Controlled substance offense' is defined in Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1). See Sec. 4B1.2(b) and
Application Note 1 of the Commentary to Sec. 4B1.2.'';
and inserting the following:
``Controlled Substance Offense.--
(A) Definition.--`Controlled substance offense' means an offense
under federal or state law, punishable by imprisonment for a term
exceeding one year, that (i) prohibits the manufacture,
[[Page 138]]
import, export, distribution, or dispensing of a controlled substance
(or a counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense; or (ii) is an offense
described in 46 U.S.C. 70503(a) or Sec. 70506(b).
(B) Additional Considerations.--
(i) The term `controlled substance offense' include the offenses of
aiding and abetting, attempting to commit, or conspiring to commit any
such offense.
(ii) Unlawfully possessing a listed chemical with intent to
manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a
`controlled substance offense.'
(iii) Unlawfully possessing a prohibited flask or equipment with
intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a
`controlled substance offense.'
(iv) Maintaining any place for the purpose of facilitating a drug
offense (21 U.S.C. 856) is a `controlled substance offense' if the
offense of conviction established that the underlying offense (the
offense facilitated) was a `controlled substance offense.'
(v) Using a communications facility in committing, causing, or
facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled
substance offense' if the offense of conviction established that the
underlying offense (the offense committed, caused, or facilitated) was
a `controlled substance offense.'
(vi) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a
`controlled substance offense' if the offense of conviction established
that the underlying offense was a `controlled substance offense.' (Note
that in the case of a prior 18 U.S.C. 924(c) or Sec. 929(a)
conviction, if the defendant also was convicted of the underlying
offense, the sentences for the two prior convictions will be treated as
a single sentence under Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History).)
(vii) In determining whether an offense is a controlled substance
offense, the offense of conviction (i.e., the conduct of which the
defendant was convicted) is the focus of inquiry.''.
Issues for Comment
1. As explained above, courts use the ``categorical approach'' and
the ``modified categorical approach,'' as set forth in Supreme Court
jurisprudence, to determine whether a conviction is a ``crime of
violence'' or a ``controlled substance offense'' for purposes of Sec.
4B1.2 (Definitions of Terms Used in Section 4B1.1). These Supreme Court
cases, however, involved statutory provisions (e.g., 18 U.S.C. 924(e))
rather than guideline provisions.
The Commission seeks comment on whether determinations under the
career offender guideline should use a different approach, such as the
approach provided above, that permits the court to consider the
defendant's conduct underlying the offense of conviction for purposes
of the ``crime of violence'' definition. What are the advantages and
disadvantages of the ``categorical approach'' as opposed to the
approach set forth in the proposed amendment above?
2. The proposed amendment provides that courts may consider the
full scope of the defendant's conduct under subsection (a)(1)(A) of
Sec. 1B1.3 (Relevant Conduct) (i.e., ``all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant . . . 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'') for purposes of the ``crime of
violence'' definition. Should the focus of the inquiry be limited to
the conduct that formed the basis of the conviction? If not, should the
Commission limit the consideration of the defendant's conduct in some
other way? If so, how should the Commission set forth such limitation?
Should the Commission limit the consideration of the defendant's
conduct only to such acts and omissions that occurred ``during the
commission of the offense of conviction'' and exclude conduct ``in
preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense'' or make any other
changes?
3. The proposed amendment would revise the definition of
``controlled substance offense'' in Sec. 4B1.2 to exclude state drug
offenses by listing specific federal statutes relating to drug
offenses. The proposed amendment lists the federal statutes that are
controlled substance offenses under the current definition to maintain
the status quo. The federal drug trafficking statutes that do not
appear in brackets are specifically referenced in the career offender
directive at 28 U.S.C. 994(h). Are there federal drug offenses that are
covered by the proposed amendment but should not be? Are there federal
drug offenses that are not covered by the proposed amendment but should
be?
The Commission also seeks comment on whether, instead of excluding
state drug offenses, it should limit the definition of ``controlled
substance offense'' in some other way. For example, should the
Commission keep the current definition of ``controlled substance
offense'' and limit qualifying prior convictions to only convictions
that received a certain number of criminal history points or a certain
length of sentence imposed or served? If so, how should the Commission
set that limit and why?
4. The definition of ``crime of violence'' set forth in the
proposed amendment above includes a ``force clause'' proposed at Sec.
4B1.2(b)(1)(A). The provision closely tracks the language of current
Sec. 4B1.2(a)(1) but would incorporate a parenthetical insert defining
the term ``physical force'' as ``force capable of causing physical pain
or injury to another person.'' The Commission seeks comment on whether
this definition is appropriate.
The definition of ``crime of violence'' also includes provisions
relating to conduct that would constitute certain specific offenses
that currently qualify as a ``crime of violence,'' such forcible sex
offenses, robbery, arson, and extortion. The Commission seeks comment
on whether the force clause set forth in proposed Sec. 4B1.2(b)(1)(A)
would be sufficient to cover the other types of conduct specifically
listed in the ``crime of violence'' definition. Specifically, the
Commission seeks comment on whether the force clause would cover
conduct constituting robbery and extortion offenses.
5. The definition of ``crime of violence'' includes a provision
relating to forcible sexual acts at proposed Sec. 4B1.2(b)(1)(B). The
Commission seeks comment generally on whether the scope of this
provision for purposes of the ``crime of violence'' definition is
appropriate.
6. The ``crime of violence'' definition includes a provision that
would cover conduct constituting an arson offense at proposed Sec.
4B1.2(b)(1)(E). The Commission seeks comment generally on whether the
proposed provision is appropriate.
7. The Commission seeks comment on whether the definition of
``crime of violence'' should still address the offenses of attempting
to commit a substantive offense and conspiracy to commit a substantive
offense. Should the Commission provide additional requirements or
guidance to address these types of offenses?
8. The proposed amendment would require the government to make a
prima facie showing that an offense is a ``crime of violence'' only by
using a specific list of sources of information from the record. The
sources of information that do not appear within brackets in the
proposed amendment are specifically
[[Page 139]]
identified in Shepard v. United States, 544 U.S. 13 (2005), for use in
the modified categorical approach. The sources of information listed
within brackets are comparable judicial documents identified in
subsequent case law for the same purpose.
The Commission seeks comment on whether it should limit the sources
of information that the government needs to make a prima facie showing
that an offense of conviction is a ``crime of violence.'' Should the
Commission list specific sources or types of sources that courts may
consider in addition to the sources listed in the proposed amendment?
If so, what documents or types of information should be included in
this list? Are there any documents or types of information that should
be excluded?
9. The proposed amendment sets forth three options for setting a
minimum sentence length requirement for a prior conviction to qualify
as a ``crime of violence'' or ``controlled substance offense.'' The
Commission seeks comment on whether including a minimum sentence length
requirement for prior offenses to qualify as a ``crime of violence'' or
``controlled substance offense'' is consistent with the Commission's
authority under 28 U.S.C. 994(h). The Commission also seeks comment on
each of these options and suboptions. Should the Commission
differentiate between ``crimes of violence'' and ``controlled substance
offenses'' in setting a minimum sentence length requirement?
10. As indicated above, several guidelines use the terms ``crime of
violence'' and ``controlled substance offense'' and define these terms
by making specific reference to Sec. 4B1.2. See Commentary to Sec.
2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive
Materials; Prohibited Transactions Involving Explosive Materials),
Sec. 2K2.1 (Unlawful Receipt, Possession, or Transportation of
Firearms or Ammunition; Prohibited Transactions Involving Firearms or
Ammunition), Sec. 2S1.1 (Laundering of Monetary Instruments; Engaging
in Monetary Transactions in Property Derived from Unlawful Activity),
Sec. 4A1.2 (Definitions and Instructions for Computing Criminal
History), Sec. 4B1.4 (Armed Career Criminal), Sec. 5K2.17
(Semiautomatic Firearms Capable of Accepting Large Capacity Magazine
(Policy Statement)), and Sec. 7B1.1 (Classification of Violations
(Policy Statement)).
The proposed amendment would maintain the status quo by amending
the Commentary to these guidelines to incorporate the relevant part or
parts of Sec. 4B1.2. The Commission seeks comment on whether this is
the appropriate approach or, in the alternative, whether any or all of
these guidelines should continue to define the terms ``crime of
violence'' and ``controlled substance offense'' by making specific
references to Sec. 4B1.2 if the Commission were to promulgate the
proposed amendment making changes to the definitions contained in Sec.
4B1.2. Should the Commission consider moving these definitions from the
commentary of these guidelines to the guidelines themselves?
2. Firearms Offenses
Synopsis of Proposed Amendment: The proposed amendment contains two
parts (Part A and Part B) addressing offenses involving firearms. The
Commission is considering whether to promulgate either or both parts,
as they are not mutually exclusive.
Part A of the proposed amendment addresses the application of Sec.
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition)
to machinegun conversion devices (MCDs), which are designed to convert
weapons to fully automatic firearms. Issues for comment are also
provided.
Part B of the proposed amendment establishes a mens rea requirement
for the enhancements under Sec. 2K2.1(b)(4) for stolen firearms and
firearms with modified serial numbers. An issue for comment is also
provided.
(A) Machinegun Conversion Devices (MCDs)
Synopsis of Proposed Amendment: Section 2K2.1 (Unlawful Receipt,
Possession, or Transportation of Firearms or Ammunition; Prohibited
Transactions Involving Firearms or Ammunition) employs, for different
purposes, two distinct definitions of the term ``firearm'' drawn from
separate statutory sources: 21 U.S.C. 921(a)(3) (``Gun Control Act
(GCA) definition of firearm'') and 26 U.S.C. 5845(a) (``National
Firearms Act (NFA) definition of firearm''). One difference between the
definitions is the inclusion of machinegun conversion devices (MCDs).
Commonly referred to as ``Glock switches'' or ``auto sears,'' MCDs are
devices designed to convert weapons into fully automatic firearms. The
NFA definition of firearm includes ``machineguns,'' 26 U.S.C. 5845(a),
and the definition of ``machinegun'' includes ``any part designed and
intended solely and exclusively, or combination of parts designed and
intended, for use in converting a weapon into a machinegun,'' 26 U.S.C.
5845(b). Therefore, MCDs fall within the NFA definition of firearm.
However, the GCA definition of firearm does not encompass MCDs. See 21
U.S.C. 921(a)(3).
Section 2K2.1 uses the NFA definition of firearm for certain
enhanced base offense levels. See, e.g., USSG Sec. 2K2.1(a)(1), (3),
(4), and (5). Therefore, those enhanced base offense levels apply to
offenses involving MCDs. However, the remainder of Sec. 2K2.1,
including the specific offense characteristics and the cross reference,
uses the GCA definition of firearm. USSG Sec. 2K2.1, comment. (n.1).
Therefore, MCDs do not trigger Sec. 2K2.1's specific offense
characteristics or the cross reference. For example, an individual
convicted under 18 U.S.C. 922(o) for possessing five MCDs would receive
an enhanced base offense level because the offense involved a firearm
described in 26 U.S.C. 5845(a). See USSG Sec. 2K2.1(a)(5). However,
this individual would not receive an enhancement under Sec.
2K2.1(b)(1) for the number of firearms involved in the offense because
the MCDs are not firearms under the GCA definition. See USSG Sec.
2K2.1(b)(1).
Commenters have expressed concern that Sec. 2K2.1 insufficiently
addresses offenses involving MCDs. Commenters have described a
significant recent proliferation of MCDs and pointed out the increased
danger to bystanders and law enforcement officials when a weapon is
equipped with an MCD because those weapons can fire more quickly and
are more difficult to control.
Part A of the proposed amendment would amend Sec. 2K2.1 to address
these concerns.
The proposed amendment provides two options to amend Sec. 2K2.1.
Option 1 would amend the definition of ``firearm'' applicable to
Sec. 2K2.1 to include any firearm described in 18 U.S.C. 921(a)(3)
(i.e., the GCA definition of firearm) or 26 U.S.C. 5845(a) (i.e., the
NFA definition of firearm). It would move the definition from the
Commentary to the guideline itself in newly created subsection (d).
Option 2 would expand the application of the following subsections,
which now apply only to GCA firearms, so that those subsections would
also apply to NFA firearms:
<bullet> Subsection (b)(1), which provides an enhancement based on
the number of firearms involved in the offense;
<bullet> Subsection (b)(4), which provides an enhancement for
offenses involving firearms that were stolen, had a
[[Page 140]]
modified serial number, or were not marked with a serial number;
<bullet> Subsection (b)(5), which provides an enhancement for
certain offenses involving the transport, transfer, sale, or other
disposition of a firearm to another person;
<bullet> Subsection (b)(6), which provides an enhancement for
offenses involving transportation of a firearm outside the United
States or the possession of a firearm in connection with another
felony;
<bullet> Subsection (b)(7), which provides an enhancement for
recordkeeping offenses that reflect an effort to conceal a substantive
offense involving firearms or ammunition; and
<bullet> Subsection (c), which cross references other guidelines
for cases in which the defendant used or possessed any firearm cited in
the offense of conviction in connection with the commission or
attempted commission of another offense, or possessed or transferred a
firearm cited in the offense of conviction with knowledge or intent
that it would be used or possessed in connection with another offense.
Option 2, if applied to all of the listed subsections, would
produce an equivalent result to Option 1, but Option 2 highlights the
policy question as to whether expansion of the definition of
``firearm'' should apply to all relevant provisions.
Issues for comment are also provided.
Proposed Amendment
Option 1 (``Firearm'' definition includes GCA firearms and NFA
firearms):
Section 2K1.1 is amended by inserting at the end the following new
subsection (d):
``(d) Definition
(1) For purposes of this guideline, `firearm' includes any firearm
described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a).''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended in Note 1 by striking the following:
`` `Firearm' has the meaning given that term in 18 U.S.C.
921(a)(3).''.
Option 2 (``Firearm'' definition depends on statutory references in
specific subsections):
Section 2K2.1 is amended--
in subsection (b)(1) by inserting after ``three or more firearms''
the following: ``(as described in 18 U.S.C. 921(a)(3) or 26 U.S.C.
5845(a))'';
in subsection (b)(3)(B), by striking ``subdivision'' and inserting
``paragraph'';
by striking subsection (b)(4) as follows:
``(4) If (A) any firearm was stolen, increase by 2 levels; or
(B)(i) any firearm had a serial number that was modified such that the
original information is rendered illegible or unrecognizable to the
unaided eye; 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, increase by 4 levels.'',
and inserting the following new subsection (b)(4) as follows:
``(4) If any firearm (as described in 18 U.S.C. 921(a)(3) or 26
U.S.C. 5845(a)) (A) was stolen, increase by 2 levels; (B) had a serial
number that was modified such that the original information is rendered
illegible or unrecognizable to the unaided eye, increase by 4 levels;
or (C) 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) and the defendant knew, was willfully blind to, or consciously
avoided knowledge of such fact, increase by 4 levels.'';
by striking subsections (b)(5), (b)(6), and (b)(7) as follows:
``(5) (Apply the Greatest) If the defendant--
(A) was convicted under 18 U.S.C. 933(a)(2) or (a)(3), increase by
2 levels;
(B) (i) transported, transferred, sold, or otherwise disposed of,
or purchased or received with intent to transport, transfer, sell, or
otherwise dispose of, a firearm or any ammunition knowing or having
reason to believe that such conduct would result in the receipt of the
firearm or ammunition by an individual who (I) was a prohibited person;
or (II) intended to use or dispose of the firearm or ammunition
unlawfully; (ii) attempted or conspired to commit the conduct described
in clause (i); or (iii) received a firearm or any ammunition as a
result of inducing the conduct described in clause (i), increase by 2
levels; or
(C) (i) transported, transferred, sold, or otherwise disposed of,
or purchased or received with intent to transport, transfer, sell, or
otherwise dispose of, two or more firearms knowing or having reason to
believe that such conduct would result in the receipt of the firearms
by an individual who (I) had a prior conviction for a crime of
violence, controlled substance offense, or misdemeanor crime of
domestic violence; (II) was under a criminal justice sentence at the
time of the offense; or (III) intended to use or dispose of the
firearms unlawfully; (ii) attempted or conspired to commit the conduct
described in clause (i); or (iii) received two or more firearms as a
result of inducing the conduct described in clause (i), increase by 5
levels.
Provided, however, that subsection (b)(5)(C)(i)(I) shall not apply
based upon the receipt or intended receipt of the firearms by an
individual with a prior conviction for a misdemeanor crime of domestic
violence against a person in a dating relationship if, at the time of
the instant offense, such individual met the criteria set forth in the
proviso of 18 U.S.C. 921(a)(33)(C).
(6) If the defendant--
(A) possessed any firearm or ammunition while leaving or attempting
to leave the United States, or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it would
be transported out of the United States; or
(B) used or possessed any firearm or ammunition in connection with
another felony offense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony offense,
increase by 4 levels. If the resulting offense level is less than
level 18, increase to level 18.
(7) If a recordkeeping offense reflected an effort to conceal a
substantive offense involving firearms or ammunition, increase to the
offense level for the substantive offense.'',
and inserting the following new subsections (b)(5), (b)(6), and
(b)(7):
``(5) (Apply the Greatest) If the defendant--
(A) was convicted under 18 U.S.C. 933(a)(2) or (a)(3), increase by
2 levels;
(B) (i) transported, transferred, sold, or otherwise disposed of,
or purchased or received with intent to transport, transfer, sell, or
otherwise dispose of, a firearm (as described in 18 U.S.C. 921(a)(3) or
26 U.S.C. 5845(a)) or any ammunition knowing or having reason to
believe that such conduct would result in the receipt of the firearm or
ammunition by an individual who (I) was a prohibited person; or (II)
intended to use or dispose of the firearm or ammunition unlawfully;
(ii) attempted or conspired to commit the conduct described in clause
(i); or (iii) received a firearm (as described in 18 U.S.C. 921(a)(3)
or 26 U.S.C. 5845(a)) or any ammunition as a result of inducing the
conduct described in clause (i), increase by 2 levels; or
(C) (i) transported, transferred, sold, or otherwise disposed of,
or purchased or received with intent to transport, transfer, sell, or
otherwise dispose of, two or more firearms (as described in 18 U.S.C.
921(a)(3) or 26 U.S.C. 5845(a)) knowing or having reason to believe
that
[[Page 141]]
such conduct would result in the receipt of the firearms by an
individual who (I) had a prior conviction for a crime of violence,
controlled substance offense, or misdemeanor crime of domestic
violence; (II) was under a criminal justice sentence at the time of the
offense; or (III) intended to use or dispose of the firearms
unlawfully; (ii) attempted or conspired to commit the conduct described
in clause (i); or (iii) received two or more firearms (as described in
18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) as a result of inducing the
conduct described in clause (i), increase by 5 levels.
Provided, however, that subsection (b)(5)(C)(i)(I) shall not apply
based upon the receipt or intended receipt of the firearms by an
individual with a prior conviction for a misdemeanor crime of domestic
violence against a person in a dating relationship if, at the time of
the instant offense, such individual met the criteria set forth in the
proviso of 18 U.S.C. 921(a)(33)(C).
(6) If the defendant--
(A) possessed any firearm (as described in 18 U.S.C. 921(a)(3) or
26 U.S.C. 5845(a)) or ammunition while leaving or attempting to leave
the United States, or possessed or transferred any firearm (as
described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) or ammunition
with knowledge, intent, or reason to believe that it would be
transported out of the United States; or
(B) used or possessed any firearm (as described in 18 U.S.C.
921(a)(3) or 26 U.S.C. 5845(a)) or ammunition in connection with
another felony offense; or possessed or transferred any firearm (as
described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) or ammunition
with knowledge, intent, or reason to believe that it would be used or
possessed in connection with another felony offense,
increase by 4 levels. If the resulting offense level is less than
level 18, increase to level 18.
(7) If a recordkeeping offense reflected an effort to conceal a
substantive offense involving firearms (as described in 18 U.S.C.
921(a)(3) or 26 U.S.C. 5845(a)) or ammunition, increase to the offense
level for the substantive offense.'';
and in subsection (c)(1) by inserting after ``any firearm'' the
following: ``(as described in 18 U.S.C. 921(a)(3) or 26 U.S.C.
5845(a))''; and inserting after ``transferred a firearm'' the
following: ``(as described in 18 U.S.C. 921(a)(3) or 26 U.S.C.
5845(a))''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended--
in Note 1, in the paragraph that begins '' `Firearm' has the
meaning'' by inserting after ``18 U.S.C. 921(a)(3)'' the following:
``unless otherwise specified'';
by striking Note 8 as follows:
``8. Application of Subsection (b)(4).--
(A) Interaction with Subsection (a)(7).--If the only offense to
which Sec. 2K2.1 applies is 18 U.S.C. 922(i), (j), or (u), or 18
U.S.C. 924(l) or (m) (offenses involving a stolen firearm or stolen
ammunition) and the base offense level is determined under subsection
(a)(7), do not apply the enhancement in subsection (b)(4)(A). This is
because the base offense level takes into account that the firearm or
ammunition was stolen. However, if the offense involved a firearm with
a serial number that was modified such that the original information is
rendered illegible or unrecognizable to the unaided eye, or if 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, apply subsection (b)(4)(B)(i) or (ii).
Similarly, if the offense to which Sec. 2K2.1 applies is 18 U.S.C.
922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an altered or
obliterated serial number) and the base offense level is determined
under subsection (a)(7), do not apply the enhancement in subsection
(b)(4)(B)(i). However, if the offense involved a stolen firearm or
stolen ammunition, or if 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, apply subsection (b)(4)(A) or (B)(ii).
(B) Defendant's State of Mind.--Subsection (b)(4)(A) or (B)(i)
applies regardless of whether the defendant knew or had reason to
believe that the firearm was stolen or had a serial number that was
modified such that the original information is rendered illegible or
unrecognizable to the unaided eye. However, subsection (b)(4)(B)(ii)
only applies if 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.'',
and inserting the following new Note 8:
``8. Application of Subsection (b)(4).--
(A) Interaction with Subsection (a)(7).--If the only offense to
which Sec. 2K2.1 applies is 18 U.S.C. 922(i), (j), or (u), or 18
U.S.C. 924(l) or (m) (offenses involving a stolen firearm or stolen
ammunition) and the base offense level is determined under subsection
(a)(7), do not apply the enhancement in subsection (b)(4)(A). This is
because the base offense level takes into account that the firearm or
ammunition was stolen. However, if the offense involved a firearm with
a serial number that was modified such that the original information is
rendered illegible or unrecognizable to the unaided eye, or if 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, apply subsection (b)(4)(B) or (C).
Similarly, if the offense to which Sec. 2K2.1 applies is 18 U.S.C.
922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an altered or
obliterated serial number) and the base offense level is determined
under subsection (a)(7), do not apply the enhancement in subsection
(b)(4)(B). However, if the offense involved a stolen firearm or stolen
ammunition, or if 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, apply subsection (b)(4)(A) or (C).
(B) Defendant's State of Mind.--Subsection (b)(4)(A) or (B) applies
regardless of whether the defendant knew or had reason to believe that
the firearm was stolen or had a serial number that was modified such
that the original information is rendered illegible or unrecognizable
to the unaided eye. However, subsection (b)(4)(C) only applies if 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.'';
and in Note 9 by striking ``record-keeping'' and inserting
``recordkeeping''.
Issues for Comment
1. Part A of the proposed amendment seeks to respond to concerns
that Sec. 2K2.1 (Unlawful Receipt, Possession, or Transportation of
Firearms or Ammunition; Prohibited Transactions Involving Firearms or
Ammunition) insufficiently addresses the dangers presented by
machinegun conversion devices (MCDs). The Commission seeks comment on
whether the proposed amendment appropriately addresses those concerns.
Should the Commission
[[Page 142]]
address those concerns in another way? If so, how?
2. Under Options 1 and 2 of Part A of the proposed amendment, an
MCD would be treated as a firearm for purposes of Sec. 2K2.1. The
Commission seeks comment on whether it is appropriate for MCDs to be
given the same weight as other firearms. Should MCDs be treated
differently from other firearms? If so, how?
3. Section 2K2.1(b)(1) and (b)(5)(C) provide enhancements based, in
whole or in part, on the number of ``firearms'' involved in the
offense. Under Options 1 and 2, an MCD would be considered a firearm.
MCDs are designed to be affixed to another firearm. The Commission
seeks comment on how MCDs should be factored when calculating the
number of firearms for purposes of Sec. 2K2.1(b)(1) and (b)(5)(C).
Should the calculation depend on whether the MCD was affixed to another
firearm? If an MCD is affixed to a semi-automatic firearm, should the
resulting weapon be counted as one firearm or two firearms?
4. Section 2K2.1(b)(1), (b)(4), (b)(5), (b)(6), (b)(7), and (c)
currently apply to firearms defined in 18 U.S.C. 921(a)(3) (the GCA
definition of firearm). Under Options 1 and 2, the term ``firearm,'' as
used in those provisions, would also include any firearm described in
26 U.S.C. 5845(a) (the NFA definition of firearm), such as an MCD. The
Commission seeks comment on whether this change should apply to all of
the listed provisions. Should one or more of these provisions be
excluded from the change? For example, should the Commission make an
exception to Sec. 2K2.1(b)(4)(C), as redesignated, which provides an
enhancement for certain cases involving firearms that were not marked
with a serial number, for MCDs, which are often privately made and not
marked with a serial number?
5. With few exceptions (e.g., MCDs), a weapon that meets the NFA
definition of firearm also meets the GCA definition of firearm. Apart
from MCDs, the Commission seeks comment on whether there are any
exceptions (i.e., weapons that meet the NFA definition of firearm but
not the GCA definition) that should not be treated as firearms for
purposes of Sec. 2K2.1. If so, what types of weapons should be
excluded? In Option 2 of Part A of the proposed amendment, should the
Commission expand the application of subsection (b)(1), (b)(4), (b)(5),
(b)(6), (b)(7), or (c) to include machineguns (as defined in 26 U.S.C.
5845(b)), rather than all NFA firearms?
6. In addition to amending the definition of ``firearm'' for
purposes of Sec. 2K2.1, Option 1 of Part A of the amendment would move
the definition from the Commentary to the guideline itself. However,
the option would not move any other Sec. 2K2.1 definitions from the
Commentary to the guideline. The Commission seeks comment on whether
leaving some definitions in the Commentary will lead to inconsistent
application of those definitions. Should the Commission move other
definitions from the Commentary to Sec. 2K2.1 to the guideline itself?
If so, which ones?
(B) Mens Rea Requirement
Synopsis of Proposed Amendment: Section 2K2.1 provides for offense
level increases in cases involving stolen firearms, firearms with
modified serial numbers, and firearms not marked with a serial number
(commonly referred to as ghost guns). See USSG Sec. 2K2.1(b)(4).
Subsection (b)(4)(A) provides a 2-level enhancement if a firearm is
stolen. USSG Sec. 2K2.1(b)(4)(A). Subsections (B)(i) and (ii) provide
a 4-level enhancement based upon the existence and state of any serial
number on firearms considered for purposes of Sec. 2K2.1. USSG Sec.
2K2.1(b)(4)(B)(i) and (ii). The 4-level enhancement may apply, under
subsection (b)(4)(B)(i), if a ``firearm had a serial number that was
modified such that the original information is rendered illegible or
unrecognizable to the unaided eye,'' and, under subsection
(b)(4)(B)(ii), if a ``firearm involved in the offense was not otherwise
marked with a serial number.'' Id. The court may not apply both Sec.
2K2.1(b)(4)(A) and (b)(4)(B) cumulatively, as the provisions are
alternative. See USSG Sec. 1B1.1, comment. (n.4(A)) (``Within each
specific offense characteristic subsection, . . . the offense level
adjustments are alternative; only the one that best describes the
conduct is to be used.'').
The enhancements for stolen firearms and modified serial numbers
impose no requirement of the defendant's knowledge or other mental
state. USSG Sec. 2K2.1(b)(4)(A) and (B)(i). The Commentary to Sec.
2K2.1 states that these enhancements apply ``regardless of whether the
defendant knew or had reason to believe that the firearm was stolen or
had serial number that was modified such that the original information
is rendered illegible or unrecognizable to the unaided eye.'' USSG
Sec. 2K2.1, comment. (n.8(B)). However, subsection (b)(4)(B)(ii) for
firearms not marked with a serial number applies only ``if the
defendant knew that any firearm involved in the offense was not
otherwise marked with a serial number . . . or was willfully blind to
or consciously avoided knowledge of such fact.'' Id.
The enhancement regarding firearms not marked with a serial number
is the result of a 2023 amendment. USSG App. C, amend. 819 (effective
Nov. 1, 2023). The amendment extended the 4-level enhancement at Sec.
2K2.1(b)(4)(B) to firearms not marked with a serial number. Id. The
Commission determined, however, ``that the enhancement should apply
only to those defendants who knew or consciously avoided knowing that
the firearm was not marked with a serial number.'' Id.
Accordingly, in its current form, Sec. 2K2.1(b)(4) imposes a
mental state requirement when the enhancement applies based on a
firearm not marked with a serial number but includes no such
requirement when it applies based on a stolen firearm or firearm with a
modified serial number.
Part B of the proposed amendment would apply the current mental
state requirement from Sec. 2K2.1(b)(4)(B)(ii) to all of subsection
(b)(4).
Under the proposed amendment, a defendant would be subject to the
2-level enhancement under Sec. 2K2.1(b)(4)(A) only if the defendant
``knew, was willfully blind to the fact, or consciously avoided knowing
that . . . any firearm was stolen.'' Similarly, a defendant would be
subject to the 4-level enhancement under Sec. 2K2.1(b)(4)(B)(i) only
if the defendant ``knew, was willfully blind to the fact, or
consciously avoided knowing that . . . any firearm had a serial number
that was modified such that the original information is rendered
illegible or unrecognizable to the unaided eye.'' The proposed
amendment would also make conforming changes to Application Note 8 of
the Commentary to Sec. 2K2.1.
An issue for comment is also provided.
Proposed Amendment
Section 2K2.1(b)(4) is amended by inserting after ``If'' the
following: ``the defendant knew, was willfully blind to the fact, or
consciously avoided knowing that''; by striking ``or (B)(i) any
firearm'' and inserting ``(B) any firearm''; by striking ``(ii) the
defendant knew that any firearm'' and inserting ``(C) any firearm'';
and by striking ``or was willfully blind to or consciously avoided
knowledge of such fact''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended by striking Note 8 as follows:
``8. Application of Subsection (b)(4).--
(A) Interaction with Subsection (a)(7).--If the only offense to
which Sec. 2K2.1 applies is 18 U.S.C. 922(i), (j), or
[[Page 143]]
(u), or 18 U.S.C. 924(l) or (m) (offenses involving a stolen firearm or
stolen ammunition) and the base offense level is determined under
subsection (a)(7), do not apply the enhancement in subsection
(b)(4)(A). This is because the base offense level takes into account
that the firearm or ammunition was stolen. However, if the offense
involved a firearm with a serial number that was modified such that the
original information is rendered illegible or unrecognizable to the
unaided eye, or if 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, apply subsection (b)(4)(B)(i) or (ii).
Similarly, if the offense to which Sec. 2K2.1 applies is 18 U.S.C.
922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an altered or
obliterated serial number) and the base offense level is determined
under subsection (a)(7), do not apply the enhancement in subsection
(b)(4)(B)(i). However, if the offense involved a stolen firearm or
stolen ammunition, or if 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, apply subsection (b)(4)(A) or (B)(ii).
(B) Defendant's State of Mind.--Subsection (b)(4)(A) or (B)(i)
applies regardless of whether the defendant knew or had reason to
believe that the firearm was stolen or had a serial number that was
modified such that the original information is rendered illegible or
unrecognizable to the unaided eye. However, subsection (b)(4)(B)(ii)
only applies if 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.'',
and inserting the following new Note 8:
``8. Application of Subsection (b)(4).--If the only offense to
which Sec. 2K2.1 applies is 18 U.S.C. 922(i), (j), or (u), or 18
U.S.C. 924(l) or (m) (offenses involving a stolen firearm or stolen
ammunition) and the base offense level is determined under subsection
(a)(7), do not apply the enhancement in subsection (b)(4)(A). This is
because the base offense level takes into account that the firearm or
ammunition was stolen. However, if the defendant knew, was willfully
blind to the fact, or consciously avoided knowing that a firearm had a
serial number that was modified such that the original information is
rendered illegible or unrecognizable to the unaided eye, or 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), apply subsection (b)(4)(B) or (C).
Similarly, if the offense to which Sec. 2K2.1 applies is 18 U.S.C.
922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an altered or
obliterated serial number) and the base offense level is determined
under subsection (a)(7), do not apply the enhancement in subsection
(b)(4)(B). However, if the defendant knew, was willfully blind to the
fact, or consciously avoided knowing that a firearm or ammunition was
stolen, or 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), apply subsection
(b)(4)(A) or (C).''.
Issue for Comment
1. Under Part B of the proposed amendment, a defendant would be
subject to the 2-level enhancement under Sec. 2K2.1(b)(4)(A) only if
the defendant ``knew, was willfully blind to the fact, or consciously
avoided knowing that'' a firearm was stolen. Similarly, a defendant
would be subject to the 4-level enhancement under Sec. 2K2.1(b)(4)(B)
only if the defendant ``knew, was willfully blind to the fact, or
consciously avoided knowing that . . . any firearm had a serial number
that was modified such that the original information is rendered
illegible or unrecognizable to the unaided eye.'' The Commission seeks
comment on whether there are evidentiary challenges in firearms cases
to proving a defendant's mental state. Are there changes the Commission
should make to the proposed amendment to address potential evidentiary
issues? If so, what changes should the Commission make?
3. Circuit Conflicts
Synopsis of Proposed Amendment: This proposed amendment addresses
two circuit conflicts involving Sec. 2B3.1 (Robbery) and Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History). See U.S.
Sent'g Comm'n, ``Notice of Final Priorities,'' 89 FR 66176, 66177 (Aug.
14, 2024) (identifying resolution of circuit conflicts as a priority).
The proposed amendment contains two parts (Parts A and B). The
Commission is considering whether to promulgate any or all of these
parts, as they are not mutually exclusive.
Part A addresses a circuit conflict concerning whether the
``physically restrained'' enhancement at Sec. 2B3.1(b)(4)(B) can be
applied to situations in which a victim is restricted from moving at
gunpoint but is not otherwise immobilized through physical measures
such as those listed in the ``physically restrained'' definition set
forth in the Commentary to Sec. 1B1.1 (Application Instructions).
Three options are presented. Issues for comment are also included.
Part B addresses a circuit conflict concerning whether a traffic
stop is an ``intervening arrest'' for purposes of determining whether
multiple prior sentences should be ``counted separately or treated as a
single sentence'' when assigning criminal history points (``single-
sentence rule''). See USSG Sec. 4A1.2(a)(2).
(A) Circuit Conflict Concerning the ``Physically Restrained''
Enhancement at Sec. 2B3.1(b)(4)(B)
Synopsis of Proposed Amendment: Subsection (b)(4)(B) of Sec. 2B3.1
(Robbery) provides for a 2-level enhancement ``if any person was
physically restrained to facilitate commission of the offense or to
facilitate escape.'' For purposes of Sec. 2B3.1(b)(4)(B), the term
``physically restrained'' is defined in Application Note 1(L) to Sec.
1B1.1 (Application Instructions) as ``the forcible restraint of the
victim such as by being tied, bound, or locked up.''
A circuit conflict has arisen concerning whether the enhancement at
Sec. 2B3.1(b)(4)(B) can be applied to situations in which a victim is
restricted from moving at gunpoint but is not otherwise immobilized
through physical measures such as those outlined in the Commentary to
Sec. 1B1.1 (i.e., ``being tied, bound, or locked up'').
The First, Fourth, Sixth, Tenth, and Eleventh Circuits have held
that restricting a victim from moving at gunpoint suffices for the
enhancement. See, e.g., United States v. Wallace, 461 F.3d 15, 34-35
(1st Cir. 2006) (affirming application of enhancement where one victim
had her path blocked and was ordered at gunpoint to stop, and the other
had a gun pointed directly at his face and chest, ``at close range,''
and was commanded to ``look straight ahead into the gun and not to
move''); United States v. Dimache, 665 F.3d 603, 608 (4th Cir. 2011)
(upholding enhancement where ``two bank tellers ordered to the floor at
gunpoint were prevented from both leaving the bank and thwarting the
bank robbery''); United States v. Howell,
[[Page 144]]
17 F.4th 673, 692 (6th Cir. 2021) (noting that the Sixth Circuit has
``rejected the notion of a `physical component' limitation as inapt''
and upholding enhancement where victim was ordered at gunpoint to lie
down on the floor (citation omitted)); United States v. Miera, 539 F.3d
1232, 1235-36 (10th Cir. 2008) (pointing gun around, commanding bank
occupants not to move, and blocking door sufficed for enhancement);
United States v. Deleon, 116 F.4th 1260, 1261-62 (11th Cir. 2024)
(affirming application of enhancement where the defendant ``pointed a
gun at the cashier while demanding money'' but never ``actually touched
the cashier'').
By contrast, the Second, Third, Fifth, Seventh, Ninth, and D.C.
Circuits largely agree that a restraint must be ``physical'' for the
enhancement to apply and that the psychological coercion of pointing a
gun at a victim, without more, does not qualify. See, e.g., United
States v. Anglin, 169 F.3d 154, 164 (2d Cir. 1999) (``displaying a gun
and telling people to get down and not move, without more, is
insufficient to trigger the `physical restraint' enhancement''); United
States v. Bell, 947 F.3d 49, 57, 60-61 (3d Cir. 2020) (adopting ``the
requirement that the restraint involve some physical aspect''; placing
fake gun on victim's neck and forcing him to floor did not suffice);
United States v. Garcia, 857 F.3d 708, 713-14 (5th Cir. 2017) (vacating
enhancement because ``standing near a door, holding a firearm, and
instructing a victim to get on the ground'' did not ``differentiate
th[e] case in any meaningful way from a typical armed robbery'');
United States v. Herman, 930 F.3d 872, 877 (7th Cir. 2019) (``more than
pointing a gun at someone and ordering that person not to move is
necessary''); United States v. Parker, 241 F.3d 1114, 1118-19 (9th Cir.
2001) (``briefly pointing a gun at a victim and commanding her once to
get down'' did not constitute ``physical restraint, given that nearly
all armed bank robberies will presumably involve such acts''); see also
United States v. Drew, 200 F.3d 871, 880 (D.C. Cir. 2000) (``the phrase
`being tied, bound, or locked up' indicates that physical restraint
requires the defendant either to restrain the victim through bodily
contact or to confine the victim in some way''; physically restrained
adjustment did not apply where victim was ordered to walk down the
stairs at gunpoint).
Part A of the proposed amendment presents three options for
responding to this circuit conflict by amending the enhancement at
Sec. 2B3.1(b)(4)(B).
Option 1 would generally adopt the approach of the First, Fourth,
Sixth, Tenth, and Eleventh Circuits that the enhancement applies with
or without physical measures. It would amend the language of Sec.
2B3.1(b)(4)(B) to specify that the increase applies to cases in which
``any person's freedom of movement was restricted through physical
contact or confinement (such as being tied, bound, or locked up) or
other means (such as being held at gunpoint or having a path of escape
blocked) to facilitate commission of the offense or to facilitate
escape.'' Option 1 also includes conforming changes to the Commentary
to Sec. 2B3.1.
Option 2 would generally adopt the approach of the Second, Third,
Fifth, Seventh, Ninth, and D.C. Circuits that physical measures must be
used for the enhancement to apply. It would amend the language of Sec.
2B3.1(b)(4)(B) to clarify that the increase applies only in cases in
which ``any person's freedom of movement was restricted through
physical contact or confinement, such as being tied, bound, or locked
up, to facilitate commission of the offense or to facilitate escape.''
Option 2 also includes conforming changes to the Commentary to Sec.
2B3.1.
Option 3 would combine the approaches from both sides of the
circuit split into a two-tiered enhancement that would replace the
current ``physically restrained'' enhancement at Sec. 2B3.1(b)(4)(B).
The new enhancement would provide for a 2-level enhancement for
offenses in which ``any person's freedom of movement was restricted
through physical contact or confinement, such as being tied, bound, or
locked up, to facilitate commission of the offense or to facilitate
escape.'' It would also add a 1-level enhancement for offenses in which
``any person's freedom of movement was restricted through means other
than physical contact or confinement, such as being held at gunpoint or
having a path of escape blocked, to facilitate commission of the
offense or to facilitate escape.'' Option 3 includes conforming changes
to the Commentary to Sec. 2B3.1.
Issues for comment are also provided.
Proposed Amendment
Option 1 (First, Fourth, Sixth, Tenth, and Eleventh Approach--
Physical or Non-Physical Means):
Section 2B3.1(b)(4)(B) is amended by striking ``if any person was
physically restrained'' and inserting ``if any person's freedom of
movement was restricted through physical contact or confinement (such
as being tied, bound, or locked up) or other means (such as being held
at gunpoint or having a path of escape blocked)''.
The Commentary to Sec. 2B3.1 captioned ``Application Notes'' is
amended in Note 1 by striking `` `abducted,' and `physically
restrained' are defined'' and inserting ``and `abducted,' have the
meaning given such terms''.
The Commentary to Sec. 2B3.1 captioned ``Background'' is amended
by striking ``was physically restrained by being tied, bound, or lock
up'' and inserting ``a victim's freedom of movement was restricted''.
Option 2 (Second, Third, Fifth, Seventh, Ninth, and D.C. Circuits
Approach--Physical Contact or Confinement Required):
Section 2B3.1(b)(4)(B) is amended by striking ``if any person was
physically restrained'' and inserting ``if any person's freedom of
movement was restricted through physical contact or confinement, such
as being tied, bound, or locked up,''.
The Commentary to Sec. 2B3.1 captioned ``Application Notes'' is
amended in Note 1 by striking `` `abducted,' and `physically
restrained' are defined'' and inserting ``and `abducted,' have the
meaning given such terms''.
The Commentary to Sec. 2B3.1 captioned ``Background'' is amended
by striking ``was physically restrained by being tied, bound, or lock
up'' and inserting ``a victim's freedom of movement was restricted''.
Option 3 (Combination of Both Approaches):
Section 2B3.1(b)(4) is amended by striking the following:
``(A) If any person was abducted to facilitate commission of the
offense or to facilitate escape, increase by 4 levels; or (B) if any
person was physically restrained to facilitate commission of the
offense or to facilitate escape, increase by 2 levels'';
and inserting the following:
``(A) If any person was abducted to facilitate escape, increase by
4 levels; (B) if any person's freedom of movement was restricted
through physical contact or confinement, such as being tied, bound, or
locked up, to facilitate commission of the offense or to facilitate
escape, increase by 2 levels; or (C) if any person's freedom of
movement was restricted through means other than physical contact or
confinement, such as being held at gunpoint or having a path of escape
blocked, to facilitate commission of the offense or to facilitate
escape, increase by 1 level''.
The Commentary to Sec. 2B3.1 captioned ``Application Notes'' is
amended in Note 1 by striking `` `abducted,' and `physically
restrained' are defined'' and
[[Page 145]]
inserting ``and `abducted,' have the meaning given such terms''.
The Commentary to Sec. 2B3.1 captioned ``Background'' is amended
by striking ``was physically restrained by being tied, bound, or lock
up'' and inserting ``a victim's freedom of movement was restricted''.
Issues for Comment
1. Part A of the proposed amendment sets forth three 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?
2. The term ``physically restrained,'' as used in Sec. 2B3.1
(Robbery), is defined in Application Note 1(L) of the Commentary to
Sec. 1B1.1 (Application Instructions). Other guidelines also use the
term ``physically restrained'' and define such term by reference to the
Commentary to Sec. 1B1.1. See Sec. Sec. 2B3.2(b)(5)(B) (``[I]f any
person was physically restrained to facilitate commission of the
offense or to facilitate escape, increase by 2 levels.''),
2E2.1(b)(3)(B) (``[I]f any person was physically restrained to
facilitate commission of the offense or to facilitate escape, increase
by 2 levels.''), 3A1.3 (``If a victim was physically restrained in the
course of the offense, increase by 2 levels.'').
If the Commission were to promulgate Part A of the proposed
amendment, should the Commission also amend any or all of these other
guidelines to mirror the proposed approach for Sec. 2B3.1? Instead of
amending Sec. 2B3.1 or the other guidelines, should the Commission
amend Application Note 1(L) of the Commentary to Sec. 1B1.1 to mirror
the proposed approach for Sec. 2B3.1?
(B) Circuit Conflict Concerning Meaning of ``Intervening Arrest'' in
Sec. 4A1.2(a)(2)
Synopsis of Proposed Amendment: Subsection (a)(2) of Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History) outlines
whether multiple prior sentences should be ``counted separately or
treated as a single sentence'' for purposes of assigning criminal
history points (``single-sentence rule''). Prior sentences should be
``counted separately if the sentences were imposed for offenses that
were separated by an intervening arrest (i.e., the defendant is
arrested for the first offense prior to committing the second
offense).'' USSG Sec. 4A1.2(a)(2) (emphasis added). If ``there is no
intervening arrest, prior sentences are counted separately unless (A)
the sentences resulted from offenses contained in the same charging
instrument; or (B) the sentences were imposed on the same day.'' Id.
(emphasis added).
There is a circuit split over the meaning of ``intervening
arrest.'' The Third, Sixth, Ninth, and Eleventh Circuits have held that
a formal, custodial arrest is required, and that a citation or summons
following a traffic stop does not qualify. See United States v. Ley,
876 F.3d 103, 109 (3d Cir. 2017) (``[A] traffic stop, followed by the
issuance of a summons, is not an arrest. The Court therefore holds
that, for purposes of section 4A1.2(a)(2) of the Sentencing Guidelines,
an arrest is a formal, custodial arrest.''); United States v. Rogers,
86 F.4th 259, 264-65 (6th Cir. 2023) (``for purposes of Sec.
4A1.2(a)(2), an arrest requires placing someone in police custody as
part of a criminal investigation''; ``subtle interactions with law
enforcement--such as traffic stops'' are not ``the focus of the
Guidelines' approach'' to prior sentences); United States v. Leal-
Felix, 665 F.3d 1037, 1041 (9th Cir. 2011) (en banc) (for purposes of
the guidelines, ``an arrest is a `formal arrest' '' not a ``mere
citation'' and ``may be indicated by informing the suspect that he is
under arrest, transporting the suspect to the police station, and/or
booking the suspect into jail''); United States v. Wright, 862 F.3d
1265, 1282 (11th Cir. 2017) (``traffic citation for driving with a
suspended license is not an arrest under Sec. 4A1.2(a)(2)''). By
contrast, the Seventh Circuit has adopted a broad view of the term,
holding that a traffic stop amounts to an intervening arrest. See
United States v. Morgan, 354 F.3d 621, 624 (7th Cir. 2003) (``A traffic
stop is an `arrest' in federal parlance.'').
Part B of the proposed amendment responds to this circuit conflict.
It would add a provision to Sec. 4A1.2(a)(2) clarifying that an
``[i]ntervening arrest . . . requires a formal, custodial arrest and is
ordinarily indicated by placing someone in police custody as part of a
criminal investigation, informing the suspect that the suspect is under
arrest, transporting the suspect to the police station, or booking the
suspect into jail.'' It would also specify that a ``noncustodial
encounter with law enforcement, such as a traffic stop, is not an
intervening arrest.''
Proposed Amendment
Section 4A1.2(a)(2) is amended by inserting at the end the
following new paragraph:
`` `Intervening arrest,' for purposes of this provision, requires a
formal, custodial arrest and is ordinarily indicated by placing someone
in police custody as part of a criminal investigation, informing the
suspect that the suspect is under arrest, transporting the suspect to
the police station, or booking the suspect into jail. A noncustodial
encounter with law enforcement, such as a traffic stop, is not an
intervening arrest.''.
4. Simplification of Three-Step Process
Synopsis of Proposed Amendment: In August 2024, the Commission
identified as one of its policy priorities for the amendment cycle
ending May 1, 2025, ``[s]implifying the guidelines and clarifying their
role in sentencing,'' including ``possibly amending the Guidelines
Manual to address 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.'' U.S. Sent'g
Comm'n, ``Notice of Final Priorities,'' 89 FR 66176 (Aug. 14, 2024).
In December 2023, the Commission published a proposed amendment
that would have provided for a two-step process in Sec. 1B1.1
(Application Instructions) with accompanying changes throughout the
Guidelines Manual to convert the Commission's existing departures and
policy statements to ``additional considerations.'' More specifically,
that proposed amendment would have revised Sec. 1B1.1 to account for a
two-step sentencing process, established a new Chapter Six further
addressing the court's consideration of the factors set forth in 18
U.S.C. 3553(a), eliminated Chapter Five, Part H and most of Part K, and
reclassified most ``departures'' currently provided throughout the
Guidelines Manual as ``Additional Considerations'' that may be relevant
to the court's determination under 18 U.S.C. 3553(a). See Proposed
Amendments to the Sentencing Guidelines (Dec. 2023) 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>.
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 the Commission with
broad authority to develop guidelines that will further the basic
purposes of criminal sentencing: deterrence, incapacitation,
retribution, and rehabilitation. The Act contains detailed instructions
as to how this determination should be made, including that the
Commission establish categories of offenses and categories of
defendants for use in prescribing
[[Page 146]]
guideline ranges that specify an appropriate sentence and to consider
whether, and to what extent, specific offense-based and defendant-based
factors are relevant to sentencing. See 28 U.S.C. 994(c), (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 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, the court must also fully consider the factors in
18 U.S.C. 3553(a), including, among other factors, ``the nature and
circumstances of the offense and the history and characteristics of the
defendant,'' to determine a sentence that is sufficient but not greater
than necessary. See Rita v. United States, 551 U.S. 338, 347-48 (2007).
Section 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. Post-
Booker, the Commission incorporated 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; (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 imposing a sentence that is sufficient,
but not greater than necessary (whether within or outside the
applicable guideline range).
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 defendant, 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 generally 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--
(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.
[[Page 147]]
(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. For further information pertaining to the application of
departure provisions other than Sec. 5K1.1 or Sec. 5K3.1 (either
alone or in conjunction with Sec. 5K1.1 or Sec. 5K3.1), see <a href="https://www.ussc.gov/education/backgrounders/2024-simplification-data">https://www.ussc.gov/education/backgrounders/2024-simplification-data</a>. 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.
Part B of 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).
Part B of 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 an
Appendix of the Guidelines Manual. Second, Part B of 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. Part B of the proposed amendment sets forth the calculation of
guideline range and determination of sentencing requirements and
options under the Guidelines Manual as the first step of the sentencing
process in Sec. 1B1.1(a). The court's consideration of the section
3553(a) factors is set forth as the second and final step of the
sentencing process in Sec. 1B1.1(b). As revised, Sec. 1B1.1(b)
expressly lists the factors courts must consider pursuant to 18 U.S.C.
3553(a). Additionally, the definition of ``departures'' is removed from
the application notes to Sec. 1B1.1, and the Background Commentary is
revised accordingly.
In addition, Part B of the proposed amendment seeks to better
address the distinction between the statutory limitations on the
Commission's ability to consider certain offense characteristics and
individual circumstances in recommending a term of imprisonment or
length of imprisonment, and the requirement that the court consider a
broad range of individual and offense characteristics in determining an
appropriate sentence pursuant to 18 U.S.C. 3553(a). More specifically,
Part B of the proposed amendment revises current Sec. 1A3.1
(Authority), which sets forth the Commission's authority in developing
the guidelines. First, the provision is redesignated as Sec. 1A1.1
and, for clarity, is retitled as ``Commission's Authority.'' Second, in
addition to referring to 28 U.S.C. 994(a) as the basis of the
Commission's authority to promulgate guidelines, policy statements, and
commentary, the provision would also explain how the Commission has
complied with the requirements placed by Congress, noting what is not
considered by the Commission in formulating the guidelines used to
calculate the guideline range.
A new background commentary explains that the requirements and
limitations imposed upon the Commission by 28 U.S.C. 994, do not apply
to sentencing courts. It makes clear that ``Congress set forth the
factors that a court must consider in imposing a sentence that is
`sufficient but not greater than necessary' to comply with the purposes
of sentencing in 18 U.S.C. 3553(a)'' and that ``[t]hese statutory
factors permit a sentencing court to consider the `widest possible
breadth of information' about a defendant ensuring the court is in
`possession of the fullest information possible concerning the
defendant's life and characteristics.' '' The new background commentary
concludes by noting that the application instructions set forth in
Sec. 1B1.1 are structured to reflect a two-step process in which the
sentencing court must first correctly calculate the applicable
guideline range as the ``starting point and initial benchmark'' and
then must determine an appropriate sentence upon consideration of all
the factors set forth by Congress in 18 U.S.C. 3553(a).
Consistent with the revised approach, Part B of the proposed
amendment would delete most ``departures'' currently provided
throughout the Guidelines Manual. Changes would be made throughout the
Guidelines Manual by deleting the departure provisions currently
contained in commentary to various guidelines. Part B of 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, all
provisions in Chapter Five, Part K (Departures), with the exception of
those pertaining to substantial assistance to the authorities and early
disposition programs, 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.
Finally, Chapter Five is also amended by revising the Commentary to
Sec. 5B1.1 (Imposition of a Term of Probation) and Sec. 5D1.1
(Imposition of a Term of Supervised Release) to emphasize the factors
courts are statutorily required to consider in determining the
conditions of probation or supervised release. The commentary is
further revised to retain factors the Commission had previously
identified as relevant in Chapter Five, Part H pursuant to the
congressional guidance provided to the Commission in 28 U.S.C. 994(d)
and (e).
The issues for comment set forth below are informed by the proposed
amendment contained in Part B.
(A) Issues for Comment
1. Part B of the proposed amendment would remove the second step in
the three-step process, as set forth in subsection (b) of Sec. 1B1.1
(Application
[[Page 148]]
Instructions), 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 Commission invites general comment on whether reconceptualizing
the three-step process in this manner streamlines the application of
the Guidelines Manual and better reflects the interaction between 18
U.S.C. 3553(a) and the guidelines. Does the approach set forth in Part
B of the proposed amendment better achieve these goals than the
proposed amendment published in December 2023 (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>), which would have retained current departure
provisions in more generalized language and reclassified them as
``Additional Considerations'' that may be relevant to the court's
determination under 18 U.S.C. 3553(a)? 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 Part B of the proposed
amendment, is consistent with the Commission's authority under 28
U.S.C. 994 and 995 and all other provisions of federal law. Similarly,
the Commission seeks comment on whether revising the three-step process
is consistent with other congressional directives to the Commission,
such as the restrictions on the Commission's authority to promulgate
further reasons for downward departures set forth in the Prosecutorial
Remedies and Other Tools to end the Exploitation of Children Today Act
of 2003 (``PROTECT Act''), Public Law 108-21, 117 Stat. 649 (2003).
3. The Guidelines Manual currently contains more than two hundred
departure provisions in Chapter Five, Part K (Departures), 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. Such
provisions were either included by the original Commission or through
subsequent guideline amendments to provide guidance to courts in
identifying ``aggravating or mitigating circumstance(s) of a kind, or
to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described.'' See 18 U.S.C. 3553(b).
The proposed amendment contained in Part B would delete most
``departures'' currently provided throughout the Guidelines Manual.
Only the provisions pertaining to substantial assistance to authorities
(currently provided for in Chapter Five, Part K, Subpart 1) and early
disposition programs (currently provided for in Sec. 5K3.1 (Early
Disposition Programs (Policy Statement)) would be retained in the
Manual, while other deleted ``departures'' would be accounted for
through the court's consideration of the applicable factors in 18
U.S.C. 3553(a). If the Commission were to remove the second step in the
three-step process, as proposed in Part B, should the Commission
continue to expressly account for any ``departure provisions'' in the
Guidelines Manual beside substantial assistance and Early Disposition
Programs? If so, which provisions should be retained and how?
Alternatively, should the Commission remove the departures contained in
Chapter Five, Part K, and the provisions in Chapter Five, Part H,
addressing the relevance of certain specific personal characteristics
in sentencing, while retaining other departure provisions throughout
the Guidelines Manual?
The Commission also seeks comment on whether it should consolidate
and preserve for historical purposes any deleted departure provisions.
If so, how should the Commission do so? For example, should the
Commission somehow preserve the content of deleted departures in a new
Appendix to the Guidelines Manual or in some other format?
4. At some places in the Guidelines Manual, commentary including a
departure provision also provides background information that the
Commission determined was relevant to the court's consideration. For
example, in setting forth a series of departure considerations,
Application Note 27 of the Commentary to Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking) also provides
background information regarding the nature and impact of certain
controlled substances, such as synthetic cathinones and cannabinoids,
that may be informative to a court's determination as to whether a
departure is warranted. The Commission seeks comment on whether it
should retain such type of background information even if the departure
language is removed. If so, which provisions in the Guidelines Manual
currently contain background information that should be retained?
(B) Proposed Amendment
Chapter One is amended by striking Part A as follows:
`` Part A--Introduction and Authority
Introductory Commentary
Subparts 1 and 2 of this Part provide an introduction to the
Guidelines Manual describing the historical development and evolution
of the federal sentencing guidelines. Subpart 1 sets forth the original
introduction to the Guidelines Manual as it first appeared in 1987,
with the inclusion of amendments made occasionally thereto between 1987
and 2000. The original introduction, as so amended, explained a number
of policy decisions made by the United States Sentencing Commission
(`Commission') when it promulgated the initial set of guidelines and
therefore provides a useful reference for contextual and historical
purposes. Subpart 2 further describes the evolution of the federal
sentencing guidelines after the initial guidelines were promulgated.
Subpart 3 of this Part states the authority of the Commission to
promulgate federal sentencing guidelines, policy statements, and
commentary.
1. Original Introduction to the Guidelines Manual
The following provisions of this Subpart set forth the original
introduction to this manual, effective November 1, 1987, and as amended
through November 1, 2000:
1. Authority
The United States Sentencing Commission (`Commission') is an
independent agency in the judicial branch composed of seven voting and
two non-voting, ex officio members. Its principal purpose is to
establish sentencing policies and practices for the federal criminal
justice system that will assure the ends of justice by promulgating
detailed guidelines prescribing the appropriate sentences for offenders
convicted of federal crimes.
The guidelines and policy statements promulgated by the Commission
are issued pursuant to Section 994(a) of Title 28, United States Code.
2. The Statutory Mission
The Sentencing Reform Act of 1984 (Title II of the Comprehensive
Crime Control Act of 1984) provides for the development of guidelines
that will further the basic purposes of criminal punishment:
deterrence, incapacitation, just punishment, and rehabilitation. The
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Act delegates broad authority to the Commission to review and
rationalize the federal sentencing process.
The Act contains detailed instructions as to how this determination
should be made, the most important of which directs the Commission to
create categories of offense behavior and offender characteristics. An
offense behavior category might consist, for example, of `bank robbery/
committed with a gun/$2500 taken.' An offender characteristic category
might be `offender with one prior conviction not resulting in
imprisonment.' The Commission is required to prescribe guideline ranges
that specify an appropriate sentence for each class of convicted
persons determined by coordinating the offense behavior categories with
the offender characteristic categories. Where the guidelines call for
imprisonment, the range must be narrow: the maximum of the range cannot
exceed the minimum by more than the greater of 25 percent or six
months. 28 U.S.C. 994(b)(2).
Pursuant to the Act, the sentencing court must select a sentence
from within the guideline range. If, however, a particular case
presents atypical features, the Act allows the court to depart from the
guidelines and sentence outside the prescribed range. In that case, the
court must specify reasons for departure. 18 U.S.C. 3553(b). If the
court sentences within the guideline range, an appellate court may
review the sentence to determine whether the guidelines were correctly
applied. If the court departs from the guideline range, an appellate
court may review the reasonableness of the departure. 18 U.S.C. 3742.
The Act also abolishes parole, and substantially reduces and
restructures good behavior adjustments.
The Commission's initial guidelines were submitted to Congress on
April 13, 1987. After the prescribed period of Congressional review,
the guidelines took effect on November 1, 1987, and apply to all
offenses committed on or after that date. The Commission has the
authority to submit guideline amendments each year to Congress between
the beginning of a regular Congressional session and May 1. Such
amendments automatically take effect 180 days after submission unless a
law is enacted to the contrary. 28 U.S.C. 994(p).
The initial sentencing guidelines and policy statements were
developed after extensive hearings, deliberation, and consideration of
substantial public comment. The Commission emphasizes, however, that it
views the guideline-writing process as evolutionary. It expects, and
the governing statute anticipates, that continuing research,
experience, and analysis will result in modifications and revisions to
the guidelines through submission of amendments to Congress. To this
end, the Commission is established as a permanent agency to monitor
sentencing practices in the federal courts.
3. The Basic Approach (Policy Statement)
To understand the guidelines and their underlying rationale, it is
important to focus on the three objectives that Congress sought to
achieve in enacting the Sentencing Reform Act of 1984. The Act's basic
objective was to enhance the ability of the criminal justice system to
combat crime through an effective, fair sentencing system. To achieve
this end, Congress first sought honesty in sentencing. It sought to
avoid the confusion and implicit deception that arose out of the pre-
guidelines sentencing system which required the court to impose an
indeterminate sentence of imprisonment and empowered the parole
commission to determine how much of the sentence an offender actually
would serve in prison. This practice usually resulted in a substantial
reduction in the effective length of the sentence imposed, with
defendants often serving only about one-third of the sentence imposed
by the court.
Second, Congress sought reasonable uniformity in sentencing by
narrowing the wide disparity in sentences imposed for similar criminal
offenses committed by similar offenders. Third, Congress sought
proportionality in sentencing through a system that imposes
appropriately different sentences for criminal conduct of differing
severity.
Honesty is easy to achieve: the abolition of parole makes the
sentence imposed by the court the sentence the offender will serve,
less approximately fifteen percent for good behavior. There is a
tension, however, between the mandate of uniformity and the mandate of
proportionality. Simple uniformity--sentencing every offender to five
years--destroys proportionality. Having only a few simple categories of
crimes would make the guidelines uniform and easy to administer, but
might lump together offenses that are different in important respects.
For example, a single category for robbery that included armed and
unarmed robberies, robberies with and without injuries, robberies of a
few dollars and robberies of millions, would be far too broad.
A sentencing system tailored to fit every conceivable wrinkle of
each case would quickly become unworkable and seriously compromise the
certainty of punishment and its deterrent effect. For example: a bank
robber with (or without) a gun, which the robber kept hidden (or
brandished), might have frightened (or merely warned), injured
seriously (or less seriously), tied up (or simply pushed) a guard,
teller, or customer, at night (or at noon), in an effort to obtain
money for other crimes (or for other purposes), in the company of a few
(or many) other robbers, for the first (or fourth) time.
The list of potentially relevant features of criminal behavior is
long; the fact that they can occur in multiple combinations means that
the list of possible permutations of factors is virtually endless. The
appropriate relationships among these different factors are exceedingly
difficult to establish, for they are often context specific. Sentencing
courts do not treat the occurrence of a simple bruise identically in
all cases, irrespective of whether that bruise occurred in the context
of a bank robbery or in the context of a breach of peace. This is so,
in part, because the risk that such a harm will occur differs depending
on the underlying offense with which it is connected; and also because,
in part, the relationship between punishment and multiple harms is not
simply additive. The relation varies depending on how much other harm
has occurred. Thus, it would not be proper to assign points for each
kind of harm and simply add them up, irrespective of context and total
amounts.
The larger the number of subcategories of offense and offender
characteristics included in the guidelines, the greater the complexity
and the less workable the system. Moreover, complex combinations of
offense and offender characteristics would apply and interact in
unforeseen ways to unforeseen situations, thus failing to cure the
unfairness of a simple, broad category system. Finally, and perhaps
most importantly, probation officers and courts, in applying a complex
system having numerous subcategories, would be required to make a host
of decisions regarding whether the underlying facts were sufficient to
bring the case within a particular subcategory. The greater the number
of decisions required and the greater their complexity, the greater the
risk that different courts would apply the guidelines differently to
situations that, in fact, are similar, thereby reintroducing the very
disparity that the guidelines were designed to reduce.
In view of the arguments, it would have been tempting to retreat to
the
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simple, broad category approach and to grant courts the discretion to
select the proper point along a broad sentencing range. Granting such
broad discretion, however, would have risked correspondingly broad
disparity in sentencing, for different courts may exercise their
discretionary powers in different ways. Such an approach would have
risked a return to the wide disparity that Congress established the
Commission to reduce and would have been contrary to the Commission's
mandate set forth in the Sentencing Reform Act of 1984.
In the end, there was no completely satisfying solution to this
problem. The Commission had to balance the comparative virtues and
vices of broad, simple categorization and detailed, complex
subcategorization, and within the constraints established by that
balance, minimize the discretionary powers of the sentencing court. Any
system will, to a degree, enjoy the benefits and suffer from the
drawbacks of each approach.
A philosophical problem arose when the Commission attempted to
reconcile the differing perceptions of the purposes of criminal
punishment. Most observers of the criminal law agree that the ultimate
aim of the law itself, and of punishment in particular, is the control
of crime. Beyond this point, however, the consensus seems to break
down. Some argue that appropriate punishment should be defined
primarily on the basis of the principle of `just deserts.' Under this
principle, punishment should be scaled to the offender's culpability
and the resulting harms. Others argue that punishment should be imposed
primarily on the basis of practical `crime control' considerations.
This theory calls for sentences that most effectively lessen the
likelihood of future crime, either by deterring others or
incapacitating the defendant.
Adherents of each of these points of view urged the Commission to
choose between them and accord one primacy over the other. As a
practical matter, however, this choice was unnecessary because in most
sentencing decisions the application of either philosophy will produce
the same or similar results.
In its initial set of guidelines, the Commission sought to solve
both the practical and philosophical problems of developing a coherent
sentencing system by taking an empirical approach that used as a
starting point data estimating pre-guidelines sentencing practice. It
analyzed data drawn from 10,000 presentence investigations, the
differing elements of various crimes as distinguished in substantive
criminal statutes, the United States Parole Commission's guidelines and
statistics, and data from other relevant sources in order to determine
which distinctions were important in pre-guidelines practice. After
consideration, the Commission accepted, modified, or rationalized these
distinctions.
This empirical approach helped the Commission resolve its practical
problem by defining a list of relevant distinctions that, although of
considerable length, was short enough to create a manageable set of
guidelines. Existing categories are relatively broad and omit
distinctions that some may believe important, yet they include most of
the major distinctions that statutes and data suggest made a
significant difference in sentencing decisions. Relevant distinctions
not reflected in the guidelines probably will occur rarely and
sentencing courts may take such unusual cases into account by departing
from the guidelines.
The Commission's empirical approach also helped resolve its
philosophical dilemma. Those who adhere to a just deserts philosophy
may concede that the lack of consensus might make it difficult to say
exactly what punishment is deserved for a particular crime. Likewise,
those who subscribe to a philosophy of crime control may acknowledge
that the lack of sufficient data might make it difficult to determine
exactly the punishment that will best prevent that crime. Both groups
might therefore recognize the wisdom of looking to those distinctions
that judges and legislators have, in fact, made over the course of
time. These established distinctions are ones that the community
believes, or has found over time, to be important from either a just
deserts or crime control perspective.
The Commission did not simply copy estimates of pre-guidelines
practice as revealed by the data, even though establishing offense
values on this basis would help eliminate disparity because the data
represent averages. Rather, it departed from the data at different
points for various important reasons. Congressional statutes, for
example, suggested or required departure, as in the case of the Anti-
Drug Abuse Act of 1986 that imposed increased and mandatory minimum
sentences. In addition, the data revealed inconsistencies in treatment,
such as punishing economic crime less severely than other apparently
equivalent behavior.
Despite these policy-oriented departures from pre-guidelines
practice, the guidelines represent an approach that begins with, and
builds upon, empirical data. The guidelines will not please those who
wish the Commission to adopt a single philosophical theory and then
work deductively to establish a simple and perfect set of
categorizations and distinctions. The guidelines may prove acceptable,
however, to those who seek more modest, incremental improvements in the
status quo, who believe the best is often the enemy of the good, and
who recognize that these guidelines are, as the Act contemplates, but
the first step in an evolutionary process. After spending considerable
time and resources exploring alternative approaches, the Commission
developed these guidelines as a practical effort toward the achievement
of a more honest, uniform, equitable, proportional, and therefore
effective sentencing system.
4. The Guidelines' Resolution of Major Issues (Policy Statement)
The guideline-drafting process required the Commission to resolve a
host of important policy questions typically involving rather evenly
balanced sets of competing considerations. As an aid to understanding
the guidelines, this introduction briefly discusses several of those
issues; commentary in the guidelines explains others.
(a) Real Offense vs. Charge Offense Sentencing
One of the most important questions for the Commission to decide
was whether to base sentences upon the actual conduct in which the
defendant engaged regardless of the charges for which he was indicted
or convicted (`real offense' sentencing), or upon the conduct that
constitutes the elements of the offense for which the defendant was
charged and of which he was convicted (`charge offense' sentencing). A
bank robber, for example, might have used a gun, frightened bystanders,
taken $50,000, injured a teller, refused to stop when ordered, and
raced away damaging property during his escape. A pure real offense
system would sentence on the basis of all identifiable conduct. A pure
charge offense system would overlook some of the harms that did not
constitute statutory elements of the offenses of which the defendant
was convicted.
The Commission initially sought to develop a pure real offense
system. After all, the pre-guidelines sentencing system was, in a
sense, this type of system. The sentencing court and the parole
commission took account of the conduct in which the defendant actually
engaged, as determined in a presentence report, at the sentencing
hearing, or
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before a parole commission hearing officer. The Commission's initial
efforts in this direction, carried out in the spring and early summer
of 1986, proved unproductive, mostly for practical reasons. To make
such a system work, even to formalize and rationalize the status quo,
would have required the Commission to decide precisely which harms to
take into account, how to add them up, and what kinds of procedures the
courts should use to determine the presence or absence of disputed
factual elements. The Commission found no practical way to combine and
account for the large number of diverse harms arising in different
circumstances; nor did it find a practical way to reconcile the need
for a fair adjudicatory procedure with the need for a speedy sentencing
process given the potential existence of hosts of adjudicated `real
harm' facts in many typical cases. The effort proposed as a solution to
these problems required the use of, for example, quadratic roots and
other mathematical operations that the Commission considered too
complex to be workable. In the Commission's view, such a system risked
return to wide disparity in sentencing practice.
In its initial set of guidelines submitted to Congress in April
1987, the Commission moved closer to a charge offense system. This
system, however, does contain a significant number of real offense
elements. For one thing, the hundreds of overlapping and duplicative
statutory provisions that make up the federal criminal law forced the
Commission to write guidelines that are descriptive of generic conduct
rather than guidelines that track purely statutory language. For
another, the guidelines take account of a number of important, commonly
occurring real offense elements such as role in the offense, the
presence of a gun, or the amount of money actually taken, through
alternative base offense levels, specific offense characteristics,
cross references, and adjustments.
The Commission recognized that a charge offense system has
drawbacks of its own. One of the most important is the potential it
affords prosecutors to influence sentences by increasing or decreasing
the number of counts in an indictment. Of course, the defendant's
actual conduct (that which the prosecutor can prove in court) imposes a
natural limit upon the prosecutor's ability to increase a defendant's
sentence. Moreover, the Commission has written its rules for the
treatment of multicount convictions with an eye toward eliminating
unfair treatment that might flow from count manipulation. For example,
the guidelines treat a three-count indictment, each count of which
charges sale of 100 grams of heroin or theft of $10,000, the same as a
single-count indictment charging sale of 300 grams of heroin or theft
of $30,000. Furthermore, a sentencing court may control any
inappropriate manipulation of the indictment through use of its
departure power. Finally, the Commission will closely monitor charging
and plea agreement practices and will make appropriate adjustments
should they become necessary.
(b) Departures
The sentencing statute permits a court to depart from a guideline-
specified sentence only when it finds `an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that
described.' 18 U.S.C. 3553(b). The Commission intends the sentencing
courts to treat each guideline as carving out a `heartland,' a set of
typical cases embodying the conduct that each guideline describes. When
a court finds an atypical case, one to which a particular guideline
linguistically applies but where conduct significantly differs from the
norm, the court may consider whether a departure is warranted. Section
5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic
Status), Sec. 5H1.12 (Lack of Guidance as a Youth and Similar
Circumstances), the third sentence of Sec. 5H1.4 (Physical Condition,
Including Drug or Alcohol Dependence or Abuse), the last sentence of
Sec. 5K2.12 (Coercion and Duress), and Sec. 5K2.19 (Post-Sentencing
Rehabilitative Efforts)* list several factors that the court cannot
take into account as grounds for departure. With those specific
exceptions, however, the Commission does not intend to limit the kinds
of factors, whether or not mentioned anywhere else in the guidelines,
that could constitute grounds for departure in an unusual case.
*Note: Section 5K2.19 (Post-Sentencing Rehabilitative Efforts)
was deleted by Amendment 768, effective November 1, 2012. (See USSG
App. C, amendment 768.)
The Commission has adopted this departure policy for two reasons.
First, it is difficult to prescribe a single set of guidelines that
encompasses the vast range of human conduct potentially relevant to a
sentencing decision. The Commission also recognizes that the initial
set of guidelines need not do so. The Commission is a permanent body,
empowered by law to write and rewrite guidelines, with progressive
changes, over many years. By monitoring when courts depart from the
guidelines and by analyzing their stated reasons for doing so and court
decisions with references thereto, the Commission, over time, will be
able to refine the guidelines to specify more precisely when departures
should and should not be permitted.
Second, the Commission believes that despite the courts' legal
freedom to depart from the guidelines, they will not do so very often.
This is because the guidelines, offense by offense, seek to take
account of those factors that the Commission's data indicate made a
significant difference in pre-guidelines sentencing practice. Thus, for
example, where the presence of physical injury made an important
difference in pre-guidelines sentencing practice (as in the case of
robbery or assault), the guidelines specifically include this factor to
enhance the sentence. Where the guidelines do not specify an
augmentation or diminution, this is generally because the sentencing
data did not permit the Commission to conclude that the factor was
empirically important in relation to the particular offense. Of course,
an important factor (e.g., physical injury) may infrequently occur in
connection with a particular crime (e.g., fraud). Such rare occurrences
are precisely the type of events that the courts' departure powers were
designed to cover--unusual cases outside the range of the more typical
offenses for which the guidelines were designed.
It is important to note that the guidelines refer to two different
kinds of departure. The first involves instances in which the
guidelines provide specific guidance for departure by analogy or by
other numerical or non-numerical suggestions. The Commission intends
such suggestions as policy guidance for the courts. The Commission
expects that most departures will reflect the suggestions and that the
courts of appeals may prove more likely to find departures
`unreasonable' where they fall outside suggested levels.
A second type of departure will remain unguided. It may rest upon
grounds referred to in Chapter Five, Part K (Departures) or on grounds
not mentioned in the guidelines. While Chapter Five, Part K lists
factors that the Commission believes may constitute grounds for
departure, the list is not exhaustive. The Commission recognizes that
there may be other grounds for departure that are not mentioned; it
also believes there may be cases in which a departure outside suggested
levels is warranted. In its view, however, such cases will be highly
infrequent.
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(c) Plea Agreements
Nearly ninety percent of all federal criminal cases involve guilty
pleas and many of these cases involve some form of plea agreement. Some
commentators on early Commission guideline drafts urged the Commission
not to attempt any major reforms of the plea agreement process on the
grounds that any set of guidelines that threatened to change pre-
guidelines practice radically also threatened to make the federal
system unmanageable. Others argued that guidelines that failed to
control and limit plea agreements would leave untouched a `loophole'
large enough to undo the good that sentencing guidelines would bring.
The Commission decided not to make major changes in plea agreement
practices in the initial guidelines, but rather to provide guidance by
issuing general policy statements concerning the acceptance of plea
agreements in Chapter Six, Part B (Plea Agreements). The rules set
forth in Fed. R. Crim. P. 11(e) govern the acceptance or rejection of
such agreements. The Commission will collect data on the courts' plea
practices and will analyze this information to determine when and why
the courts accept or reject plea agreements and whether plea agreement
practices are undermining the intent of the Sentencing Reform Act. In
light of this information and analysis, the Commission will seek to
further regulate the plea agreement process as appropriate.
Importantly, if the policy statements relating to plea agreements are
followed, circumvention of the Sentencing Reform Act and the guidelines
should not occur.
The Commission expects the guidelines to have a positive,
rationalizing impact upon plea agreements for two reasons. First, the
guidelines create a clear, definite expectation in respect to the
sentence that a court will impose if a trial takes place. In the event
a prosecutor and defense attorney explore the possibility of a
negotiated plea, they will no longer work in the dark. This fact alone
should help to reduce irrationality in respect to actual sentencing
outcomes. Second, the guidelines create a norm to which courts will
likely refer when they decide whether, under Rule 11(e), to accept or
to reject a plea agreement or recommendation.
(d) Probation and Split Sentences
The statute provides that the guidelines are to `reflect the
general appropriateness of imposing a sentence other than imprisonment
in cases in which the defendant is a first offender who has not been
convicted of a crime of violence or an otherwise serious offense . . .
.' 28 U.S.C. 994(j). Under pre-guidelines sentencing practice, courts
sentenced to probation an inappropriately high percentage of offenders
guilty of certain economic crimes, such as theft, tax evasion,
antitrust offenses, insider trading, fraud, and embezzlement, that in
the Commission's view are `serious.'
The Commission's solution to this problem has been to write
guidelines that classify as serious many offenses for which probation
previously was frequently given and provide for at least a short period
of imprisonment in such cases. The Commission concluded that the
definite prospect of prison, even though the term may be short, will
serve as a significant deterrent, particularly when compared with pre-
guidelines practice where probation, not prison, was the norm.
More specifically, the guidelines work as follows in respect to a
first offender. For offense levels one through eight, the sentencing
court may elect to sentence the offender to probation (with or without
confinement conditions) or to a prison term. For offense levels nine
and ten, the court may substitute probation for a prison term, but the
probation must include confinement conditions (community confinement,
intermittent confinement, or home detention). For offense levels eleven
and twelve, the court must impose at least one-half the minimum
confinement sentence in the form of prison confinement, the remainder
to be served on supervised release with a condition of community
confinement or home detention.* The Commission, of course, has not
dealt with the single acts of aberrant behavior that still may justify
probation at higher offense levels through departures.**
* Note: The Commission expanded Zones B and C of the Sentencing
Table in 2010 to provide a greater range of sentencing options to
courts with respect to certain offenders. (See USSG App. C,
amendment 738.) In 2018, the Commission added a new application note
to the Commentary to Sec. 5C1.1 (Imposition of a Term of
Imprisonment), stating that if a defendant is a `nonviolent first
offender and the applicable guideline range is in Zone A or B of the
Sentencing Table, the court should consider imposing a sentence
other than a sentence of imprisonment.' (See USSG App. C, amendment
801.) In 2023, the Commission added a new Chapter Four guideline, at
Sec. 4C1.1 (Adjustment for Certain Zero-Point Offenders), providing
a decrease of 2 levels from the offense level determined under
Chapters Two and Three for `zero-point' offenders who meet certain
criteria. In addition, the Commission further amended the Commentary
to Sec. 5C1.1 to address the alternatives to incarceration
available to `zero-point' offenders by revising the application note
in Sec. 5C1.1 that addressed `nonviolent first offenders' to focus
on `zero-point' offenders. (See USSG App. C, amendment 821.)
**Note: Although the Commission had not addressed `single acts
of aberrant behavior' at the time the Introduction to the Guidelines
Manual originally was written, it subsequently addressed the issue
in Amendment 603, effective November 1, 2000. (See USSG App. C,
amendment 603.)
(e) Multi-Count Convictions
The Commission, like several state sentencing commissions, has
found it particularly difficult to develop guidelines for sentencing
defendants convicted of multiple violations of law, each of which makes
up a separate count in an indictment. The difficulty is that when a
defendant engages in conduct that causes several harms, each additional
harm, even if it increases the extent to which punishment is warranted,
does not necessarily warrant a proportionate increase in punishment. A
defendant who assaults others during a fight, for example, may warrant
more punishment if he injures ten people than if he injures one, but
his conduct does not necessarily warrant ten times the punishment. If
it did, many of the simplest offenses, for reasons that are often
fortuitous, would lead to sentences of life imprisonment--sentences
that neither just deserts nor crime control theories of punishment
would justify.
Several individual guidelines provide special instructions for
increasing punishment when the conduct that is the subject of that
count involves multiple occurrences or has caused several harms. The
guidelines also provide general rules for aggravating punishment in
light of multiple harms charged separately in separate counts. These
rules may produce occasional anomalies, but normally they will permit
an appropriate degree of aggravation of punishment for multiple
offenses that are the subjects of separate counts.
These rules are set out in Chapter Three, Part D (Multiple Counts).
They essentially provide: (1) when the conduct involves fungible items
(e.g., separate drug transactions or thefts of money), the amounts are
added and the guidelines apply to the total amount; (2) when
nonfungible harms are involved, the offense level for the most serious
count is increased (according to a diminishing scale) to reflect the
existence of other counts of conviction. The guidelines have been
written in order to minimize the possibility that an arbitrary casting
of a single transaction
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into several counts will produce a longer sentence. In addition, the
sentencing court will have adequate power to prevent such a result
through departures.
(f) Regulatory Offenses
Regulatory statutes, though primarily civil in nature, sometimes
contain criminal provisions in respect to particularly harmful
activity. Such criminal provisions often describe not only substantive
offenses, but also more technical, administratively-related offenses
such as failure to keep accurate records or to provide requested
information. These statutes pose two problems: first, which criminal
regulatory provisions should the Commission initially consider, and
second, how should it treat technical or administratively-related
criminal violations?
In respect to the first problem, the Commission found that it could
not comprehensively treat all regulatory violations in the initial set
of guidelines. There are hundreds of such provisions scattered
throughout the United States Code. To find all potential violations
would involve examination of each individual federal regulation.
Because of this practical difficulty, the Commission sought to
determine, with the assistance of the Department of Justice and several
regulatory agencies, which criminal regulatory offenses were
particularly important in light of the need for enforcement of the
general regulatory scheme. The Commission addressed these offenses in
the initial guidelines.
In respect to the second problem, the Commission has developed a
system for treating technical recordkeeping and reporting offenses that
divides them into four categories. First, in the simplest of cases, the
offender may have failed to fill out a form intentionally, but without
knowledge or intent that substantive harm would likely follow. He might
fail, for example, to keep an accurate record of toxic substance
transport, but that failure may not lead, nor be likely to lead, to the
release or improper handling of any toxic substance. Second, the same
failure may be accompanied by a significant likelihood that substantive
harm will occur; it may make a release of a toxic substance more
likely. Third, the same failure may have led to substantive harm.
Fourth, the failure may represent an effort to conceal a substantive
harm that has occurred.
The structure of a typical guideline for a regulatory offense
provides a low base offense level (e.g., 6) aimed at the first type of
recordkeeping or reporting offense. Specific offense characteristics
designed to reflect substantive harms that do occur in respect to some
regulatory offenses, or that are likely to occur, increase the offense
level. A specific offense characteristic also provides that a
recordkeeping or reporting offense that conceals a substantive offense
will have the same offense level as the substantive offense.
(g) Sentencing Ranges
In determining the appropriate sentencing ranges for each offense,
the Commission estimated the average sentences served within each
category under the pre-guidelines sentencing system. It also examined
the sentences specified in federal statutes, in the parole guidelines,
and in other relevant, analogous sources. The Commission's
Supplementary Report on the Initial Sentencing Guidelines (1987)
contains a comparison between estimates of pre-guidelines sentencing
practice and sentences under the guidelines.
While the Commission has not considered itself bound by pre-
guidelines sentencing practice, it has not attempted to develop an
entirely new system of sentencing on the basis of theory alone.
Guideline sentences, in many instances, will approximate average pre-
guidelines practice and adherence to the guidelines will help to
eliminate wide disparity. For example, where a high percentage of
persons received probation under pre-guidelines practice, a guideline
may include one or more specific offense characteristics in an effort
to distinguish those types of defendants who received probation from
those who received more severe sentences. In some instances, short
sentences of incarceration for all offenders in a category have been
substituted for a pre-guidelines sentencing practice of very wide
variability in which some defendants received probation while others
received several years in prison for the same offense. Moreover,
inasmuch as those who pleaded guilty under pre-guidelines practice
often received lesser sentences, the guidelines permit the court to
impose lesser sentences on those defendants who accept responsibility
for their misconduct. For defendants who provide substantial assistance
to the government in the investigation or prosecution of others, a
downward departure may be warranted.
The Commission has also examined its sentencing ranges in light of
their likely impact upon prison population. Specific legislation, such
as the Anti-Drug Abuse Act of 1986 and the career offender provisions
of the Sentencing Reform Act of 1984 (28 U.S.C. 994(h)), required the
Commission to promulgate guidelines that will lead to substantial
prison population increases. These increases will occur irrespective of
the guidelines. The guidelines themselves, insofar as they reflect
policy decisions made by the Commission (rather than legislated
mandatory minimum or career offender sentences), are projected to lead
to an increase in prison population that computer models, produced by
the Commission and the Bureau of Prisons in 1987, estimated at
approximately 10 percent over a period of ten years.
(h) The Sentencing Table
The Commission has established a sentencing table that for
technical and practical reasons contains 43 levels. Each level in the
table prescribes ranges that overlap with the ranges in the preceding
and succeeding levels. By overlapping the ranges, the table should
discourage unnecessary litigation. Both prosecution and defense will
realize that the difference between one level and another will not
necessarily make a difference in the sentence that the court imposes.
Thus, little purpose will be served in protracted litigation trying to
determine, for example, whether $10,000 or $11,000 was obtained as a
result of a fraud. At the same time, the levels work to increase a
sentence proportionately. A change of six levels roughly doubles the
sentence irrespective of the level at which one starts. The guidelines,
in keeping with the statutory requirement that the maximum of any range
cannot exceed the minimum by more than the greater of 25 percent or six
months (28 U.S.C. 994(b)(2)), permit courts to exercise the greatest
permissible range of sentencing discretion. The table overlaps offense
levels meaningfully, works proportionately, and at the same time
preserves the maximum degree of allowable discretion for the court
within each level.
Similarly, many of the individual guidelines refer to tables that
correlate amounts of money with offense levels. These tables often have
many rather than a few levels. Again, the reason is to minimize the
likelihood of unnecessary litigation. If a money table were to make
only a few distinctions, each distinction would become more important
and litigation over which category an offender fell within would become
more likely. Where a table has many small monetary distinctions, it
minimizes the likelihood of litigation because the precise amount of
money involved is of considerably less importance.
[[Page 154]]
5. A Concluding Note
The Commission emphasizes that it drafted the initial guidelines
with considerable caution. It examined the many hundreds of criminal
statutes in the United States Code. It began with those that were the
basis for a significant number of prosecutions and sought to place them
in a rational order. It developed additional distinctions relevant to
the application of these provisions and it applied sentencing ranges to
each resulting category. In doing so, it relied upon pre-guidelines
sentencing practice as revealed by its own statistical analyses based
on summary reports of some 40,000 convictions, a sample of 10,000
augmented presentence reports, the parole guidelines, and policy
judgments.
The Commission recognizes that some will
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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.