Notice2025-07785
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
May 9, 2025
Effective
November 1, 2025
Issuing agencies
United States Sentencing Commission
Abstract
The United States Sentencing Commission hereby gives notice that the Commission has promulgated amendments to the sentencing guidelines, policy statements, and commentary; and the Commission requests comment regarding whether it should include in the Guidelines Manual as changes that may be applied retroactively to previously sentenced defendants any or all of the following amendments: Parts A and B of Amendment 1; and Subparts 1 and 2 of Part A of Amendment 2. This notice sets forth the text of the amendments and the reason for each amendment, and the request for comment regarding possible retroactive application of the amendments listed above.
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<title>Federal Register, Volume 90 Issue 89 (Friday, May 9, 2025)</title>
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[Federal Register Volume 90, Number 89 (Friday, May 9, 2025)]
[Notices]
[Pages 19798-19856]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-07785]
[[Page 19797]]
Vol. 90
Friday,
No. 89
May 9, 2025
Part II
United States Sentencing Commission
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Sentencing Guidelines for United States Courts; Notice
Federal Register / Vol. 90 , No. 89 / Friday, May 9, 2025 / Notices
[[Page 19798]]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of submission to Congress of amendments to the
sentencing guidelines effective November 1, 2025, and request for
comment.
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SUMMARY: The United States Sentencing Commission hereby gives notice
that the Commission has promulgated amendments to the sentencing
guidelines, policy statements, and commentary; and the Commission
requests comment regarding whether it should include in the Guidelines
Manual as changes that may be applied retroactively to previously
sentenced defendants any or all of the following amendments: Parts A
and B of Amendment 1; and Subparts 1 and 2 of Part A of Amendment 2.
This notice sets forth the text of the amendments and the reason for
each amendment, and the request for comment regarding possible
retroactive application of the amendments listed above.
DATES:
Effective Date of Amendments. The Commission has specified an
effective date of November 1, 2025, for the amendments set forth in
this notice.
Written Public Comment. Written public comment regarding possible
retroactive application of Parts A and B of Amendment 1, and Subparts 1
and 2 of Part A of Amendment 2, should be received by the Commission
not later than June 2, 2025. Any public comment received after the
close of the comment period may not be considered.
ADDRESSES: There are two methods for submitting written public comment.
Electronic Submission of Comments. Comments may be submitted
electronically via the Commission's Public Comment Submission Portal at
<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--Issue for Comment on Retroactivity.
FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs
Specialist, (202) 502-4597.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day of May each
year pursuant to 28 U.S.C. 994(p). Absent action of the Congress to the
contrary, submitted amendments become effective by operation of law on
the date specified by the Commission (generally November 1 of the year
in which the amendments are submitted to Congress).
(1) Amendments to the Sentencing Guidelines, Policy Statements, and
Official Commentary
Pursuant to its authority under 28 U.S.C. 994(p), the Commission
has promulgated amendments to the sentencing guidelines, policy
statements, and commentary. Notices of proposed amendments were
published in the Federal Register on January 2, 2025 (see 90 FR 128)
and February 4, 2025 (see 90 FR 8968). The Commission held public
hearings on the proposed amendments in Washington, DC, on February 12,
2025, and March 12-13, 2025. On April 30, 2025, the Commission
submitted the promulgated amendments to the Congress and specified an
effective date of November 1, 2025.
The text of the amendments to the sentencing guidelines, policy
statements, and commentary, and the reason for each amendment, is set
forth below. Additional information pertaining to the amendments
described in this notice may be accessed through the Commission's
website at <a href="http://www.ussc.gov">www.ussc.gov</a>.
(2) Request for Comment on Possible Retroactive Application of Parts A
and B of Amendment 1, and Subparts 1 and 2 of Part A of Amendment 2
This notice sets forth a request for comment regarding whether the
Commission should list in subsection (d) of Sec. 1B1.10 (Reduction in
Term of Imprisonment as a Result of Amended Guideline Range (Policy
Statement)) as an amendment that may be applied retroactively to
previously sentenced defendants any or all of the following subparts or
parts of these amendments: Part A (Circuit Conflict Relating to
``Physically Restrained'' Enhancements) and Part B (Circuit Conflict
Relating to the Meaning of ``Intervening Arrest'' in Sec. 4A1.2(a)(2))
of Amendment 1, and Subpart 1 (Mitigating Role Provisions at Sec.
2D1.1(a)(5)) and Subpart 2 (Special Instruction Relating to Sec.
3B1.2) of Part A of Amendment 2.
The Background Commentary to Sec. 1B1.10 lists the purpose of the
amendment, the magnitude of the change in the guideline range made by
the amendment, and the difficulty of applying the amendment
retroactively to determine an amended guideline range under Sec.
1B1.10(b) as among the factors the Commission considers in selecting
the amendments included in Sec. 1B1.10(d). To the extent practicable,
public comment should address each of these factors.
Authority: 28 U.S.C. 994(a), (o), (p), and (u); USSC Rules of
Practice and Procedure 2.2, 4.1, and 4.1A.
Carlton W. Reeves,
Chair.
(1) Amendments to the Sentencing Guidelines, Policy Statements, and
Official Commentary
1. Amendment
Part A (Circuit Conflict Concerning ``Physically Restrained''
Enhancements)
Section 2B3.1(b)(2)(B) is amended by striking ``if a firearm was
otherwise used'' and inserting ``if a firearm was used to convey a
specific (not general) threat of harm (e.g., pointing the firearm at a
specific victim or victims; directing the movement of a specific victim
or victims with the firearm) or to make physical contact with a victim
(e.g., pistol whip; firearm placed against victim's body)''.
Section 2B3.1(b)(4)(B) is amended by striking ``if any person was
physically restrained'' and inserting ``if any person's freedom of
movement was restricted through physical contact or confinement, such
as by being tied, bound, or locked up,''.
The Commentary to Sec. 2B3.1 captioned ``Application Notes'' is
amended in Note 1 by striking '' `abducted,' and `physically
restrained' are defined'' and inserting ``and `abducted' have the
meaning given such terms''.
The Commentary to Sec. 2B3.1 captioned ``Background'' is amended
by striking ``was physically restrained by being tied, bound, or lock
up'' and inserting ``a victim's freedom of movement was restricted
through physical contact or confinement, such as by being tied, bound,
or locked up''.
Section 2B3.2(b)(3)(A)(ii) is amended by striking ``if a firearm
was otherwise used'' and inserting ``if a firearm was used to convey a
specific (not general) threat of harm (e.g., pointing the firearm at a
specific victim or victims; directing
[[Page 19799]]
the movement of a specific victim or victims with the firearm) or to
make physical contact with a victim (e.g., pistol whip; firearm placed
against victim's body)''.
Section 2B3.2(b)(5)(B) is amended by striking ``if any person was
physically restrained'' and inserting ``if any person's freedom of
movement was restricted through physical contact or confinement, such
as by being tied, bound, or locked up,''.
The Commentary to Sec. 2B3.2 captioned ``Application Notes'' is
amended in Note 1 by striking '' `physically restrained,' ''.
Section 2E2.1(b)(1)(B) is amended by striking ``if a dangerous
weapon (including a firearm) was otherwise used'' and inserting ``if a
dangerous weapon (including a firearm) was used to convey a specific
(not general) threat of harm (e.g., pointing the weapon at a specific
victim or victims; directing the movement of a specific victim or
victims with the weapon) or to make physical contact with a victim
(e.g., pistol whip; weapon placed against victim's body)''.
Section 2E2.1(b)(3)(B) is amended by striking ``if any person was
physically restrained'' and inserting ``if any person's freedom of
movement was restricted through physical contact or confinement, such
as by being tied, bound, or locked up,''.
The Commentary to Sec. 2E2.1 captioned ``Application Notes'' is
amended in Note 1 by striking `` `otherwise used,' ''; and by striking
`` `abducted,' and `physically restrained' '' and inserting ``and
`abducted' ''.
The Commentary to Sec. 2X1.1 captioned ``Application Notes'' is
amended in Note 2 by striking ``the defendants actually intended to
physically restrain the teller, the specific offense characteristic for
physical restraint would be added'' and inserting ``the defendants
actually intended to restrict the teller's freedom of movement through
physical contact or confinement, the specific offense characteristic
for such restriction would be added''.
Part B (Circuit Conflict Concerning Meaning of ``Intervening Arrest''
in Sec. 4A1.2(a)(2))
Section 4A1.2(a)(2) is amended in the paragraph that begins ``If
the defendant'' by inserting after ``the second offense).'' the
following: ``For purposes of this provision, a traffic stop is not an
intervening arrest.''.
Reason for Amendment: This two-part amendment addresses circuit
conflicts involving Sec. 2B3.1 (Robbery) and Sec. 4A1.2 (Definitions
and Instructions for Computing Criminal History).
Part A--Circuit Conflict Concerning ``Physically Restrained''
Enhancements
Part A of the amendment responds to a circuit conflict over whether
Sec. 2B3.1(b)(4)(B)--which provides for a 2-level increase ``if any
person was physically restrained to facilitate commission of the
offense or to facilitate escape''--applies where a robbery victim is
restricted from moving at gunpoint but is not otherwise immobilized
through measures like those in the definition of ``physically
restrained'' in Application Note 1 to Sec. 1B1.1 (Application
Instructions) (i.e., ``by being tied, bound, or locked up'').
The Second, Third, Fifth, Seventh, and Ninth Circuits have largely
agreed that the psychological coercion of pointing a gun at a victim,
without more, does not qualify, and that a restraint must be
``physical'' for the enhancement to apply. See, e.g., United States v.
Anglin, 169 F.3d 154, 164 (2d Cir. 1999); United States v. Bell, 947
F.3d 49, 57 (3d Cir. 2020); United States v. Garcia, 857 F.3d 708, 713-
14 (5thCir. 2017); United States v. Herman, 930 F.3d 872, 877 (7thCir.
2019); United States v. Parker, 241 F.3d 1114, 1118-19 (9th Cir. 2001).
By contrast, the First, Fourth, Sixth, Tenth, and Eleventh Circuits
have held that restricting a victim's movement at gunpoint suffices for
the enhancement. See, e.g., United States v. Wallace, 461 F.3d 15, 34-
35 (1st Cir. 2006); United States v. Dimache, 665 F.3d 603, 608 (4th
Cir. 2011); United States v. Howell, 17F.4th 673, 692 (6th Cir. 2021);
United States v. Miera, 539 F.3d 1232, 1235-36 (10th Cir. 2008); United
States v. Deleon, 116 F.4th 1260, 1264 (11th Cir. 2024).
The Commission received public comment and testimony indicating
that the conduct at issue in the circuit split (pointing a gun at a
victim during a robbery) is treated differently not only under Sec.
2B3.1(b)(4)(B) but also under the separate Sec. 2B3.1(b)(2)
enhancement. Section 2B3.1(b)(2) provides for tiered offense level
increases for threats and weapon involvement in a robbery, including a
5-level enhancement ``if a firearm was brandished or possessed'' and a
6-level enhancement ``if a firearm was otherwise used.'' The terms
``brandished'' and ``otherwise used'' are defined in Application Note 1
to Sec. 1B1.1.
Circuits that have considered the difference between these
definitions generally agree that while ``brandished'' covers the
general display of a weapon, a firearm is ``otherwise used'' where it
is employed for a specific threat. See, e.g., United States v. Jordan,
945 F.3d 245, 264 (5th Cir. 2019) (``While brandishing `can mean as
little as displaying part of a firearm or making the presence of the
firearm known in order to intimidate,' otherwise using a weapon
includes pointing the weapon at an individual in a specifically
threatening manner.'' (citation omitted)); United States v. Johnson,
803 F.3d 610, 616 (11th Cir. 2015) (``[T]he `otherwise use[ ]' of a
firearm includes the use of the firearm to make an explicit or implicit
threat against a specific person.'').
Commission data shows, however, that pointing a gun at a victim
during a robbery has resulted in the 5-level ``brandished'' increase in
some cases and the 6-level ``otherwise used'' increase in others. The
combination of these differing applications of the firearms enhancement
and the conflict among the circuits regarding the 2-level ``physically
restrained'' enhancement has led to disparities: the total resulting
enhancements have ranged from five to eight levels for pointing a gun
at a victim during a robbery.
To promote uniformity and consistency in guideline application,
Part A of the amendment generally adopts the approach of the Second,
Third, Fifth, Seventh, and Ninth Circuits that Sec. 2B3.1(b)(4)(B)
does not apply solely based on the coercion of using a firearm to
restrict a victim's movement. Rather, the increase applies only ``if
any person's freedom of movement was restricted through physical
contact or confinement, such as by being tied, bound, or locked up, to
facilitate commission of the offense or to facilitate escape.''
Part A of the amendment also revises Sec. 2B3.1(b)(2) to ensure
that use of a firearm during a robbery is accounted for under this
enhancement with more uniformity. It amends Sec. 2B3.1(b)(2)(B) to
state that the 6-level increase applies ``if a firearm was used to
convey a specific (not general) threat of harm (e.g., pointing the
firearm at a specific victim or victims; directing the movement of a
specific victim or victims with the firearm) or to make physical
contact with a victim (e.g., pistol whip; firearm placed against
victim's body).''
To further promote consistency in application of offense guidelines
with similar specific offense characteristics, the amendment makes
parallel changes to two Chapter Two guidelines with ``physically
restrained'' and ``otherwise used'' enhancements: Sec. Sec. 2B3.2
(Extortion by Force or Threat of Injury or Serious Damage) and 2E2.1
(Making or Financing an Extortionate Extension of Credit; Collecting an
Extension of
[[Page 19800]]
Credit by Extortionate Means). The amendment does not make parallel
changes to Sec. 3A1.3 (Restraint of Victim), which also uses the term
``physically restrained'' but differs from Sec. 2B3.1(b)(4)(B) in
other respects. No inferences as to the scope of that Chapter Three
adjustment should be drawn from this amendment.
Part B--Circuit Conflict Concerning Meaning of ``Intervening Arrest''
in Sec. 4A1.2(a)(2)
Part B of the amendment addresses a circuit conflict over whether a
traffic stop is an ``intervening arrest'' for purposes of determining
whether multiple prior sentences should be ``counted separately or
treated as a single sentence'' when assigning criminal history points
(``single-sentence rule'') under Sec. 4A1.2(a)(2).
The Third, Sixth, Ninth, and Eleventh Circuits have held that a
formal, custodial arrest is required, and that a citation or summons
following a traffic stop does not qualify. See United States v. Ley,
876 F.3d 103, 109 (3d Cir. 2017); United States v. Rogers, 86 F.4th
259, 264-65 (6th Cir. 2023); United States v. Leal-Felix, 665 F.3d
1037, 1041-42 (9th Cir. 2011) (en banc); United States v. Wright, 862
F.3d 1265, 1282 (11th Cir. 2017). By contrast, the Seventh Circuit has
adopted a broad view of the term, holding that a traffic stop amounts
to an intervening arrest. See United States v. Morgan, 354 F.3d 621,
624 (7th Cir. 2003).
After reviewing public comment and testimony, the Commission
determined that a traffic stop should not be considered an
``intervening arrest'' for purposes of the single-sentence rule. The
amendment revises Sec. 4A1.2(a)(2) to include that clarification.
2. Amendment
Part A (Application of Mitigating Role Adjustment in Drug Trafficking
Cases)
Subpart 1 (Mitigating Role Provisions at Sec. 2D1.1(a)(5))
Section 2D1.1(a)(5) is amended by striking ``the offense level
specified in the Drug Quantity Table set forth in subsection (c),
except that if (A) the defendant receives an adjustment under Sec.
3B1.2 (Mitigating Role); and (B) the base offense level under
subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or
level 36, decrease by 3 levels; or (iii) level 38, decrease by 4
levels. If the resulting offense level is greater than level 32 and the
defendant receives the 4-level (`minimal participant') reduction in
Sec. 3B1.2(a), decrease to level 32'' and inserting ``the offense
level specified in the Drug Quantity Table set forth in subsection (c),
except that if (A) the defendant receives an adjustment under Sec.
3B1.2 (Mitigating Role); and (B) the base offense level under
subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34,
decrease by 3 levels; or (iii) above level 34, decrease to level 32. If
the resulting offense level is greater than level 30 and the defendant
receives the 4-level reduction in Sec. 3B1.2(a), decrease to level
30''.
Section 2D1.1(b)(17) is amended by striking ``(`minimal
participant')''.
Subpart 2 (Special Instruction Relating to Sec. 3B1.2)
Section 2D1.1(e) is amended--
in the heading by striking ``Instruction'' and inserting
``Instructions'';
and by inserting at the end the following new paragraph (2):
``(2) Application of Sec. 3B1.2 (Mitigating Role) to Sec. 2D1.1
Cases
(A) Determine whether an adjustment under Sec. 3B1.2 (Mitigating
Role) applies.
(B) In addition to the circumstances identified in Sec. 3B1.2, an
adjustment under Sec. 3B1.2 is generally warranted if the defendant's
primary function in the offense was performing a low-level trafficking
function.
(i) An adjustment under Sec. 3B1.2(a) is generally warranted if
the defendant's primary function in the offense was plainly among the
lowest level of drug trafficking functions, such as serving as a
courier, running errands, sending or receiving phone calls or messages,
or acting as a lookout; or
(ii) an adjustment under Sec. 3B1.2(b) is generally warranted if
the defendant's primary function in the offense was performing another
low-level trafficking function, such as distributing controlled
substances in user-level quantities for little or no monetary
compensation or with a primary motivation other than profit (e.g., the
defendant was otherwise unlikely to commit such an offense and was
motivated by an intimate or familial relationship, or by threats or
fear to commit the offense).
For purposes of subsection (e)(2)(B), the provisions of Sec. 3B1.2
apply in determining whether a mitigating role adjustment is warranted,
except that the adjustment shall apply regardless of whether the
offense involved other participants in addition to the defendant, and
regardless of whether the defendant was substantially less culpable
than the average participant in the criminal activity. The extent of
the adjustment shall be based on the totality of the circumstances and
involves a determination that is heavily dependent upon the facts of
the particular case.
(C) The mitigating role provisions at subsection (a)(5) and the 2-
level reduction at subsection (b)(17) apply regardless of whether the
defendant receives the required adjustment from Sec. 3B1.2 (Mitigating
Role) by direct application of Sec. 3B1.2 or by use of the special
instruction in subsection (e)(2)(B).''.
The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is
amended in Note 3(A) by striking the following:
``A defendant who is accountable under Sec. 1B1.3 (Relevant
Conduct) only for the conduct in which the defendant personally was
involved and who performs a limited function in the criminal activity
may receive an adjustment under this guideline. For example, a
defendant who is convicted of a drug trafficking offense, whose
participation in that offense was limited to transporting or storing
drugs and who is accountable under Sec. 1B1.3 only for the quantity of
drugs the defendant personally transported or stored may receive an
adjustment under this guideline.
Likewise, a defendant who is accountable under Sec. 1B1.3 for a
loss amount under Sec. 2B1.1 (Theft, Property Destruction, and Fraud)
that greatly exceeds the defendant's personal gain from a fraud offense
or who had limited knowledge of the scope of the scheme may receive an
adjustment under this guideline. For example, a defendant in a health
care fraud scheme, whose participation in the scheme was limited to
serving as a nominee owner and who received little personal gain
relative to the loss amount, may receive an adjustment under this
guideline.'';
and inserting the following:
``A defendant who is accountable under Sec. 1B1.3 (Relevant
Conduct) only for the conduct in which the defendant personally was
involved and who performs a limited function in the criminal activity
may receive an adjustment under this guideline. For example, a
defendant who is accountable under Sec. 1B1.3 for a loss amount under
Sec. 2B1.1 (Theft, Property Destruction, and Fraud) that greatly
exceeds the defendant's personal gain from a fraud offense or who had
limited knowledge of the scope of the scheme may receive an adjustment
under this guideline. For example, a defendant in a health care fraud
scheme, whose participation in the scheme was limited to serving as a
nominee owner and who received little personal gain relative to the
loss amount, may receive an adjustment under this guideline.''.
[[Page 19801]]
Part B (Representing or Marketing Fentanyl or a Fentanyl Analogue as a
Legitimately Manufactured Drug)
Section 2D1.1(b)(13)(B) is amended by striking ``and acted with
willful blindness or conscious avoidance of knowledge that such mixture
or substance was not the legitimately manufactured drug'' and inserting
``with reckless disregard that such mixture or substance was not the
legitimately manufactured drug''.
Reason for Amendment: This two-part amendment is the result of
Commission study on the operation of Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy). As part of its study, the Commission considered feedback
from the field, including at a roundtable discussion on drug
sentencing, a public hearing, and public comment. The Commission also
analyzed a range of drug trafficking sentencing data, including data on
sentences imposed at the highest base offense levels, the application
of the ``mitigating role cap'' and mitigating role adjustment,
sentences imposed based on function, and the application of
enhancements in fentanyl and fentanyl analogue cases. The Commission
determined that targeted changes were warranted to ensure appropriate
penalties commensurate with an individual's function in a drug
trafficking offense and to better address the harms of representing or
marketing fentanyl or a fentanyl analogue as a legitimately
manufactured drug.
Part A--Application of Mitigating Role Adjustment in Drug Trafficking
Cases
Part A of the amendment contains two subparts to address concerns
that Sec. 2D1.1 and Sec. 3B1.2 (Mitigating Role) as they currently
apply in tandem do not adequately account for the lower culpability of
individuals performing low-level functions in a drug trafficking
offense.
Subpart 1 (Mitigating Role Provisions at Sec. 2D1.1(a)(5))
Subpart 1 of Part A amends the mitigating role provisions in Sec.
2D1.1(a)(5) to refine the drug trafficking guideline in cases where an
individual receives an adjustment under Sec. 3B1.2. The Commission
initially added the mitigating role cap to ``somewhat limit[ ] the
sentencing impact of drug quantity for offenders who perform relatively
low level trafficking functions.'' USSG App. C, amend. 640 (effective
Nov. 1, 2002). As previously amended, Sec. 2D1.1(a)(5) provided a
graduated 2-, 3-, or 4-level decrease, depending on the base offense
level under Sec. 2D1.1(c), when a defendant received a mitigating role
adjustment under Sec. 3B1.2. USSG App. C, amend. 668 (effective Nov.
1, 2004).
This amendment maintains the approach of graduated decreases
depending on the base offense level but amends Sec. 2D1.1(a)(5) in two
ways. First, it sets a mitigating role cap at level 32 if the defendant
receives an adjustment under Sec. 3B1.2 and has a base offense level
above 34. Second, if the defendant has a resulting offense level
greater than 30 and receives a 4-level adjustment under Sec. 3B1.2(a),
then a mitigating role cap of 30 applies.
As explained further below in Subpart 2, the mitigating role
provisions in Sec. 2D1.1(a)(5) and the 2-level reduction at Sec.
2D1.1(b)(17) apply regardless of whether the defendant receives the
required adjustment from Sec. 3B1.2 by direct application of Sec.
3B1.2 or by use of the new special instruction in Sec. 2D1.1(e)(2)(B).
Thus, the amendment deletes the phrase ``minimal participant'' from
Sec. 2D1.1(a)(5) and Sec. 2D1.1(b)(17) to clarify that those
provisions are triggered regardless of whether a defendant receives a
4-level reduction by direct application of Sec. 3B1.2(a) or by use of
the new special instruction in Sec. 2D1.1(e)(2)(B).
Subpart 2 (Special Instruction Relating to Sec. 3B1.2)
Subpart 2 of Part A adds a new special instruction at Sec.
2D1.1(e) to address the inconsistent application of Sec. 3B1.2 in
Sec. 2D1.1 cases and to encourage broader use of Sec. 3B1.2 in these
cases.
Section 3B1.2 provides a range of reductions depending on the
defendant's role in the criminal activity. Subsection (a) sets forth a
4-level reduction if the defendant was a ``minimal participant in any
criminal activity.'' Subsection (b) sets forth a 2-level reduction if
the defendant was ``a minor participant in any criminal activity.''
Section 3B1.2 also provides for a 3-level reduction where the case
``fall[s] between (a) and (b).''
The Commission previously amended the Commentary to Sec. 3B1.2 to
increase its usage (see, e.g., USSG App. C, amend. 794 (effective Nov.
1, 2015)). However, Commission data shows that the prior amendment did
not result in a sustained increase in application of the mitigating
role adjustment in Sec. 2D1.1 cases. Commission data show that when
Sec. 3B1.2 is applied in Sec. 2D1.1 cases, the vast majority of these
cases receive only a 2-level reduction; 3- and 4-level reductions are
rarely applied. Furthermore, Commission data shows variations across
districts in application of Sec. 3B1.2 to Sec. 2D1.1 cases. The new
special instruction at Sec. 2D1.1(e) addresses the application of
Sec. 3B1.2 to Sec. 2D1.1 cases as follows.
The amendment expands the circumstances in which an adjustment
under Sec. 3B1.2 is warranted in Sec. 2D1.1 cases by instructing
courts that an adjustment is generally warranted if the defendant's
``primary function'' in the offense was performing a low-level
trafficking function. Section 2D1.1(e)(2)(A) directs the court to
determine whether an adjustment under Sec. 3B1.2 applies as a court
already does under the Guidelines Manual. Section 2D1.1(e)(2)(B) then
provides that, in addition to the circumstances identified in Sec.
3B1.2, an adjustment under Sec. 3B1.2 is generally warranted if the
defendant's primary function in the offense was performing a low-level
trafficking function. Thus, a defendant sentenced under Sec. 2D1.1 may
qualify for a mitigating role adjustment under Sec. 3B1.2 by direct
application of that adjustment or by use of the special instruction in
Sec. 2D1.1(e)(2)(B).
To ensure courts focus on a defendant's predominant trafficking-
related activities, the Commission selected ``primary function'' to
guide courts in determining whether an adjustment is appropriate. Due
to the wide variety of functions performed by individuals in drug
trafficking offenses, the examples listed in Sec. 2D1.1(e)(2)(B) are
illustrative rather than a definitive list.
To assist courts in determining the appropriate level of reduction,
the amendment provides examples of functions generally warranting an
adjustment under Sec. 3B1.2(a) and (b). Section 2D1.1(e)(2)(B)(i)
states that a four-level adjustment under Sec. 3B1.2(a) is generally
warranted if the defendant's primary function in the offense was
plainly among the lowest level of drug trafficking functions. It lists
as examples serving as a courier, running errands, sending or receiving
phone calls or messages, or acting as a lookout. Section
2D1.1(e)(2)(B)(ii) states that a two-level adjustment under Sec.
3B1.2(b) is generally warranted if the defendant's primary function in
the offense was another low-level trafficking function. It lists as
examples distributing controlled substances in user-level quantities
for little or no monetary compensation or with a primary motivation
other than profit (e.g., the defendant was otherwise unlikely to commit
such an offense and was motivated by an intimate or familial
relationship or by threats or fear to commit the offense).
[[Page 19802]]
The amendment places the special instruction in Sec. 2D1.1 instead
of Sec. 3B1.2 to highlight that the rules for determining Sec. 3B1.2
eligibility are different in Sec. 2D1.1 cases. For purposes of the
special instruction at Sec. 2D1.1(e)(2)(B), the provisions of Sec.
3B1.2 apply in determining whether a mitigating role adjustment is
warranted, with two exceptions: the amendment provides that the
adjustment shall apply regardless of whether the offense involved other
participants in addition to the defendant, and also regardless of
whether the defendant was substantially less culpable than the average
participant in the criminal activity. The Commission determined that
these two provisions in the Commentary to Sec. 3B1.2 may discourage a
court from applying a mitigating role adjustment in single-defendant
drug trafficking cases or drug trafficking cases where the defendant
performed a similar low-level function as other participants in the
criminal activity, but an adjustment may nevertheless be appropriate.
Accordingly, the Commission concluded that these provisions shall not
apply in assessing whether a mitigating role adjustment is warranted
based on a defendant's low-level function in a drug trafficking
offense.
The amendment specifies that the mitigating role provisions in
Sec. 2D1.1(a)(5) and the 2-level reduction at Sec. 2D1.1(b)(17) apply
regardless of whether the defendant receives the Sec. 3B1.2 adjustment
by direct application of Sec. 3B1.2 or by use of the special
instruction in Sec. 2D1.1(e)(2)(B). This instruction ensures that any
individual who receives a mitigating role adjustment, regardless of the
mechanism, may also receive the reductions in Sec. 2D1.1(a)(5) and
Sec. 2D1.1(b)(17).
Part B--Representing or Marketing Fentanyl or a Fentanyl Analogue as a
Legitimately Manufactured Drug
Part B of the amendment changes the mens rea requirement in Sec.
2D1.1(b)(13)(B). In light of the continuing danger associated with the
misrepresentation of fake prescription pills containing fentanyl or a
fentanyl analogue, the Commission addressed concerns that the mens rea
requirement was vague and difficult to apply.
Section 2D1.1(b)(13)(A) provides a 4-level increase when the
defendant knowingly misrepresented or knowingly marketed as another
substance a mixture or substance containing fentanyl or a fentanyl
analogue. The Commission added this specific offense characteristic in
2018 in response to rising numbers of fentanyl and fentanyl analogue
cases. See USSG, App. C. amend. 807 (effective Nov. 1, 2018). In 2023,
the Commission added an alternative 2-level enhancement at Sec.
2D1.1(b)(13)(B) for offenses where the defendant represented or
marketed as a legitimately manufactured drug another mixture or
substance containing fentanyl or a fentanyl analogue, and acted with
willful blindness or conscious avoidance of knowledge that such mixture
or substance was not the legitimately manufactured drug. The Commission
added this specific offense characteristic based on the continued
increase in fentanyl and fentanyl analogue distribution and data
showing that most fake prescription pills seized containing fentanyl
had a potentially lethal dose of the substance. See USSG, App. C.
amend. 818 (effective Nov. 1, 2023).
The Commission received comment that Sec. 2D1.1(b)(13)(B) is being
applied inconsistently, in part, because the current mens rea
requirement has generated confusion. In particular, commenters have
urged the Commission to revise Sec. 2D1.1(b)(13)(B) because the mental
state of ``willful blindness or conscious avoidance of knowledge'' is
vague, and cases construe willful blindness as legally equivalent to
knowledge, causing uncertainty over when the enhancement should be
applied. The Commission further heard concerns about the continuing
dangers associated with representing or marketing fentanyl or a
fentanyl analogue as a legitimately manufactured drug.
Informed by those concerns, the amendment changes the mens rea
requirement in Sec. 2D1.1(b)(13)(B) from ``willful blindness or
conscious avoidance of knowledge'' to ``reckless disregard.''
3. Amendment: Section 2K2.1(b) is amended--
in paragraph (3)(B) by striking ``subdivision'' and inserting
``paragraph'';
by redesignating paragraphs (5) through (9) as paragraphs (6)
through (10), respectively;
by inserting after paragraph (4) the following new paragraph (5):
``(5) (Apply the Greatest) If the defendant--
(A)(i) possessed four or more machinegun conversion devices; or
(ii) transferred or sold any machinegun conversion device to another
person, or attempted or conspired to commit such a transfer or sale,
increase by 2 levels; or
(B) possessed 30 or more machinegun conversion devices, increase by
4 levels.
For purposes of subsection (b)(5), `machinegun conversion device'
means any part designed and intended solely and exclusively, or
combination of parts designed and intended, for use in converting a
weapon into a machinegun (i.e., any weapon which shoots, is designed to
shoot, or can be readily restored to shoot, automatically more than one
shot, without manual reloading, by a single function of the
trigger).'';
in the paragraph that begins ``The cumulative offense level'' by
striking ``(b)(4)'' and inserting ``(b)(5)'';
in paragraph (6) (as so redesignated), in the subparagraph that
begins ``Provided, however,'' by striking ``(b)(5)(C)(i)(I)'' and
inserting ``(b)(6)(C)(i)(I)'';
in paragraph (9)(A) (as so redesignated) by striking ``(b)(5)'' and
inserting ``(b)(6)'';
and in paragraph (10)(A) (as so redesignated) by striking
``(b)(5)'' and inserting ``(b)(6)''.
The Commentary to Sec. 2K2.1 caption ``Application Notes'' is
amended--
in Note 1, in the paragraph that begins `` `Firearm' has the
meaning'' by inserting after ``18 U.S.C. 921(a)(3)'' the following: ``,
unless otherwise specified'';
in Note 3 by striking ``(b)(5)'' and inserting ``(b)(6)'';
in Note 9 by striking ``Application of Subsection (b)(7).--Under
subsection (b)(7), if a record-keeping offense'' and inserting
``Application of Subsection (b)(8).--Under subsection (b)(8), if a
recordkeeping offense'';
in Note 13--
in the heading by striking ``(b)(5)'' and inserting ``(b)(6)'';
and in subparagraph (C) by striking ``(b)(5)'' and inserting
``(b)(6)''; and by striking ``(b)(6)(B)'' and inserting ``(b)(7)(B)'';
and in Note 14--
in the heading by striking ``(b)(6)(B)'' and inserting
``(b)(7)(B)'';
in subparagraph (A) by striking ``(b)(6)(B)'' and inserting
``(b)(7)(B)'';
in subparagraph (B) by striking ``(b)(6)(B)'' both places it
appears and inserting ``(b)(7)(B)'';
in subparagraph (C) by striking ``(b)(6)(B)'' and inserting
``(b)(7)(B)'';
and in subparagraph (E) by striking ``(b)(6)(B)'' each place it
appears and inserting ``(b)(7)(B)''.
The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is
amended in Note 4(A) in the paragraph that begins ``If the explosive''
by striking ``Sec. 2K2.1(b)(6)(B)'' both places it appears and
inserting ``Sec. 2K2.1(b)(7)(B)''.
Reason for Amendment: This amendment revises Sec. 2K2.1 (Unlawful
[[Page 19803]]
Receipt, Possession, or Transportation of Firearms or Ammunition;
Prohibited Transactions Involving Firearms or Ammunition), the primary
firearms guideline, to more fully account for machinegun conversion
devices (MCDs).
Commonly referred to as ``Glock switches'' and ``auto sears,'' MCDs
are devices designed to convert semi-automatic firearms into fully
automatic weapons. Under the National Firearms Act (NFA), the
definition of ``machinegun'' includes ``any part designed and intended
solely and exclusively, or combination of parts designed and intended,
for use in converting a weapon into a machinegun.'' 26 U.S.C. 5845(b).
An MCD therefore qualifies as a machinegun under federal law, and--as
in the case of other machineguns--federal law generally prohibits the
possession and transfer of such devices, with limited exceptions. See
18 U.S.C. 922(o).
As a technical matter, the definition of ``firearm'' is not uniform
throughout federal law. Because the NFA defines ``firearm'' to include
machineguns--and ``machinegun'' to include MCDs--MCDs qualify as
``firearms'' under the NFA definition at 26 U.S.C. 5845(a). By
contrast, MCDs are not firearms under the definition of that term
provided in the Gun Control Act (GCA), which is limited (as relevant)
to a weapon ``which will or is designed to or may readily be converted
to expel a projectile by the action of an explosive'' and ``the frame
or receiver of any such weapon.'' 18 U.S.C. 921(a)(3).
Prior to this amendment, Sec. 2K2.1 accounted for MCDs solely
through base offense levels. It provided certain enhanced base offense
levels for offenses involving NFA firearms, including MCDs. See USSG
Sec. 2K2.1(a)(1), (3), (4), (5). Although Sec. 2K2.1's base offense
levels specifically incorporated the NFA definition of firearm, the
remainder of Sec. 2K2.1 used the GCA definition. See USSG Sec. 2K2.1,
comment. (n.1). Therefore, MCDs did not trigger the specific offense
characteristics in Sec. 2K2.1. For example, if an individual were
convicted of a firearms offense in which he possessed one semi-
automatic firearm and five MCDs, an enhanced base offense level would
apply because the offense involved a firearm described in 26 U.S.C.
5845(a), see USSG Sec. 2K2.1(a)(1), (3), (4), (5), but there would be
no enhancement under the specific offense characteristic at Sec.
2K2.1(b)(1) for the number of MCDs possessed because MCDs are not
firearms under the GCA definition. See USSG Sec. 2K2.1(b)(1). For the
same reason, if the individual transferred the MCDs to another person,
this conduct would not support a trafficking enhancement under the
specific offense characteristic at Sec. 2K2.1(b)(5) the way the
transfer of a GCA firearm (or ammunition) would. See USSG Sec.
2K2.1(b)(5).
The Commission's amendment responds to concerns by the Department
of Justice and other commenters about the proliferation of MCDs, which
pose a heightened danger to the public because a weapon equipped with
an MCD fires more rapidly and with less control than an identical
weapon without an MCD. Of note, the Department of Justice pointed to a
570% rise in MCD recoveries in 2021 as compared to 2017 and to the
growing involvement of automatic gunfire reported in shootings.
Commission data similarly reflects a recent rise in firearms cases
involving MCDs. In fiscal year 2023, 4.5 percent of cases sentenced
under Sec. 2K2.1 involved an MCD--an increase from one percent of
Sec. 2K2.1 cases in fiscal year 2019. While most cases involving MCDs
in fiscal year 2023 involved a single MCD, more than 18 percent
involved four or more devices. In addition, in more than 25 percent of
Sec. 2K2.1 cases involving MCDs, the sentenced individual transferred
at least one MCD to another person.
To address these concerns and in recognition that MCDs pose
different risks than functional firearms, the amendment establishes a
new tiered specific offense characteristic at Sec. 2K2.1(b)(5) for
cases involving MCDs. New subsection (b)(5)(A) provides a two-level
enhancement when a defendant (i) possessed four or more MCDs or (ii)
transferred or sold an MCD or attempted or conspired to commit such a
transfer or sale. New subsection (b)(5)(B) provides a four-level
enhancement when a defendant possessed 30 or more MCDs. The amendment
includes a definition of ``machinegun conversion device'' consistent
with the NFA's statutory definition at 26 U.S.C. 5845(b). To tailor the
enhancement to the most culpable conduct, the Commission determined
that it should apply only to the acts of the defendant. The Commission
also concluded that the new specific offense characteristic should be
subject to the offense level cap in Sec. 2K2.1. The amendment revises
the cap to provide that the cumulative offense level may not exceed
level 29 after application of subsections (b)(1) through the new
subsection (b)(5), unless subsection (b)(3)(A) applies.
The amendment also includes conforming changes, including to the
Commentary to Sec. 2K2.1 and Sec. 2K2.4 (Use of Firearm, Armor-
Piercing Ammunition, or Explosive During or in Relation to Certain
Crimes), to address the renumbering of the prior Sec. 2K2.1(b)(5)
through (9).
4. Amendment: The Commentary to Sec. 1B1.10 captioned
``Application Notes'' is amended in Note 8(B) by inserting after ``18
U.S.C. 3583(e)(1).'' the following: ``See Sec. 5D1.4 (Modification,
Early Termination, and Extension of Supervised Release (Policy
Statement)).''.
The Commentary to Sec. 4B1.5 captioned ``Application Notes'' is
amended in Note 5 by striking the following:
``Treatment and Monitoring.--
(A) Recommended Maximum Term of Supervised Release.--The statutory
maximum term of supervised release is recommended for offenders
sentenced under this guideline.
(B) Recommended Conditions of Probation and Supervised Release.--
Treatment and monitoring are important tools for supervising offenders
and should be considered as special conditions of any term of probation
or supervised release that is imposed.'';
and by inserting the following:
``Treatment and Monitoring.--Treatment and monitoring are important
tools for supervising offenders and should be considered as special
conditions of any term of probation or supervised release that is
imposed.''.
Section 5B1.3(d)(7) is amended by striking ``, as defined in
Application Note 1 of the Commentary to Sec. 5D1.2 (Term of Supervised
Release)''.
The Commentary to Sec. 5B1.3 captioned ``Application Note'' is
amended--
in the caption by striking ``Note'' and inserting ``Notes'';
and by inserting at the end the following new Note 2:
``2. Application of Subsection (d)(7).--For purposes of subsection
(d)(7):
`Sex offense' means (A) an offense, perpetrated against a minor,
under (i) chapter 109A of title 18, United States Code; (ii) chapter
110 of such title, not including a recordkeeping offense; (iii) chapter
117 of such title, not including transmitting information about a minor
or filing a factual statement about an alien individual; (iv) an
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591;
or (B) an attempt or a conspiracy to commit any offense described in
subparagraphs (A)(i) through (v) of this note. Such term does not
include an offense under 18 U.S.C. 2250 (Failure to register).
`Minor' means (A) an individual who had not attained the age of 18
years; (B) an individual, whether fictitious or not, who a law
enforcement officer
[[Page 19804]]
represented to a participant (i) had not attained the age of 18 years;
and (ii) could be provided for the purposes of engaging in sexually
explicit conduct; or (C) an undercover law enforcement officer who
represented to a participant that the officer had not attained the age
of 18 years.''.
Chapter Five, Part D is amended by inserting at the beginning the
following new Introductory Commentary:
``Introductory Commentary
The Sentencing Reform Act of 1984 requires the court to assess a
wide range of factors `in determining whether to include a term of
supervised release, and, if a term of supervised release is to be
included, in determining the length of the term and the conditions of
supervised release.' 18 U.S.C. 3583(c). These determinations aim to
make the imposition and scope of supervised release `dependent on the
needs of the defendant for supervision.' See S. Rep. No. 225, 98th
Cong., 1st Sess. 124 (1983). In conducting such an individualized
assessment, the court can `assure that [those] who will need post-
release supervision will receive it' while `prevent[ing] probation
system resources from being wasted on supervisory services for
releasees who do not need them.' Id. at 54; see also Johnson v. United
States, 529 U.S. 694, 709 (2000) (`Supervised release departed from the
parole system it replaced by giving district courts the freedom to
provide postrelease supervision for those, and only those, who needed
it . . . . Congress aimed, then, to use the district courts'
discretionary judgment to allocate supervision to those releasees who
needed it most.'). Supervised release `fulfills rehabilitative ends,
distinct from those served by incarceration.' United States v. Johnson,
529 U.S. 53, 59 (2000). Accordingly, a court should consider whether
the defendant needs supervision in order to ease transition into the
community or to provide further rehabilitation and whether supervision
will promote public safety. See 18 U.S.C. 3583(c), 3553(a)(2)(C)); see
also S. Rep. No. 225, 98th Cong., 1st Sess. 124 (1983) (indicating that
a `primary goal of [a term of supervised release] is to ease the
defendant's transition into the community after the service of a long
prison term for a particularly serious offense, or to provide
rehabilitation to a defendant who has spent a fairly short period in
prison for punishment or other purposes but still needs supervision and
training programs after release').''.
Section 5D1.1 is amended--
by striking subsections (a) and (b) as follows:
``(a) The court shall order a term of supervised release to follow
imprisonment--
(1) when required by statute (see 18 U.S.C. 3583(a)); or
(2) except as provided in subsection (c), when a sentence of
imprisonment of more than one year is imposed.
(b) The court may order a term of supervised release to follow
imprisonment in any other case. See 18 U.S.C. 3583(a).'';
and inserting the following new subsections (a) and (b):
``(a) The court shall order a term of supervised release to follow
imprisonment when required by statute (see 18 U.S.C. 3583(a)).
(b) When a term of supervised release is not required by statute,
the court should order a term of supervised release to follow
imprisonment when warranted by an individualized assessment of the need
for supervision.'';
and by inserting at the end the following new subsection (d):
``(d) The court should state in open court the reasons for imposing
or not imposing a term of supervised release. See 18 U.S.C. 3553(c).''.
The Commentary to Sec. 5D1.1 captioned ``Application Notes'' is
amended--
by striking Notes 1, 2, and 3 as follows:
``1. Application of Subsection (a).--Under subsection (a), the
court is required to impose a term of supervised release to follow
imprisonment when supervised release is required by statute or, except
as provided in subsection (c), when a sentence of imprisonment of more
than one year is imposed. The court may depart from this guideline and
not impose a term of supervised release if supervised release is not
required by statute and the court determines, after considering the
factors set forth in Note 3, that supervised release is not necessary.
2. Application of Subsection (b).--Under subsection (b), the court
may impose a term of supervised release to follow a term of
imprisonment in any other case, after considering the factors set forth
in Note 3.
3. Factors to Be Considered.--
(A) Statutory Factors.--In determining whether to impose a term of
supervised release, the court is required by statute to consider, among
other factors:
(i) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(ii) the need to afford adequate deterrence to criminal conduct, to
protect the public from further crimes of the defendant, and to provide
the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner;
(iii) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and
(iv) the need to provide restitution to any victims of the offense.
See 18 U.S.C. 3583(c).
(B) Criminal History.--The court should give particular
consideration to the defendant's criminal history (which is one aspect
of the `history and characteristics of the defendant' in subparagraph
(A)(i), above). In general, the more serious the defendant's criminal
history, the greater the need for supervised release.
(C) Substance Abuse.--In a case in which a defendant sentenced to
imprisonment is an abuser of controlled substances or alcohol, it is
highly recommended that a term of supervised release also be imposed.
See Sec. 5H1.4 (Physical Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling Addiction).
(D) Domestic Violence.--If the defendant is convicted for the first
time of a domestic violence crime as defined in 18 U.S.C. 3561(b), a
term of supervised release is required by statute. See 18 U.S.C.
3583(a). Such a defendant is also required by statute to attend an
approved rehabilitation program, if available within a 50-mile radius
of the legal residence of the defendant. See 18 U.S.C. 3583(d); Sec.
5D1.3(a)(3). In any other case involving domestic violence or stalking
in which the defendant is sentenced to imprisonment, it is highly
recommended that a term of supervised release also be imposed.'';
by redesignating Notes 4 and 5 as Notes 5 and 6, respectively;
by inserting at the beginning the following new Notes 1, 2, 3, and
4:
``1. Individualized Assessment.--The statutory framework of
supervised release aims to `assure that [those] who will need post-
release supervision will receive it' while `prevent[ing] probation
system resources from being wasted on supervisory services for
releasees who do not need them.' See S. Rep. No. 225, 98th Cong., 1st
Sess. 54 (1983). To that end, 18 U.S.C. 3583(c) requires the court to,
`in determining whether to include a term of supervised release, and,
if a term of supervised release is to be included, in determining the
length of the term and the conditions of supervised release,' consider
the following:
(A) the nature and circumstances of the offense and the history and
characteristics of the defendant (18 U.S.C. 3553(a)(1));
[[Page 19805]]
(B) the need to afford adequate deterrence to criminal conduct, to
protect the public from further crimes of the defendant, and to provide
the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner (18
U.S.C. 3553(a)(2)(B)-(D));
(C) the kinds of sentence and the sentencing range established for
the applicable category of offense committed by the applicable category
of defendant as set forth in the guidelines (18 U.S.C. 3553(a)(4));
(D) any pertinent policy statement issued by the Sentencing
Commission (18 U.S.C. 3553(a)(5));
(E) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct (18 U.S.C. 3553(a)(6)); and
(F) the need to provide restitution to any victims of the offense
(18 U.S.C. 3553(a)(7)).
See 18 U.S.C. 3583(c).
2. Criminal History.--The court should give particular
consideration to the defendant's criminal history (which is one aspect
of the `history and characteristics of the defendant' in Application
Note 1(A) above). In general, the more serious the defendant's criminal
history, the greater the need for supervised release.
3. Substance Abuse.--In a case in which a defendant sentenced to
imprisonment is an abuser of controlled substances or alcohol, it is
highly recommended that a term of supervised release also be imposed.
See Sec. 5H1.4 (Physical Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling Addiction).
4. Domestic Violence.--If the defendant is convicted for the first
time of a domestic violence crime as defined in 18 U.S.C. 3561(b), a
term of supervised release is required by statute. See 18 U.S.C.
3583(a). Such a defendant is also required by statute to attend an
approved rehabilitation program, if available within a 50-mile radius
of the legal residence of the defendant. See 18 U.S.C. 3583(d); Sec.
5D1.3(a)(3). In any other case involving domestic violence or stalking
in which the defendant is sentenced to imprisonment, it is highly
recommended that a term of supervised release also be imposed.'';
and by inserting at the end the following new Note 7:
``7. Evidence-Based Recidivism Reduction Programming.--Whether a
defendant's sentence includes a term of supervised release may impact
the application of time credits earned by the defendant under the First
Step Act of 2018, Pub. L. 115-391. The First Step Act of 2018 allows
individuals in custody who successfully complete evidence-based
recidivism reduction programming or productive activities to earn time
credits. See 18 U.S.C. 3632(d)(4)(A). Regarding the application of
those time credits, the First Step Act of 2018 provides: `If the
sentencing court included as a part of the prisoner's sentence a
requirement that the prisoner be placed on a term of supervised release
after imprisonment pursuant to [18 U.S.C. 3583], the Director of the
Bureau of Prisons may transfer the prisoner to begin any such term of
supervised release at an earlier date, not to exceed 12 months, based
on the application of time credits under [18 U.S.C. 3632].' 18 U.S.C.
3624(g)(3).''.
Section 5D1.2 is amended--
by striking subsections (a), (b), and (c) as follows:
``(a) Except as provided in subsections (b) and (c), if a term of
supervised release is ordered, the length of the term shall be:
(1) At least two years but not more than five years for a defendant
convicted of a Class A or B felony. See 18 U.S.C. 3583(b)(1).
(2) At least one year but not more than three years for a defendant
convicted of a Class C or D felony. See 18 U.S.C. 3583(b)(2).
(3) One year for a defendant convicted of a Class E felony or a
Class A misdemeanor. See 18 U.S.C. 3583(b)(3).
(b) Notwithstanding subdivisions (a)(1) through (3), the length of
the term of supervised release shall be not less than the minimum term
of years specified for the offense under subdivisions (a)(1) through
(3) and may be up to life, if the offense is--
(1) any offense listed in 18 U.S.C. 2332b(g)(5)(B), the commission
of which resulted in, or created a foreseeable risk of, death or
serious bodily injury to another person; or
(2) a sex offense.
(Policy Statement) If the instant offense of conviction is a sex
offense, however, the statutory maximum term of supervised release is
recommended.
(c) The term of supervised release imposed shall be not less than
any statutorily required term of supervised release.'';
and by inserting the following new subsections (a) and (b):
``(a) If a term of supervised release is ordered, the court shall
conduct an individualized assessment to determine the length of the
term, which shall not be less than any statutorily required minimum
term. Except as otherwise provided by statute, the maximum term of
supervised release is as follows:
(1) Not more than five years for a defendant convicted of a Class A
or B felony. See 18 U.S.C. 3583(b)(1).
(2) Not more than three years for a defendant convicted of a Class
C or D felony. See 18 U.S.C. 3583(b)(2).
(3) Not more than one year for a defendant convicted of a Class E
felony or a misdemeanor (other than a petty offense). See 18 U.S.C.
3583(b)(3).
(b) The court should state in open court the reasons for the length
of the term imposed. See 18 U.S.C. 3553(c).''.
The Commentary to Sec. 5D1.2 captioned ``Application Notes'' is
amended--
by striking Note 1 as follows:
``1. Definitions.--For purposes of this guideline:
`Sex offense' means (A) an offense, perpetrated against a minor,
under (i) chapter 109A of title 18, United States Code; (ii) chapter
110 of such title, not including a recordkeeping offense; (iii) chapter
117 of such title, not including transmitting information about a minor
or filing a factual statement about an alien individual; (iv) an
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591;
or (B) an attempt or a conspiracy to commit any offense described in
subdivisions (A)(i) through (v) of this note. Such term does not
include an offense under 18 U.S.C. 2250 (Failure to register).
`Minor' means (A) an individual who had not attained the age of 18
years; (B) an individual, whether fictitious or not, who a law
enforcement officer represented to a participant (i) had not attained
the age of 18 years; and (ii) could be provided for the purposes of
engaging in sexually explicit conduct; or (C) an undercover law
enforcement officer who represented to a participant that the officer
had not attained the age of 18 years.'';
by striking Notes 4, 5, and 6 as follows:
``4. Factors Considered.--The factors to be considered in
determining the length of a term of supervised release are the same as
the factors considered in determining whether to impose such a term.
See 18 U.S.C. 3583(c); Application Note 3 to Sec. 5D1.1 (Imposition of
a Term of Supervised Release). The court should ensure that the term
imposed on the defendant is long enough to address the purposes of
imposing supervised release on the defendant.
5. Early Termination and Extension.--The court has authority to
terminate or extend a term of supervised release. See 18 U.S.C.
3583(e)(1), (2). The court is encouraged to exercise this authority in
appropriate cases. The prospect of exercising this authority is a
factor the court may wish to consider in determining the length of a
term of
[[Page 19806]]
supervised release. For example, the court may wish to consider early
termination of supervised release if the defendant is an abuser of
narcotics, other controlled substances, or alcohol who, while on
supervised release, successfully completes a treatment program, thereby
reducing the risk to the public from further crimes of the defendant.
6. Application of Subsection (c).--Subsection (c) specifies how a
statutorily required minimum term of supervised release may affect the
minimum term of supervised release provided by the guidelines.
For example, if subsection (a) provides a range of two years to
five years, but the relevant statute requires a minimum term of
supervised release of three years and a maximum term of life, the term
of supervised release provided by the guidelines is restricted by
subsection (c) to three years to five years. Similarly, if subsection
(a) provides a range of two years to five years, but the relevant
statute requires a minimum term of supervised release of five years and
a maximum term of life, the term of supervised release provided by the
guidelines is five years.
The following example illustrates the interaction of subsections
(a) and (c) when subsection (b) is also involved. In this example,
subsection (a) provides a range of two years to five years; the
relevant statute requires a minimum term of supervised release of five
years and a maximum term of life; and the offense is a sex offense
under subsection (b). The effect of subsection (b) is to raise the
maximum term of supervised release from five years (as provided by
subsection (a)) to life, yielding a range of two years to life. The
term of supervised release provided by the guidelines is then
restricted by subsection (c) to five years to life. In this example, a
term of supervised release of more than five years would be a guideline
sentence. In addition, subsection (b) contains a policy statement
recommending that the maximum--a life term of supervised release--be
imposed.'';
by redesignating Notes 2 and 3 as Notes 4 and 5, respectively;
by inserting at the beginning the following new Notes 1, 2, and 3:
``1. Individualized Assessment.--When conducting an individualized
assessment to determine the length of a term of supervised release, the
factors to be considered are the same as the factors considered in
determining whether to impose such a term. See 18 U.S.C. 3583(c);
Application Note 1 to Sec. 5D1.1 (Imposition of a Term of Supervised
Release). The court should ensure that the term imposed on the
defendant is sufficient, but not greater than necessary, to address the
purposes of imposing supervised release on the defendant.
2. Terrorism and Sex Offenses.--Congress has authorized a term of
supervised release that exceeds the maximum terms described in
subsection (a) for certain serious offenses. See 18 U.S.C. 3583(j),
(k). For certain terrorism offenses, the authorized term of supervised
release is any term of years or life. 18 U.S.C. 3583(j). For certain
sex offenses, the authorized term of supervised release is any term of
years not less than five, or up to life. 18 U.S.C. 3583(k).
3. Drug Offenses.--For certain drug offenses, Congress has
established statutory minimum terms of supervised release. See, e.g.,
21 U.S.C. 841(b), 960(b) (providing minimum terms of supervised release
depending on drug type and quantity and criminal history).'';
in Note 4 (as so redesignated) by striking ``shall be determined''
and inserting ``is determined'';
in Note 5 (as so redesignated) by striking ``or the guidelines'';
and by inserting at the end the following new Note 6:
``6. Early Termination and Extension.--The court has authority to
terminate or extend a term of supervised release. See 18 U.S.C.
3583(e)(1), (2); Sec. 5D1.4 (Modification, Early Termination, and
Extension of Supervised Release (Policy Statement)).''.
The Commentary to Sec. 5D1.2 is amended by striking the Commentary
captioned ``Background'' in its entirety as follows:
``Background: This section specifies the length of a term of
supervised release that is to be imposed. Subsection (c) applies to
statutes, such as the Anti-Drug Abuse Act of 1986, that require
imposition of a specific minimum term of supervised release.''.
Section 5D1.3 is amended--
by striking subsections (b), (c), (d), and (e) as follows:
``(b) Discretionary Conditions
The court may impose other conditions of supervised release to the
extent that such conditions (1) are reasonably related to (A) the
nature and circumstances of the offense and the history and
characteristics of the defendant; (B) the need for the sentence imposed
to afford adequate deterrence to criminal conduct; (C) the need to
protect the public from further crimes of the defendant; and (D) the
need to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner; and (2) involve no greater deprivation of liberty
than is reasonably necessary for the purposes set forth above and are
consistent with any pertinent policy statements issued by the
Sentencing Commission.
(c) `Standard' Conditions (Policy Statement)
The following `standard' conditions are recommended for supervised
release. Several of the conditions are expansions of the conditions
required by statute:
(1) The defendant shall report to the probation office in the
federal judicial district where he or she is authorized to reside
within 72 hours of release from imprisonment, unless the probation
officer instructs the defendant to report to a different probation
office or within a different time frame.
(2) After initially reporting to the probation office, the
defendant will receive instructions from the court or the probation
officer about how and when to report to the probation officer, and the
defendant shall report to the probation officer as instructed.
(3) The defendant shall not knowingly leave the federal judicial
district where he or she is authorized to reside without first getting
permission from the court or the probation officer.
(4) The defendant shall answer truthfully the questions asked by
the probation officer.
(5) The defendant shall live at a place approved by the probation
officer. If the defendant plans to change where he or she lives or
anything about his or her living arrangements (such as the people the
defendant lives with), the defendant shall notify the probation officer
at least 10 days before the change. If notifying the probation officer
at least 10 days in advance is not possible due to unanticipated
circumstances, the defendant shall notify the probation officer within
72 hours of becoming aware of a change or expected change.
(6) The defendant shall allow the probation officer to visit the
defendant at any time at his or her home or elsewhere, and the
defendant shall permit the probation officer to take any items
prohibited by the conditions of the defendant's supervision that he or
she observes in plain view.
(7) The defendant shall work full time (at least 30 hours per week)
at a lawful type of employment, unless the probation officer excuses
the defendant from doing so. If the defendant does not have full-time
employment he or she shall try to find full-time employment, unless the
probation officer excuses the defendant from doing so. If the
[[Page 19807]]
defendant plans to change where the defendant works or anything about
his or her work (such as the position or the job responsibilities), the
defendant shall notify the probation officer at least 10 days before
the change. If notifying the probation officer in advance is not
possible due to unanticipated circumstances, the defendant shall notify
the probation officer within 72 hours of becoming aware of a change or
expected change.
(8) The defendant shall not communicate or interact with someone
the defendant knows is engaged in criminal activity. If the defendant
knows someone has been convicted of a felony, the defendant shall not
knowingly communicate or interact with that person without first
getting the permission of the probation officer.
(9) If the defendant is arrested or questioned by a law enforcement
officer, the defendant shall notify the probation officer within 72
hours.
(10) The defendant shall not own, possess, or have access to a
firearm, ammunition, destructive device, or dangerous weapon (i.e.,
anything that was designed, or was modified for, the specific purpose
of causing bodily injury or death to another person, such as nunchakus
or tasers).
(11) The defendant shall not act or make any agreement with a law
enforcement agency to act as a confidential human source or informant
without first getting the permission of the court.
(12) If the probation officer determines that the defendant poses a
risk to another person (including an organization), the probation
officer may require the defendant to notify the person about the risk
and the defendant shall comply with that instruction. The probation
officer may contact the person and confirm that the defendant has
notified the person about the risk.
(13) The defendant shall follow the instructions of the probation
officer related to the conditions of supervision.
(d) `Special' Conditions (Policy Statement)
The following `special' conditions of supervised release are
recommended in the circumstances described and, in addition, may
otherwise be appropriate in particular cases:
(1) Support of Dependents
(A) If the defendant has one or more dependents--a condition
specifying that the defendant shall support his or her dependents.
(B) If the defendant is ordered by the government to make child
support payments or to make payments to support a person caring for a
child--a condition specifying that the defendant shall make the
payments and comply with the other terms of the order.
(2) Debt Obligations
If an installment schedule of payment of restitution or a fine is
imposed--a condition prohibiting the defendant from incurring new
credit charges or opening additional lines of credit without approval
of the probation officer unless the defendant is in compliance with the
payment schedule.
(3) Access to Financial Information
If the court imposes an order of restitution, forfeiture, or notice
to victims, or orders the defendant to pay a fine--a condition
requiring the defendant to provide the probation officer access to any
requested financial information.
(4) Substance Abuse
If the court has reason to believe that the defendant is an abuser
of narcotics, other controlled substances or alcohol--(A) a condition
requiring the defendant to participate in a program approved by the
United States Probation Office for substance abuse, which program may
include testing to determine whether the defendant has reverted to the
use of drugs or alcohol; and (B) a condition specifying that the
defendant shall not use or possess alcohol.
(5) Mental Health Program Participation
If the court has reason to believe that the defendant is in need of
psychological or psychiatric treatment--a condition requiring that the
defendant participate in a mental health program approved by the United
States Probation Office.
(6) Deportation
If (A) the defendant and the United States entered into a
stipulation of deportation pursuant to section 238(c)(5) of the
Immigration and Nationality Act (8 U.S.C. 1228(c)(5)*); or (B) in the
absence of a stipulation of deportation, if, after notice and hearing
pursuant to such section, the Attorney General demonstrates by clear
and convincing evidence that the alien is deportable--a condition
ordering deportation by a United States district court or a United
States magistrate judge.
* So in original. Probably should be 8 U.S.C. 1228(d)(5).
(7) Sex Offenses
If the instant offense of conviction is a sex offense, as defined
in Application Note 1 of the Commentary to Sec. 5D1.2 (Term of
Supervised Release)--
(A) A condition requiring the defendant to participate in a program
approved by the United States Probation Office for the treatment and
monitoring of sex offenders.
(B) A condition limiting the use of a computer or an interactive
computer service in cases in which the defendant used such items.
(C) A condition requiring the defendant to submit to a search, at
any time, with or without a warrant, and by any law enforcement or
probation officer, of the defendant's person and any property, house,
residence, vehicle, papers, computer, other electronic communication or
data storage devices or media, and effects upon reasonable suspicion
concerning a violation of a condition of supervised release or unlawful
conduct by the defendant, or by any probation officer in the lawful
discharge of the officer's supervision functions.
(8) Unpaid Restitution, Fines, or Special Assessments
If the defendant has any unpaid amount of restitution, fines, or
special assessments, the defendant shall notify the probation officer
of any material change in the defendant's economic circumstances that
might affect the defendant's ability to pay.
(e) Additional Conditions (Policy Statement)
The following `special conditions' may be appropriate on a case-by-
case basis:
(1) Community Confinement
Residence in a community treatment center, halfway house or similar
facility may be imposed as a condition of supervised release. See Sec.
5F1.1 (Community Confinement).
(2) Home Detention
Home detention may be imposed as a condition of supervised release,
but only as a substitute for imprisonment. See Sec. 5F1.2 (Home
Detention).
(3) Community Service
Community service may be imposed as a condition of supervised
release. See Sec. 5F1.3 (Community Service).
(4) Occupational Restrictions
Occupational restrictions may be imposed as a condition of
supervised release. See Sec. 5F1.5 (Occupational Restrictions).
(5) Curfew
A condition imposing a curfew may be imposed if the court concludes
that restricting the defendant to his place of residence during evening
and nighttime hours is necessary to protect the public from crimes that
the defendant might commit during those hours, or to assist in the
rehabilitation of the defendant. Electronic monitoring may be used as a
means of surveillance to ensure compliance with a curfew order.
(6) Intermittent Confinement
Intermittent confinement (custody for intervals of time) may be
ordered as a condition of supervised release during
[[Page 19808]]
the first year of supervised release, but only for a violation of a
condition of supervised release in accordance with 18 U.S.C. 3583(e)(2)
and only when facilities are available. See Sec. 5F1.8 (Intermittent
Confinement).'';
and inserting at the end the following new subsection (b):
``(b) Discretionary Conditions
(1) In General.--The court should conduct an individualized
assessment to determine what, if any, other conditions of supervised
release are warranted.
Such conditions are warranted to the extent that they (A) are
reasonably related to (i) the nature and circumstances of the offense
and the history and characteristics of the defendant; (ii) the need for
the sentence imposed to afford adequate deterrence to criminal conduct;
(iii) the need to protect the public from further crimes of the
defendant; and (iv) the need to provide the defendant with needed
educational or vocational training, medical care, or other correctional
treatment in the most effective manner; and (B) involve no greater
deprivation of liberty than is reasonably necessary for the purposes
set forth above and are consistent with any pertinent policy statements
issued by the Sentencing Commission. See 18 U.S.C. 3583(d).
(2) `Standard' Conditions (Policy Statement)
The following are `standard' conditions of supervised release,
which the court may modify, expand, or omit in appropriate cases:
(A) The defendant shall report to the probation office in the
federal judicial district where he or she is authorized to reside
within 72 hours of release from imprisonment, unless the probation
officer instructs the defendant to report to a different probation
office or within a different time frame.
(B) After initially reporting to the probation office, the
defendant will receive instructions from the court or the probation
officer about how and when to report to the probation officer, and the
defendant shall report to the probation officer as instructed.
(C) The defendant shall not knowingly leave the federal judicial
district where he or she is authorized to reside without first getting
permission from the court or the probation officer.
(D) The defendant shall answer truthfully the questions asked by
the probation officer.
(E) The defendant shall live at a place approved by the probation
officer. If the defendant plans to change where he or she lives or
anything about his or her living arrangements (such as the people the
defendant lives with), the defendant shall notify the probation officer
at least 10 days before the change. If notifying the probation officer
at least 10 days in advance is not possible due to unanticipated
circumstances, the defendant shall notify the probation officer within
72 hours of becoming aware of a change or expected change.
(F) The defendant shall allow the probation officer to visit the
defendant at any time at his or her home or elsewhere, and the
defendant shall permit the probation officer to take any items
prohibited by the conditions of the defendant's supervision that he or
she observes in plain view.
(G) The defendant shall work full time (at least 30 hours per week)
at a lawful type of employment, unless the probation officer excuses
the defendant from doing so. If the defendant does not have full-time
employment he or she shall try to find full-time employment, unless the
probation officer excuses the defendant from doing so. If the defendant
plans to change where the defendant works or anything about his or her
work (such as the position or the job responsibilities), the defendant
shall notify the probation officer at least 10 days before the change.
If notifying the probation officer in advance is not possible due to
unanticipated circumstances, the defendant shall notify the probation
officer within 72 hours of becoming aware of a change or expected
change.
(H) The defendant shall not communicate or interact with someone
the defendant knows is engaged in criminal activity. If the defendant
knows someone has been convicted of a felony, the defendant shall not
knowingly communicate or interact with that person without first
getting the permission of the probation officer.
(I) If the defendant is arrested or questioned by a law enforcement
officer, the defendant shall notify the probation officer within 72
hours.
(J) The defendant shall not own, possess, or have access to a
firearm, ammunition, destructive device, or dangerous weapon (i.e.,
anything that was designed, or was modified for, the specific purpose
of causing bodily injury or death to another person, such as nunchakus
or tasers).
(K) The defendant shall not act or make any agreement with a law
enforcement agency to act as a confidential human source or informant
without first getting the permission of the court.
(L) If the probation officer determines that the defendant poses a
risk to another person (including an organization), the probation
officer may require the defendant to notify the person about the risk
and the defendant shall comply with that instruction. The probation
officer may contact the person and confirm that the defendant has
notified the person about the risk.
(M) The defendant shall follow the instructions of the probation
officer related to the conditions of supervision.
(3) `Special' Conditions (Policy Statement)
One or more conditions from the following non-exhaustive list of
`special' conditions of supervised release may be appropriate in a
particular case, including in the circumstances described therein:
(A) Support of Dependents
(i) If the defendant has one or more dependents--a condition
specifying that the defendant shall support his or her dependents.
(ii) If the defendant is ordered by the government to make child
support payments or to make payments to support a person caring for a
child--a condition specifying that the defendant shall make the
payments and comply with the other terms of the order.
(B) Debt Obligations
If an installment schedule of payment of restitution or a fine is
imposed--a condition prohibiting the defendant from incurring new
credit charges or opening additional lines of credit without approval
of the probation officer unless the defendant is in compliance with the
payment schedule.
(C) Access to Financial Information
If the court imposes an order of restitution, forfeiture, or notice
to victims, or orders the defendant to pay a fine--a condition
requiring the defendant to provide the probation officer access to any
requested financial information.
(D) Substance Abuse
If the court has reason to believe that the defendant is an abuser
of narcotics, other controlled substances or alcohol--(i) a condition
requiring the defendant to participate in a program approved by the
United States Probation Office for substance abuse, which program may
include testing to determine whether the defendant has reverted to the
use of drugs or alcohol; and (ii) a condition specifying that the
defendant shall not use or possess alcohol.
(E) Mental Health Program Participation
If the court has reason to believe that the defendant is in need of
psychological or psychiatric treatment--a condition requiring that the
defendant participate in a mental health program approved by the United
States Probation Office.
(F) Deportation
If (i) the defendant and the United States entered into a
stipulation of
[[Page 19809]]
deportation pursuant to section 238(c)(5) of the Immigration and
Nationality Act (8 U.S.C. 1228(c)(5)*); or (ii) in the absence of a
stipulation of deportation, if, after notice and hearing pursuant to
such section, the Attorney General demonstrates by clear and convincing
evidence that the alien is deportable--a condition ordering deportation
by a United States district court or a United States magistrate judge.
* So in original. Probably should be 8 U.S.C. 1228(d)(5).
(G) Sex Offenses
If the instant offense of conviction is a sex offense--
(i) A condition requiring the defendant to participate in a program
approved by the United States Probation Office for the treatment and
monitoring of sex offenders.
(ii) A condition limiting the use of a computer or an interactive
computer service in cases in which the defendant used such items.
(iii) A condition requiring the defendant to submit to a search, at
any time, with or without a warrant, and by any law enforcement or
probation officer, of the defendant's person and any property, house,
residence, vehicle, papers, computer, other electronic communication or
data storage devices or media, and effects upon reasonable suspicion
concerning a violation of a condition of supervised release or unlawful
conduct by the defendant, or by any probation officer in the lawful
discharge of the officer's supervision functions.
(iv) A condition prohibiting the defendant from communicating, or
otherwise interacting, with any victim of the offense, either directly
or through someone else.
(H) Unpaid Restitution, Fines, or Special Assessments
If the defendant has any unpaid amount of restitution, fines, or
special assessments, the defendant shall notify the probation officer
of any material change in the defendant's economic circumstances that
might affect the defendant's ability to pay.
(I) Educational or Vocational Training
If the court has reason to believe that a course of study or
vocational training would be appropriate and would equip the defendant
for suitable employment, a condition specifying that the defendant
participate in a General Education Development (or similar) program,
vocational training, or skills training, unless the probation officer
excuses the defendant from doing so.
(J) Victim Contact
If there is an identifiable victim of the offense, a condition
prohibiting the defendant from communicating, or otherwise interacting,
with any of the victims, either directly or through someone else.
(K) Community Confinement
Residence in a community treatment center, halfway house or similar
facility may be imposed as a condition of supervised release. See Sec.
5F1.1 (Community Confinement).
(L) Home Detention
Home detention may be imposed as a condition of supervised release,
but only as a substitute for imprisonment. See Sec. 5F1.2 (Home
Detention).
(M) Community Service
Community service may be imposed as a condition of supervised
release. See Sec. 5F1.3 (Community Service).
(N) Occupational Restrictions
Occupational restrictions may be imposed as a condition of
supervised release. See Sec. 5F1.5 (Occupational Restrictions).
(O) Curfew
A condition imposing a curfew may be imposed if the court concludes
that restricting the defendant to his place of residence during evening
and nighttime hours is necessary to protect the public from crimes that
the defendant might commit during those hours, or to assist in the
rehabilitation of the defendant. Electronic monitoring may be used as a
means of surveillance to ensure compliance with a curfew order.
(P) Intermittent Confinement
Intermittent confinement (custody for intervals of time) may be
ordered as a condition of supervised release during the first year of
supervised release, but only for a violation of a condition of
supervised release in accordance with 18 U.S.C. 3583(e)(2) and only
when facilities are available. See Sec. 5F1.8 (Intermittent
Confinement).''.
The Commentary to Sec. 5D1.3 captioned ``Applications Note'' is
amended--
in the caption by striking ``Note'' and inserting ``Notes'';
by redesignating Note 1 as Note 2;
by inserting at the beginning the following new Note 1:
``1. Individualized Assessment.--When conducting an individualized
assessment under this section, the court must consider the same factors
used to determine whether to impose a term of supervised release, and
shall impose conditions of supervision not required by statute only to
the extent such conditions meet the requirements listed at 18 U.S.C.
3583(d). See 18 U.S.C. 3583(c), (d); Application Note 1 to Sec. 5D1.1
(Imposition of a Term of Supervised Release).'';
in Note 2 (as so redesignated) by striking ``(c)(4)'' both places
it appears and inserting ``(b)(2)(D)'';
and by inserting at the end the following new Note 3:
``3. Application of Subsection (b)(3)(G).-- For purposes of
subsection (b)(3)(G):
`Sex offense' means (A) an offense, perpetrated against a minor,
under (i) chapter 109A of title 18, United States Code; (ii) chapter
110 of such title, not including a recordkeeping offense; (iii) chapter
117 of such title, not including transmitting information about a minor
or filing a factual statement about an alien individual; (iv) an
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591;
or (B) an attempt or a conspiracy to commit any offense described in
subparagraphs (A)(i) through (v) of this note. Such term does not
include an offense under 18 U.S.C. 2250 (Failure to register).
`Minor' means (A) an individual who had not attained the age of 18
years; (B) an individual, whether fictitious or not, who a law
enforcement officer represented to a participant (i) had not attained
the age of 18 years; and (ii) could be provided for the purposes of
engaging in sexually explicit conduct; or (C) an undercover law
enforcement officer who represented to a participant that the officer
had not attained the age of 18 years.''.
Chapter Five, Part D is amended by inserting at the end the
following new Sec. 5D1.4:
``Sec. 5D1.4. Modification, Early Termination, and Extension of
Supervised Release (Policy Statement)
(a) Modification of Conditions.--At any time prior to the
expiration or termination of the term of supervised release, the court
may modify, reduce, or enlarge the conditions of supervised release
whenever warranted by an individualized assessment of the
appropriateness of existing conditions. See 18 U.S.C. 3583(e)(2). The
court is encouraged to conduct such an assessment in consultation with
the probation officer after the defendant's release from imprisonment.
(b) Early Termination.--Any time after the expiration of one year
of supervised release and after an individualized assessment of the
need for ongoing supervision, the court may terminate the remaining
term of supervision and discharge the defendant if the court
determines, following consultation with the government and the
probation officer, that the termination is warranted by the conduct of
the defendant and in the interest of justice. See 18 U.S.C. 3583(e)(1).
(c) Extending a Term of Supervised Release.--The court may, at any
time prior to the expiration or termination of
[[Page 19810]]
a term of supervised release, extend the term of supervised release if
less than the maximum authorized term of supervised release was
previously imposed and the extension is warranted by an individualized
assessment of the need for further supervision. See 18 U.S.C.
3583(e)(2).
Commentary
Application Notes:
1. Individualized Assessment.--
(A) In General.--When making an individualized assessment under
this section, the factors to be considered are the same factors used to
determine whether to impose a term of supervised release. See 18 U.S.C.
3583(c), (e); Application Note 1 to Sec. 5D1.1 (Imposition of a Term
of Supervised Release).
(B) Early Termination.--When determining whether to terminate the
remaining term of supervised release under subsection (b), the court
may wish to consider such factors as:
(i) any history of court-reported violations over the term of
supervision;
(ii) the ability of the defendant to lawfully self-manage (e.g.,
the ability to problem-solve and avoid situations that may result in a
violation of a condition of supervised release or new criminal
charges);
(iii) the defendant's substantial compliance with all conditions of
supervision;
(iv) the defendant's engagement in appropriate prosocial activities
and the existence or lack of prosocial support to remain lawful beyond
the period of supervision;
(v) a demonstrated reduction in risk level or maintenance of the
lowest category of risk over the period of supervision; and
(vi) whether termination will jeopardize public safety, as
evidenced by the nature of the defendant's offense, the defendant's
criminal history, the defendant's record while incarcerated, the
defendant's efforts to reintegrate into the community and avoid
recidivism, any statements or information provided by the victims of
the offense, and other factors the court finds relevant.
2. Notification of Victims.--When determining whether to modify any
condition of supervised release that would be relevant to a victim or
to terminate the remaining term of supervised release, the Commission
encourages the court, in coordination with the government, to ensure
that any victim of the offense is reasonably, accurately, and timely
notified, and provided, to the extent practicable, with an opportunity
to be reasonably heard, unless any such victim previously requested not
to be notified.
3. Application of Subsection (c).--Subsection (c) addresses a
court's authority to extend a term of supervised release. In some
cases, extending a term may be more appropriate than taking other
measures, such as revoking the term of supervised release.''.
The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is
amended in Note 4(C) by striking ``Application Note 4 and subsection
(f) of Sec. 7B1.3 (Revocation of Probation or Supervised Release)''
and inserting ``Application Note 3 and subsection (f) of Sec. 7B1.3
(Revocation of Probation)''.
Section 5H1.3 is amended in the paragraph that begins ``Mental and
emotional conditions may be relevant in determining the conditions'' by
striking ``5D1.3(d)(5)'' and inserting ``5D1.3(b)(3)(E)''.
Section 5H1.4 is amended in the paragraph that begins ``Drug or
alcohol dependence or abuse'' by striking ``Sec. 5D1.3(d)(4)'' and
inserting ``Sec. 5D1.3(b)(3)(D)''.
Chapter Seven, Part A is amended--
in Subpart 1 by striking the following:
``Under 28 U.S.C. 994(a)(3), the Sentencing Commission is required
to issue guidelines or policy statements applicable to the revocation
of probation and supervised release. At this time, the Commission has
chosen to promulgate policy statements only. These policy statements
will provide guidance while allowing for the identification of any
substantive or procedural issues that require further review. The
Commission views these policy statements as evolutionary and will
review relevant data and materials concerning revocation determinations
under these policy statements. Revocation guidelines will be issued
after federal judges, probation officers, practitioners, and others
have the opportunity to evaluate and comment on these policy
statements.'';
and inserting the following:
``Under 28 U.S.C. 994(a)(3), the Sentencing Commission is required
to issue guidelines or policy statements applicable to the revocation
of probation and supervised release. The Commission chose to promulgate
policy statements only. These policy statements were intended to
provide guidance and allow for the identification of any substantive or
procedural issues that require further review. The Commission viewed
these policy statements as evolutionary and intended to review relevant
data and materials concerning revocation determinations under these
policy statements. Updated policies would be issued after federal
judges, probation officers, practitioners, and others had the
opportunity to evaluate and comment on these policy statements.'';
in Subpart 3(a), in the paragraph that begins ``Moreover, the
Commission'' by striking ``anticipates'' and inserting ``anticipated'';
by striking ``will provide'' and inserting ``would provide''; by
striking ``represent'' and inserting ``represented''; and by striking
``intends to promulgate revocation guidelines'' and inserting
``intended to promulgate updated revocation policies'';
in Subpart 3(b)--
in the paragraph that begins ``The Commission debated'' by striking
``debated'' and inserting ``initially debated'';
and in the paragraph that begins ``Given the relatively narrow
ranges'' by striking ``this time'' and inserting ``that time'';
in Subpart 4--
in the paragraph that begins ``The revocation policy statements''
by striking ``categorize'' and inserting ``categorized''; and by
striking ``fix'' and inserting ``fixed'';
and in the paragraph that begins ``The Commission'' by striking
``has elected'' and inserting ``initially elected''; by striking ``the
Commission determined'' and inserting ``the Commission had
determined''; and by striking ``the Commission has initially
concluded'' and inserting ``the Commission initially concluded'';
by striking Subpart 5 as follows:
``5. A Concluding Note
The Commission views these policy statements for revocation of
probation and supervised release as the first step in an evolutionary
process. The Commission expects to issue revocation guidelines after
judges, probation officers, and practitioners have had an opportunity
to apply and comment on the policy statements.
In developing these policy statements, the Commission assembled two
outside working groups of experienced probation officers representing
every circuit in the nation, officials from the Probation Division of
the Administrative Office of the U.S. Courts, the General Counsel's
office at the Administrative Office of the U.S. Courts, and the U.S.
Parole Commission. In addition, a number of federal judges, members of
the Criminal Law and Probation Administration Committee of the Judicial
Conference, and representatives from the Department of Justice and
federal and community defenders provided considerable input into this
effort.'';
[[Page 19811]]
and by inserting at the end the following new Subpart 5:
``5. Updating the Approach
The Commission viewed the original policy statements for revocation
of probation and supervised release as the first step in an
evolutionary process. The Commission intended to revise its approach
after judges, probation officers, and practitioners had an opportunity
to apply and comment on the policy statements. Since the promulgation
of those policy statements, a broad array of stakeholders has
identified the need for more flexible, individualized responses to
violations of supervised release.
In response, the Commission updated the policy statements in this
chapter to ensure judges have the discretion necessary to properly
manage supervised release. The revised policy statements encourage
judges to take an individualized approach in: (1) responding to reports
of non-compliance before initiating revocation proceedings; (2)
addressing violations found during revocation proceedings; and (3)
imposing a sentence of imprisonment upon revocation. These changes are
intended to better allocate taxpayer dollars and probation resources,
encourage compliance and improve public safety, and facilitate the
reentry and rehabilitation of defendants.
This chapter proceeds in two parts: Part B addresses violations of
probation, and Part C addresses violations of supervised release. Both
parts maintain an approach in which the court addresses primarily the
defendant's failure to comply with court-ordered conditions, while
reflecting, to a limited degree, the seriousness of the underlying
violation and the criminal history of the individual. The Commission
determined that violations of probation and supervised release should
be addressed separately to reflect their different purposes. While
probation serves all the goals of sentencing, including punishment,
supervised release primarily `fulfills rehabilitative ends, distinct
from those served by incarceration.' United States v. Johnson, 529 U.S.
53, 59 (2000). In light of these differences, Part B continues to
recommend revocation for most probation violations. Part C encourages
courts to consider a graduated response to a violation of supervised
release, including considering all available options focused on
facilitating a defendant's transition into the community and promoting
public safety. Parts B and C both recognize the important role of the
court, which is best situated to consider the individual defendant's
risks and needs and respond accordingly within its broad discretion.''.
Chapter Seven, Part B is amended--
in the heading by striking ``Probation and Supervised Release
Violations'' and inserting ``Violations of Probation'';
and in the Introductory Commentary--
in the paragraph that begins ``The policy statements'' by striking
``chapter'' and inserting ``part''; and by striking ``supervision'' and
inserting ``probation'';
by striking the following paragraph:
``Because these policy statements focus on the violation of the
court-ordered supervision, this chapter, to the extent permitted by
law, treats violations of the conditions of probation and supervised
release as functionally equivalent.'';
by striking the last paragraph as follows:
``This chapter is applicable in the case of a defendant under
supervision for a felony or Class A misdemeanor. Consistent with Sec.
1B1.9 (Class B or C Misdemeanors and Infractions), this chapter does
not apply in the case of a defendant under supervision for a Class B or
C misdemeanor or an infraction.'';
and by inserting at the end the following new paragraph:
``This part is applicable in the case of a defendant on probation
for a felony or Class A misdemeanor. Consistent with Sec. 1B1.9 (Class
B or C Misdemeanors and Infractions), this part does not apply in the
case of a defendant on probation for a Class B or C misdemeanor or an
infraction.''.
Section 7B1.1 is amended--
in subsection (a) by striking ``and supervised release'';
in subsection (a)(3) by striking ``supervision'' and inserting
``probation'';
and in subsection (b) by striking ``supervision'' and inserting
``probation''.
The Commentary to Sec. 7B1.1 captioned ``Application Notes'' is
amended--
in Note 1 by striking ``18 U.S.C. 3563(a)(1) and 3583(d), a
mandatory condition of probation and supervised release'' and inserting
``18 U.S.C. 3563(a)(1), a mandatory condition of probation'';
and in Note 5 by striking ``under supervision'' and inserting ``on
probation''.
Section 7B1.2 is amended in the heading by striking ``and
Supervised Release''.
Section 7B1.3 is amended--
in the heading by striking ``or Supervised Release'';
in subsection (a)(1) by striking ``or supervised release'';
in subsection (a)(2) by striking ``(A) revoke probation or
supervised release; or (B) extend the term of probation or supervised
release and/or modify the conditions of supervision'' and inserting
``(A) revoke probation; or (B) extend the term of probation and/or
modify the conditions thereof'';
in subsection (b) by striking ``or supervised release'';
in subsection (e) by striking ``or supervised release'' both places
such phrase appears;
in subsection (f) by striking ``or supervised release'' both places
such phrase appears;
in subsection (g) by striking the following:
``(1) If probation is revoked and a term of imprisonment is
imposed, the provisions of Sec. Sec. 5D1.1-1.3 shall apply to the
imposition of a term of supervised release.
(2) If supervised release is revoked, the court may include a
requirement that the defendant be placed on a term of supervised
release upon release from imprisonment. The length of such a term of
supervised release shall not exceed the term of supervised release
authorized by statute for the offense that resulted in the original
term of supervised release, less any term of imprisonment that was
imposed upon revocation of supervised release. 18 U.S.C. 3583(h).'';
and inserting the following:
``If probation is revoked and a term of imprisonment is imposed,
the provisions of Sec. Sec. 5D1.1-1.3 shall apply to the imposition of
a term of supervised release.''.
The Commentary to Sec. 7B1.3 captioned ``Application Notes'' is
amended--
in Note 1 by striking ``or supervised release''; and by striking
``supervision'' both places such term appears and inserting
``probation'';
by striking Note 2 as follows:
``2. The provisions for the revocation, as well as early
termination and extension, of a term of supervised release are found in
18 U.S.C. 3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective
September 13, 1994), the court, in the case of revocation of supervised
release, may order an additional period of supervised release to follow
imprisonment.'';
by redesignating Notes 3, 4, and 5 as Notes 2, 3, and 4,
respectively;
in Note 2 (as so redesignated) by striking ``or supervised
release''; and by striking ``Bureau of Prisons'' and inserting
``Federal Bureau of Prisons'';
in Note 3 (as so redesignated) by striking ``or supervised
release'' both places such phrase appears;
and in Note 4 (as so redesignated) by striking ``. Intermittent
confinement is
[[Page 19812]]
authorized as a condition of supervised release during the first year
of supervised release, but only for a violation of a condition of
supervised release in accordance with 18 U.S.C. 3583(e)(2) and only
when facilities are available. See Sec. 5F1.8 (Intermittent
Confinement)'' and inserting ``; see also Sec. 5F1.8 (Intermittent
Confinement)''.
Section 7B1.4 is amended in the heading by striking
``Imprisonment'' and inserting ``Imprisonment--Probation''.
Section 7B1.4(a) is amended in the Table--
in the heading by striking ``Revocation Table'' and inserting
``Probation Revocation Table'';
and by striking the following:
``Grade A (1) Except as provided in subdivision (2) below:
12-18 15-21 18-24 24-30 30-37 33-41.
(2) Where the defendant was on probation or supervised release as a
result of a sentence for a Class A felony:
24-30 27-33 30-37 37-46 46-57 51-63.
* The criminal history category is the category applicable at the
time the defendant originally was sentenced to a term of
supervision.'';
and inserting the following:
``Grade A 12-18 15-21 18-24 24-30 30-37 33-41.
* The criminal history category is the category applicable at the
time the defendant originally was sentenced to a term of probation.''.
The Commentary to Sec. 7B1.4 captioned ``Application Notes'' is
amended--
in Note 1 by striking the following:
``The criminal history category to be used in determining the
applicable range of imprisonment in the Revocation Table is the
category determined at the time the defendant originally was sentenced
to the term of supervision. The criminal history category is not to be
recalculated because the ranges set forth in the Revocation Table have
been designed to take into account that the defendant violated
supervision. In the rare case in which no criminal history category was
determined when the defendant originally was sentenced to the term of
supervision being revoked, the court shall determine the criminal
history category that would have been applicable at the time the
defendant originally was sentenced to the term of supervision. (See the
criminal history provisions of Sec. Sec. 4A1.1-4B1.4.)'';
and inserting the following:
``The criminal history category to be used in determining the
applicable range of imprisonment in the Probation Revocation Table is
the category determined at the time the defendant originally was
sentenced to the term of probation. The criminal history category is
not to be recalculated because the ranges set forth in the Probation
Revocation Table have been designed to take into account that the
defendant violated probation. Example: A defendant, who was originally
sentenced in 2022, was determined to have a criminal history category
of II due in part to having committed the offense `while under any
criminal justice sentence.' See Sec. 4A1.1(d) (Criminal History
Category) (Nov. 2021). For purposes of determining the applicable range
of imprisonment in the Probation Revocation Table, the defendant's
criminal history category is category II, regardless of whether the
defendant's criminal history category would be reduced for other
purposes based on the retroactive application of Part A of Amendment
821 pursuant to Sec. 1B1.10 (Reduction of Imprisonment as a Result of
Amended Guideline Range (Policy Statement)). See USSG App. C, Amendment
825 (effective November 1, 2023).
In the rare case in which no criminal history category was
determined when the defendant originally was sentenced to the term of
probation being revoked, the court shall determine the criminal history
category that would have been applicable at the time the defendant
originally was sentenced to the term of probation. (See the criminal
history provisions of Sec. Sec. 4A1.1-4B1.4.)'';
in Note 2 by striking ``Revocation Table'' and inserting
``Probation Revocation Table''; and by striking ``supervision'' both
places such term appears and inserting ``probation'';
in Note 3 by striking ``under supervision'' and inserting ``on
probation'';
in Note 5 by striking ``or supervised release'' both places such
phrase appears; and by striking ``18 U.S.C. 3565(b), 3583(g)'' and
inserting ``18 U.S.C. 3565(b)'';
and in Note 6 by striking ``under 18 U.S.C. 3565(b) and 3583(g). 18
U.S.C. 3563(a), 3583(d)'' and inserting ``under 18 U.S.C. 3565(b). 18
U.S.C. 3563(a)''.
Section 7B1.5 is amended--
in the heading by striking ``Under Supervision'' and inserting ``on
Probation'';
by striking subsections (a), (b), and (c) as follows:
``(a) Upon revocation of probation, no credit shall be given
(toward any sentence of imprisonment imposed) for any portion of the
term of probation served prior to revocation.
(b) Upon revocation of supervised release, no credit shall be given
(toward any term of imprisonment ordered) for time previously served on
post-release supervision.
(c) Provided, that in the case of a person serving a period of
supervised release on a foreign sentence under the provisions of 18
U.S.C. 4106A, credit shall be given for time on supervision prior to
revocation, except that no credit shall be given for any time in escape
or absconder status.'';
and inserting the following:
``Upon revocation of probation, no credit shall be given (toward
any sentence of imprisonment imposed) for any portion of the term of
probation served prior to revocation.''.
The Commentary to Sec. 7B1.5 is amended by striking the Commentary
captioned ``Application Note'' in its entirety as follows:
``Application Note:
1. Subsection (c) implements 18 U.S.C. 4106A(b)(1)(C), which
provides that the combined periods of imprisonment and supervised
release in transfer treaty cases shall not exceed the term of
imprisonment imposed by the foreign court.''.
The Commentary to Sec. 7B1.5 captioned ``Background'' is amended
by striking ``or supervised release''; by striking ``with supervision''
and inserting ``with probation''; and by striking ``under supervision''
and inserting ``on probation''.
Chapter Seven is amended by inserting at the end the following new
Part C:
``Part C--Violations of Supervised Release
Introductory Commentary
At the time of original sentencing, the court may--and in some
cases, must--impose a term of supervised release to follow the sentence
of imprisonment. See 18 U.S.C. 3583(a). During that term, the court may
receive allegations that the defendant has violated a condition of
supervision. In responding to such allegations, addressing a violation
found during revocation proceedings, and imposing a sentence upon
revocation, the court should conduct the same kind of individualized
assessment used `in determining whether to include a term of supervised
release, and, if a term of supervised release is to be included, in
determining the length of the term and the conditions of supervised
release.' See 18 U.S.C. 3583(c), (e); Application Note 1 to Sec. 5D1.1
(Imposition of a Term of Supervised Release).
If the court finds that the defendant violated a condition of
supervised release, it may continue the defendant on supervised release
under existing
[[Page 19813]]
conditions, modify the conditions, extend the term, or revoke
supervised release and impose a term of imprisonment. See 18 U.S.C.
3583(e)(3). The court also has authority to terminate a term of
supervised release and discharge the defendant at any time after the
expiration of one year of supervised release if it is satisfied that
such action is warranted by the conduct of the defendant and the
interest of justice. 18 U.S.C. 3583(e)(1).
Because supervised release is intended to promote rehabilitation
and ease the defendant's transition back into the community, the
Commission encourages courts--where possible--to consider a wide array
of options to respond to non-compliant behavior and violations of the
conditions of supervised release. These interim steps before revocation
are intended to allow courts to address the defendant's failure to
comply with court-imposed conditions and to better address the needs of
the defendant while also maintaining public safety. If revocation is
mandated by statute or the court otherwise determines revocation to be
appropriate, the sentence imposed upon revocation should be tailored to
address the failure to abide by the conditions of the court-ordered
supervision; imposition of an appropriate punishment for new criminal
conduct is not the primary goal of a revocation sentence. The
determination of the appropriate sentence on any new criminal
conviction that is also a basis of the violation should be a separate
determination for the court having jurisdiction over such conviction.
Sec. 7C1.1. Classification of Violations (Policy Statement)
(a) There are four grades of supervised release violations:
(1) Grade A Violations--conduct constituting (A) a federal, state,
or local offense punishable by a term of imprisonment exceeding one
year that (i) is a crime of violence, (ii) is a controlled substance
offense, or (iii) involves possession of a firearm or destructive
device of a type described in 26 U.S.C. 5845(a); or (B) any other
federal, state, or local offense punishable by a term of imprisonment
exceeding twenty years;
(2) Grade B Violations--conduct constituting any other federal,
state, or local offense punishable by a term of imprisonment exceeding
one year;
(3) Grade C Violations--conduct constituting (A) a federal, state,
or local offense punishable by a term of imprisonment of one year or
less; or (B) a violation of any other condition of supervised release.
(b) Where there is more than one violation of the conditions of
supervised release, or the violation includes conduct that constitutes
more than one offense, the grade of the violation is determined by the
violation having the most serious grade.
Commentary
Application Notes:
1. Under 18 U.S.C. Sec. 3583(d), a mandatory condition of
supervised release is that the defendant not commit another federal,
state, or local crime. A violation of this condition may be charged
whether or not the defendant has been the subject of a separate
federal, state, or local prosecution for such conduct. The grade of
violation does not depend upon the conduct that is the subject of
criminal charges or of which the defendant is convicted in a criminal
proceeding. Rather, the grade of the violation is to be based on the
defendant's actual conduct.
2. `Crime of violence' is defined in Sec. 4B1.2 (Definitions of
Terms Used in Section 4B1.1). See Sec. 4B1.2(a) and Application Note 1
of the Commentary to Sec. 4B1.2.
3. `Controlled substance offense' is defined in Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1). See Sec. 4B1.2(b) and
Application Note 1 of the Commentary to Sec. 4B1.2.
4. A `firearm or destructive device of a type described in 26
U.S.C. 5845(a)' includes a shotgun, or a weapon made from a shotgun,
with a barrel or barrels of less than 18 inches in length; a weapon
made from a shotgun or rifle with an overall length of less than 26
inches; a rifle, or a weapon made from a rifle, with a barrel or
barrels of less than 16 inches in length; a machine gun; a muffler or
silencer for a firearm; a destructive device; and certain large bore
weapons.
5. Where the defendant is on supervised release in connection with
a felony conviction, or has a prior felony conviction, possession of a
firearm (other than a firearm of a type described in 26 U.S.C. 5845(a))
will generally constitute a Grade B violation, because 18 U.S.C. 922(g)
prohibits a convicted felon from possessing a firearm. The term
`generally' is used in the preceding sentence, however, because there
are certain limited exceptions to the applicability of 18 U.S.C.
922(g). See, e.g., 18 U.S.C. 925(c).
Sec. 7C1.2. Reporting of Violations of Supervised Release (Policy
Statement)
(a) The probation officer shall promptly report to the court any
alleged Grade A or B violation.
(b) The probation officer shall promptly report to the court any
alleged Grade C violation unless the officer determines: (1) that such
violation is minor, and not part of a continuing pattern of violations;
and (2) that non-reporting will not present an undue risk to an
individual or the public or be inconsistent with any directive of the
court relative to the reporting of violations.
Commentary
Application Note:
1. Under subsection (b), a Grade C violation must be promptly
reported to the court unless the probation officer makes an affirmative
determination that the alleged violation meets the criteria for non-
reporting. For example, an isolated failure to file a monthly report or
a minor traffic infraction generally would not require reporting.
Sec. 7C1.3. Responses to Violations of Supervised Release (Policy
Statement)
(a) Report of Non-Compliance.--Upon receiving a report that the
defendant is in non-compliance with a condition of supervised release,
the court should conduct an individualized assessment to determine what
response, if any, is appropriate.
(b) Finding of a Violation.--Upon a finding of a violation for
which revocation is required by statute (see 18 U.S.C. 3583(g)), the
court shall revoke supervised release. Upon a finding of any other
violation, the court should conduct an individualized assessment,
taking into consideration the grade of the violation, to determine
whether to revoke supervised release. Revocation is generally
appropriate for a Grade A violation, often appropriate for a Grade B
violation, and may be appropriate for a Grade C violation.
Commentary
Application Notes:
1. Individualized Assessment.--When making an individualized
assessment under this section, the factors to be considered are the
same as the factors considered in determining whether to impose a term
of supervised release. See 18 U.S.C. 3583(c), (e); Application Note 1
to Sec. 5D1.1 (Imposition of a Term of Supervised Release).
2. Responses.--Upon a report of non-compliance or a finding of a
violation, the court may take any appropriate action provided under 18
U.S.C. Sec. 3583, which includes extension, modification, revocation,
or termination of supervised release. If revocation is not statutorily
required, the court may also consider an informal response, such as
issuing a warning while maintaining supervised release without
modification, continuing the violation hearing to
[[Page 19814]]
provide the defendant time to come into compliance, or directing the
defendant to additional resources needed to come into compliance.
3. Issuing Summons.--If the defendant's presence in court is
required to address a report of non-compliance, the court should
consider issuing a summons rather than an arrest warrant where
appropriate.
Sec. 7C1.4. Revocation of Supervised Release (Policy Statement)
(a) In the case of a revocation of supervised release, the court
shall conduct an individualized assessment to determine the appropriate
length of the term of imprisonment, given the recommended range of
imprisonment set forth in Sec. 7C1.5 (Term of Imprisonment--Supervised
Release (Policy Statement)).
(b) Any term of imprisonment imposed upon the revocation of
supervised release generally should be ordered to be served
consecutively to any sentence of imprisonment that the defendant is
serving, whether or not the sentence of imprisonment being served
resulted from the conduct that is the basis of the revocation of
supervised release.
(c) If supervised release is revoked, the court may include a
requirement that the defendant be placed on a term of supervised
release upon release from imprisonment. The length of such a term of
supervised release shall not exceed the term of supervised release
authorized by statute for the offense that resulted in the original
term of supervised release, less any term of imprisonment that was
imposed upon revocation of supervised release. 18 U.S.C. 3583(h).
Commentary
Application Notes:
1. Individualized Assessment.--When making an individualized
assessment under subsection (a), the factors to be considered are the
same as the factors considered in determining whether to impose a term
of supervised release. See 18 U.S.C. 3583(c), (e); Application Note 1
to Sec. 5D1.1 (Imposition of a Term of Supervised Release).
2. The provisions for the revocation, as well as early termination
and extension, of a term of supervised release are found in 18 U.S.C.
3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective September 13,
1994), the court, in the case of revocation of supervised release, may
order an additional period of supervised release to follow
imprisonment.
3. In the case of a revocation based, at least in part, on a
violation of a condition specifically pertaining to community
confinement, intermittent confinement, or home detention, use of the
same or a less restrictive sanction is not recommended.
4. Any restitution, fine, community confinement, home detention, or
intermittent confinement previously imposed in connection with the
sentence for which revocation is ordered that remains unpaid or
unserved at the time of revocation shall be ordered to be paid or
served in addition to the sanction determined under Sec. 7C1.5 (Term
of Imprisonment--Supervised Release), and any such unserved period of
community confinement, home detention, or intermittent confinement may
be converted to an equivalent period of imprisonment.
Sec. 7C1.5. Term of Imprisonment--Supervised Release (Policy
Statement)
Unless otherwise required by statute, and subject to an
individualized assessment, the recommended range of imprisonment
applicable upon revocation is set forth in the following table:
Supervised Release Revocation Table (In Months of Imprisonment)
Criminal History Category *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Grade of violation I II III IV V VI
--------------------------------------------------------------------------------------------------------------------------------------------------------
Grade C................................................. 3-9 4-10 5-11 6-12 7-13 8-14
Grade B................................................. 4-10 6-12 8-14 12-18 18-24 21-27
-----------------------------------------------------------------------------------------------
Grade A................................................. (1) Except as provided in subdivision (2) below:
-----------------------------------------------------------------------------------------------
12-18 15-21 18-24 24-30 30-37 33-41
-----------------------------------------------------------------------------------------------
(2) Where the defendant was on supervised release as a result of a sentence for a Class A
felony:
-----------------------------------------------------------------------------------------------
24-30 27-33 30-37 37-46 46-57 51-63.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The criminal history category is the category applicable at the time the defendant originally was sentenced to a term of supervised release.
Commentary
Application Notes:
1. The criminal history category to be used in determining the
applicable range of imprisonment in the Supervised Release Revocation
Table is the category determined at the time the defendant originally
was sentenced to the term of supervision. The criminal history category
is not to be recalculated because the ranges set forth in the
Supervised Release Revocation Table have been designed to take into
account that the defendant violated supervision. Example: A defendant,
who was originally sentenced in 2022, was determined to have a criminal
history category of II due in part to having committed the offense
`while under any criminal justice sentence.' See Sec. 4A1.1(d)
(Criminal History Category) (Nov. 2021). For purposes of determining
the applicable range of imprisonment in the Supervised Release
Revocation Table, the defendant's criminal history category is category
II, regardless of whether the defendant's criminal history category
would be reduced for other purposes based on the retroactive
application of Part A of Amendment 821 pursuant to Sec. 1B1.10
(Reduction of Imprisonment as a Result of Amended Guideline Range
(Policy Statement)). See USSG App. C, Amendment 825 (effective November
1, 2023).
In the rare case in which no criminal history category was
determined when the defendant originally was sentenced to the term of
supervision being revoked, the court shall determine the criminal
history category that would have been applicable at the time the
defendant originally was sentenced to the term of supervision. (See the
criminal history provisions of Sec. Sec. 4A1.1-4B1.4.)
2. Departure from the applicable range of imprisonment in the
Supervised Release Revocation Table may be warranted when the court
departed from the applicable range for reasons set forth
[[Page 19815]]
in Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History
Category) in originally imposing the sentence that resulted in
supervised release. Additionally, an upward departure may be warranted
when a defendant, subsequent to the federal sentence resulting in
supervised release, has been sentenced for an offense that is not the
basis of the violation proceeding.
3. In the case of a Grade C violation that is associated with a
high risk of new felonious conduct (e.g., a defendant, under supervised
release for conviction of criminal sexual abuse, violates the condition
that the defendant not associate with children by loitering near a
schoolyard), an upward departure may be warranted.
4. Where the original sentence was the result of a downward
departure (e.g., as a reward for substantial assistance), or a charge
reduction that resulted in a sentence below the guideline range
applicable to the defendant's underlying conduct, an upward departure
may be warranted.
5. Upon a finding that a defendant violated a condition of
supervised release by being in possession of a controlled substance or
firearm or by refusing to comply with a condition requiring drug
testing, the court is required to revoke supervised release and impose
a sentence that includes a term of imprisonment. 18 U.S.C. 3583(g).
6. The availability of appropriate substance abuse programs, or a
defendant's current or past participation in such programs, may warrant
an exception from the requirement of mandatory revocation and
imprisonment under 18 U.S.C. 3583(g). 18 U.S.C. 3583(d).
Sec. 7C1.6. No Credit for Time Under Supervision (Policy Statement)
(a) Upon revocation of supervised release, no credit shall be given
(toward any term of imprisonment ordered) for time previously served on
post-release supervision. See 18 U.S.C. 3583(e)(3).
(b) Provided, that in the case of a person serving a period of
supervised release on a foreign sentence under the provisions of 18
U.S.C. 4106A, credit shall be given for time on supervision prior to
revocation, except that no credit shall be given for any time in escape
or absconder status.
Commentary
Application Note:
1. Subsection (b) implements 18 U.S.C. 4106A(b)(1)(C), which
provides that the combined periods of imprisonment and supervised
release in transfer treaty cases shall not exceed the term of
imprisonment imposed by the foreign court.
Background: This section provides that time served on supervised
release is not to be credited in the determination of any term of
imprisonment imposed upon revocation. Other aspects of the defendant's
conduct, such as compliance with supervision conditions and adjustment
while under supervision, appropriately may be considered by the court
in the determination of the sentence to be imposed within the
applicable revocation range.''.
Reason for Amendment: This amendment updates the Guidelines
Manual's approach to supervised release by revising Part D (Supervised
Release) of Chapter Five (Determining the Sentence) and Chapter Seven
(Violations of Probation and Supervised Release).
The Sentencing Reform Act of 1984 established ``supervised
release'' as a tool a court could use to impose post-release
supervision on a defendant sentenced to a term of imprisonment. See 18
U.S.C. 3583. The primary goal of supervised release is to ``ease the
defendant's transition into the community after the service of a long
prison term for a particularly serious offense, or to provide
rehabilitation to a defendant who has spent a fairly short period in
prison . . . but still needs supervision and training programs after
release.'' S. Rep. No. 225, 98th Cong., 1st Sess. 54 (1983). Supervised
release also functions as an important tool to promote public safety.
See 18 U.S.C. 3583(c), 3553(a)(2)(C).
While statutes mandate the imposition and minimum length of
supervised release in some cases, courts generally have discretion to
determine whether to impose supervised release, to set its length and
conditions, modify those conditions, and to extend, revoke, or
terminate the term. In making these decisions, the Act requires courts
to examine a set of factors similar, but not identical, to those
considered when imposing a sentence. Compare 18 U.S.C. 3553(a) with 18
U.S.C. 3583(c)-(e).
In November 2024, the Commission held a roundtable on supervised
release attended by judges, retired federal probation officers,
providers of reentry services, academics, federal probation, government
and defense community representatives, and a reentry program graduate.
The Commission also received extensive public comment and testimony
from members of Congress, the Committee on Criminal Law of the Judicial
Conference of the United States, the Department of Justice, the Federal
Public and Community Defenders, the Commission's advisory groups, law
professors, currently and formerly incarcerated individuals, and other
criminal justice system stakeholders.
The amendment makes several overarching changes in response to this
feedback and consistent with the statutory purposes and framework.
First, it emphasizes the importance of judges making individualized
decisions about supervised release at all relevant stages--including
imposition, modification or extension, and revocation. Second, it
underscores the authority of courts, in consultation with the probation
officer, to reassess supervised release decisions after a defendant's
release from imprisonment, including decisions about the length and
conditions of supervision. Third, it underscores the rehabilitative
purposes of supervised release by dividing the provisions addressing
violations of probation and violations of supervised release into
separate parts of Chapter Seven and providing courts with greater
discretion to respond to a violation of a condition of supervised
release, including where appropriate, through alternatives to
revocation and imprisonment.
The amendment's specific changes to Chapters Five and Seven are
discussed further below.
Chapter Five, Part D (Supervised Release)
The amendment revises Chapter Five, Part D of the Guidelines Manual
to provide courts with greater discretion to impose a term of
supervised release that is appropriate for the individual defendant.
The amendment adds Introductory Commentary, revises each existing
guideline, and adds a new policy statement at Sec. 5D1.4, which
addresses extending or terminating supervised release or modifying the
conditions thereof.
Introductory Commentary
The amendment adds Introductory Commentary to Part D of Chapter
Five emphasizing that supervised release is intended to ease a
defendant's transition into the community, provide needed
rehabilitation, and promote public safety. It highlights the importance
of conducting an individualized assessment to determine whether a
defendant needs supervision and how to appropriately tailor the term
and conditions, as required by 18 U.S.C. 3583(c).
[[Page 19816]]
Sec. 5D1.1 (Imposition of a Term of Supervised Release)
The amendment revises Sec. 5D1.1 to provide greater judicial
discretion in determining whether any term of supervised release is
warranted. The amendment removes the requirement to impose supervised
release whenever the sentence of imprisonment is more than one year and
instead requires supervised release only when mandated by statute. In
any other case, ``the court should order a term of supervised release
when warranted by an individualized assessment of the need for
supervision.'' Application Note 1 defines the ``individualized
assessment'' by reference to the 18 U.S.C. 3553(a) factors that courts
must consider under 18 U.S.C. 3583(c). The Commentary to Sec. 5D1.1
continues to instruct courts to consider the defendant's criminal
history, substance abuse history, and history of domestic violence in
determining whether to impose a term of supervised release.
These changes respond to widespread concern that supervised release
often is ordered reflexively, potentially diverting supervision
resources from individuals who most need them. Commission data shows
that courts currently impose supervised release in most cases (82.5%).
This focus on an individualized assessment aims to ``assure that
[individuals] who will need post-release supervision will receive it''
while ``prevent[ing] probation system resources from being wasted on
supervisory services for releasees who do not need them,'' as Congress
intended. See S. Rep. No. 225, 98th Cong., 1st Sess. 54 (1983).
The amendment also adds new Sec. 5D1.1(d), which instructs that
``the court should state in open court the reasons for imposing or not
imposing a term of supervised release,'' consistent with 18 U.S.C.
3553(c).
Finally, it adds new Application Note 7, which alerts courts to the
fact that the decision whether to impose a term of supervised release
could affect subsequent application of First Step Act earned time
credits.
Sec. 5D1.2 (Term of Supervised Release)
The amendment revises Sec. 5D1.2 to provide courts with greater
discretion in determining the appropriate length of the term of
supervised release. It removes the recommended minimum terms by class
of offense from Sec. 5D1.2(a) and instead instructs the court to
conduct an individualized assessment to determine the length of the
term, which shall be not less than any statutorily required minimum
term. It continues to list the maximum terms of supervised release by
offense class, noting that some statutes may provide for a different
term. Application Note 1 provides that the factors considered for
purposes of determining the length of the term are the same as the
factors considered in determining whether to impose a term and--
consistent with 18 U.S.C. 3583(c) and 3553(a)--instructs that the court
should ensure the term ``is sufficient, but not greater than necessary,
to address the purposes of imposing supervised release on the
defendant.''
Similar to the changes made to Sec. 5D1.1, the amendment adds a
new instruction to Sec. 5D1.2 that ``the court should state in open
court the reasons for the length of the term imposed.''
Additionally, the amendment removes the policy statement
recommending the statutory maximum term of supervised release for sex
offense cases. Although imposition of a statutory maximum term may be
warranted in certain cases, the amendment leaves the appropriate term
to the court's discretion. As a related change, the amendment deletes a
similar maximum-term recommendation in the Commentary to Sec. 4B1.5
(Repeat and Dangerous Sex Offender Against Minors), but it continues to
recommend that treatment and monitoring be considered as special
conditions of supervised release for individuals sentenced under that
guideline.
Finally, in Application Notes 2 and 3, the amendment advises that
Congress has authorized higher statutory maximum and/or minimum terms
of supervised release for certain terrorism and sex offenses and for
some drug offenses.
Sec. 5D1.3 (Conditions of Supervised Release)
Section 5D1.3 sets forth mandatory and discretionary conditions of
supervised release. Discretionary conditions currently are further
subdivided into ``standard,'' ``special,'' and additional conditions.
The amendment restructures and revises the discretionary conditions of
supervised release in four ways. First, it adds a general instruction
at Sec. 5D1.3(b)(1), which provides that the court ``should conduct an
individualized assessment to determine what, if any,'' discretionary
conditions are warranted. Second, in Sec. 5D1.3(b)(2), it removes the
instruction that ``standard'' conditions ``are recommended for
supervised release'' and instead clarifies that they ``may be modified,
omitted, or expanded in appropriate cases.'' Third, in Sec.
5D1.3(b)(3), it removes the recommendation of imposing ``special''
conditions for listed circumstances and instead provides that ``[o]ne
or more conditions from the . . . non-exhaustive list of `special
conditions' may be appropriate in a particular case, including'' the
described circumstances. Fourth, it removes the ``additional
conditions'' subheading and incorporates those conditions into the list
of ``special'' conditions in Sec. 5D1.3(b)(3).
These changes emphasize that any standard, special, or other
discretionary conditions of supervised release--i.e., those not
required by statute--should be imposed only when warranted by an
individualized assessment, reflecting the requirements of 18 U.S.C.
3583(d) and feedback that certain conditions are at times imposed by
default. The Commission nonetheless recognizes the value of a list of
``standard'' conditions that establish basic behavioral expectations
and facilitate probation officers' supervision. Accordingly, the
amendment maintains the list of ``standard'' conditions without change
but notes the court's authority to impose and adjust them as
appropriate.
The amendment also adds three ``special'' conditions in response to
commenters' concerns about cases where victims need special protection
and cases where defendants could benefit from educational programs. The
revised Sec. 5D1.3 lists the following as ``special'' conditions: (1)
a condition prohibiting the defendant from interacting with any victim
if the instant conviction is a sex offense; (2) a condition prohibiting
the defendant from interacting with any identifiable victim, applicable
to all offenses generally; and (3) a condition that the defendant
participate in a General Education Development (or similar) program,
vocational training, or skills training if the court has reason to
believe it would be appropriate and would equip the defendant for
suitable employment.
New Sec. 5D1.4 (Modification, Early Termination, and Extension of
Supervised Release (Policy Statement))
The Commission sought to address with this amendment potential
issues surrounding the fact that the terms and conditions of supervised
release are imposed at original sentencing, often years before the
defendant begins supervision. People and their circumstances may change
in and after prison, such that the original term and conditions may no
longer be appropriate after the defendant's release. Courts are
encouraged to consider modifying the terms and conditions of supervised
[[Page 19817]]
release whenever changed individual circumstances so warrant.
While Commentary to Sec. 5D1.2 previously noted the court's
authority to terminate or extend supervised release and encouraged
courts to ``exercise this authority in appropriate cases,'' the
amendment adds a new policy statement at Sec. 5D1.4 to more directly
address a court's statutory authority to modify conditions or to
terminate or extend the term of supervised release.
Subsection (a) (Modification of Conditions) restates the court's
authority under 18 U.S.C. 3583(e)(2) to modify, reduce, or enlarge the
conditions of supervised release and encourages the court to conduct an
individualized assessment, in consultation with the probation officer,
to determine whether any change to the conditions is warranted after a
defendant's release from imprisonment. The Commission received feedback
that while probation officers often meet with defendants approaching
and after their release, judicial involvement varies by jurisdiction
and individual court practice. The Commission believes that more
consistent judicial participation in revisiting the conditions of
supervised release will facilitate successful reintegration, increase
compliance, and promote public safety, and, therefore, it is encouraged
as a best practice.
To encourage appropriate use of early termination, subsection (b)
(Early Termination) restates the court's authority under 18 U.S.C.
3583(e)(1) to terminate the remaining term of supervision any time
after one year of supervised release if the court determines, following
consultation with the government and the probation officer, that
termination is warranted by the conduct of the defendant and in the
interest of justice. Application Note 1(B) specifies factors a court
might consider in determining whether to terminate the remaining term
of supervised release, which are modeled in part after the factors in
the Guide to Judiciary Policy, Vol. 8E, Ch. 3, Sec. 360.20.
Considering early termination at appropriate intervals will help ensure
that resources are allocated to the individuals most in need of
continued supervision and that the term is ``sufficient, but not
greater than necessary'' to fulfill the purposes of imposing
supervision. See 18 U.S.C. 3583(c); 18 U.S.C. 3553(a); USSG Sec. 5D1.2
comment. (n.1) (as revised by this amendment).
Subsection (c) (Extending a Term of Supervised Release) provides
that the court may extend the term of supervised release any time
before the expiration of a term if less than the maximum term was
imposed and extension is warranted by an individualized assessment of
the need for further supervision. Application Note 3 notes that
extending a term may be more appropriate than revoking a term of
supervised release in some cases.
Application Note 2 encourages the court, in coordination with the
government, to ensure that any victim is reasonably, accurately, and
timely notified, and provided, to the extent practicable, with an
opportunity to be reasonably heard, unless any such victim previously
requested not to be notified.
Conforming Changes
The amendment also makes conforming changes to Sec. 1B1.10
(Reduction in Term of Imprisonment as a Result of Amended Guideline
Range (Policy Statement)), Sec. 5B1.3 (Conditions of Probation), Sec.
5H1.3 (Mental and Emotional Conditions (Policy Statement)), and Sec.
5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or
Abuse; Gambling Addiction (Policy Statement)).
Chapter Seven (Violations of Probation and Supervised Release)
The amendment revises Chapter Seven of the Guidelines Manual in two
main ways to underscore the different purposes of probation and
supervised release. First, it divides Chapter Seven into Part B
(Violations of Probation) and Part C (Violations of Supervised Release)
to reflect that probation serves all the goals of sentencing, including
punishment, while supervised release primarily ``fulfills
rehabilitative ends, distinct from those served by incarceration.''
United States v. Johnson, 529 U.S. 53, 59 (2000). Second, it responds
to stakeholder feedback on the need for a more flexible, individualized
approach to supervised release violations by encouraging courts to
consider a graduated response to a defendant's non-compliant behavior.
Chapter Seven--Part A (Introduction to Chapter Seven)
The amendment revises the Introduction to Chapter Seven to explain
the Commission's updated approach that treats violations of probation
and supervised release differently. To highlight the primarily
rehabilitative purposes of supervised release, the new introductory
language encourages courts to consider graduated responses to non-
compliant behavior before revoking supervised release. The Commission
believes that a graduated approach will better allocate resources,
promote public safety, and facilitate the reentry and rehabilitation of
defendants on supervised release.
Chapter Seven--Part B (Violations of Probation)
The amendment removes references to supervised release from Chapter
Seven, Part B and adds an example to the commentary of Sec. 7B1.4
(criminal history calculation) that mirrors an addition to the
commentary of new Sec. 7C1.5. The provisions in Chapter Seven, Part B
are otherwise unchanged, reflecting the Commission's determination that
violations of probation and supervised release should be treated
differently.
Chapter Seven--Part C (Violations of Supervised Release), Introductory
Commentary
The amendment includes Introductory Commentary to new Part C of
Chapter Seven, which explains that in responding to a report of non-
compliance, addressing a violation found during revocation proceedings,
or imposing a sentence upon revocation, the court should conduct the
same kind of individualized assessment used when imposing supervised
release. The introduction highlights the Commission's view that courts
should consider a wide array of options to address violations of
supervised release and that any sentence imposed upon revocation should
be tailored to address the failure to abide by supervision conditions,
as imposition of an appropriate punishment for new criminal conduct is
not the primary goal of a revocation sentence.
New Sec. 7C1.1 (Classification of Violations (Policy Statement)) and
Sec. 7C1.2 (Reporting of Violations of Supervised Release (Policy
Statement))
The amendment duplicates Sec. Sec. 7B1.1 and 7B1.2 into new
Sec. Sec. 7C1.1 and 7C1.2 and retains the three existing grades of
supervised release violations.
Sec. 7C1.3 (Responses to Violations of Supervised Release (Policy
Statement))
New Sec. 7C1.3 identifies actions a court may take in response to
a report of non-compliance with supervised release conditions or a
finding of a violation. This new policy statement underscores the
importance of using a graduated response to non-compliant behavior.
Subsection (a) instructs the court to conduct an individualized
assessment to determine what, if any, response is appropriate to a
report of non-compliance. New Sec. 7C1.3(a) reflects feedback that
supervision is a dynamic process and often benefits from regular
[[Page 19818]]
communication between the defendant, the probation officer, and the
court.
Subsection (b) instructs the court to (1) revoke supervised release
upon a finding of a violation for which revocation is required by
statute, and (2) upon a finding of any other violation, conduct an
individualized assessment, taking into consideration the grade of the
violation, to determine whether to revoke supervised release for any
other violation. New Sec. 7C1.3(b) further provides that revocation is
generally appropriate for a Grade A violation, often appropriate for a
Grade B violation, and may be appropriate for a Grade C violation.
While revocation previously was required for both Grade A or B
violations--and Commission data shows similar rates of prison-only
revocations for both grades in recent years, see U.S. Sent'g Comm.,
Federal Probation and Supervised Release Violations 35 & Fig.13
(2020)--the amendment provides flexibility to assess the seriousness of
the underlying conduct and account for any jurisdictional differences
affecting the grade assigned to similar conduct.
For both reports of non-compliance and findings of a violation,
Application Note 2 references the court's authority to ``take any
appropriate action provided under 18 U.S.C. 3583'' and lists certain
informal responses the court also may consider.
New Application Note 3 encourages the court to consider issuing a
summons, rather than an arrest warrant, when appropriate, reflecting
concerns that an arrest may result in unnecessary collateral
consequences.
Sec. 7C1.4 (Revocation of Supervised Release (Policy Statement))
The amendment adds new Sec. 7C1.4, which, in subsection (a),
instructs the court to conduct an individualized assessment to
determine the appropriate length of the term of imprisonment upon
revocation, given the recommended ranges set forth in Sec. 7C1.5 (Term
of Imprisonment--Supervised Release (Policy Statement)).
Subsection (b) directs that any term of imprisonment ``generally
should'' be ordered to be served consecutively to any sentence of
imprisonment that the defendant is currently serving. This language
replaces the former instruction that terms of imprisonment upon
revocation ``shall'' be ordered to be served consecutively. This new
provision continues to underscore the seriousness of violation conduct
while reserving flexibility for courts to run sentences concurrently in
extraordinary cases where justified.
Subsection (c) retains the instruction from the prior version of
Sec. 7B1.3(g)(2) which, consistent with 18 U.S.C. 3583(h), allows a
court to reimpose a term of supervised release upon release from a term
of imprisonment imposed upon revocation.
New Application Note 3 adopts and modifies Sec. 7B1.3(c)(3) to
state that ``[i]n the case of a revocation based, at least in part, on
a violation of a condition specifically pertaining to community
confinement, intermittent confinement, or home detention, use of the
same or a less restrictive sanction generally is not recommended''
(emphasis added).
New Application Note 4 adopts and modifies Sec. 7B1.3(d) to
instruct that sentencing obligations that remain unpaid or unserved at
the time of revocation ``should'' be ordered to be paid or served in
addition to any sentence imposed upon revocation.
Sec. 7C1.5 (Term of Imprisonment--Supervised Release (Policy
Statement))
The new Sec. 7C1.5 adopts and modifies Sec. 7B1.4 to set forth
the Supervised Release Revocation Table and affirms the importance of
conducting an individualized assessment to determine the length of a
revocation sentence, in addition to consulting the recommended ranges
in the Supervised Release Revocation Table.
The amendment adds an example to Application Note 1 to clarify that
a defendant's criminal history category for purposes of determining the
applicable range of imprisonment is not recalculated to reflect an
amendment made retroactive under Sec. 1B1.10 (Reduction of
Imprisonment as a Result of Amended Guideline Range (Policy
Statement)). It adds the same example to the commentary to Sec. 7B1.4
(Term of Imprisonment--Probation (Policy Statement)).
Sec. 7C1.6 (No Credit for Time Under Supervision (Policy Statement))
The amendment adds Sec. 7C1.6, which duplicates Sec. 7B1.5(b) and
(c).
5. Amendment: Chapter One is amended by striking Part A as follows:
``Part A--Introduction and Authority
Introductory Commentary
Subparts 1 and 2 of this Part provide an introduction to the
Guidelines Manual describing the historical development and evolution
of the federal sentencing guidelines. Subpart 1 sets forth the original
introduction to the Guidelines Manual as it first appeared in 1987,
with the inclusion of amendments made occasionally thereto between 1987
and 2000. The original introduction, as so amended, explained a number
of policy decisions made by the United States Sentencing Commission
(`Commission') when it promulgated the initial set of guidelines and
therefore provides a useful reference for contextual and historical
purposes. Subpart 2 further describes the evolution of the federal
sentencing guidelines after the initial guidelines were promulgated.
Subpart 3 of this Part states the authority of the Commission to
promulgate federal sentencing guidelines, policy statements, and
commentary.
1. Original Introduction to the Guidelines Manual
The following provisions of this Subpart set forth the original
introduction to this manual, effective November 1, 1987, and as amended
through November 1, 2000:
1. Authority
The United States Sentencing Commission (`Commission') is an
independent agency in the judicial branch composed of seven voting and
two non-voting, ex officio members. Its principal purpose is to
establish sentencing policies and practices for the federal criminal
justice system that will assure the ends of justice by promulgating
detailed guidelines prescribing the appropriate sentences for offenders
convicted of federal crimes.
The guidelines and policy statements promulgated by the Commission
are issued pursuant to Section 994(a) of Title 28, United States Code.
2. The Statutory Mission
The Sentencing Reform Act of 1984 (Title II of the Comprehensive
Crime Control Act of 1984) provides for the development of guidelines
that will further the basic purposes of criminal punishment:
deterrence, incapacitation, just punishment, and rehabilitation. The
Act delegates broad authority to the Commission to review and
rationalize the federal sentencing process.
The Act contains detailed instructions as to how this determination
should be made, the most important of which directs the Commission to
create categories of offense behavior and offender characteristics. An
offense behavior category might consist, for example, of `bank robbery/
committed with a gun/$2500 taken.' An offender characteristic category
might be `offender with one prior conviction not resulting in
imprisonment.' The Commission is required to prescribe guideline ranges
that specify an appropriate sentence for each class of convicted
persons determined by
[[Page 19819]]
coordinating the offense behavior categories with the offender
characteristic categories. Where the guidelines call for imprisonment,
the range must be narrow: the maximum of the range cannot exceed the
minimum by more than the greater of 25 percent or six months. 28 U.S.C.
994(b)(2).
Pursuant to the Act, the sentencing court must select a sentence
from within the guideline range. If, however, a particular case
presents atypical features, the Act allows the court to depart from the
guidelines and sentence outside the prescribed range. In that case, the
court must specify reasons for departure. 18 U.S.C. 3553(b). If the
court sentences within the guideline range, an appellate court may
review the sentence to determine whether the guidelines were correctly
applied. If the court departs from the guideline range, an appellate
court may review the reasonableness of the departure. 18 U.S.C. 3742.
The Act also abolishes parole, and substantially reduces and
restructures good behavior adjustments.
The Commission's initial guidelines were submitted to Congress on
April 13, 1987. After the prescribed period of Congressional review,
the guidelines took effect on November 1, 1987, and apply to all
offenses committed on or after that date. The Commission has the
authority to submit guideline amendments each year to Congress between
the beginning of a regular Congressional session and May 1. Such
amendments automatically take effect 180 days after submission unless a
law is enacted to the contrary. 28 U.S.C. 994(p).
The initial sentencing guidelines and policy statements were
developed after extensive hearings, deliberation, and consideration of
substantial public comment. The Commission emphasizes, however, that it
views the guideline-writing process as evolutionary. It expects, and
the governing statute anticipates, that continuing research,
experience, and analysis will result in modifications and revisions to
the guidelines through submission of amendments to Congress. To this
end, the Commission is established as a permanent agency to monitor
sentencing practices in the federal courts.
3. The Basic Approach (Policy Statement)
To understand the guidelines and their underlying rationale, it is
important to focus on the three objectives that Congress sought to
achieve in enacting the Sentencing Reform Act of 1984. The Act's basic
objective was to enhance the ability of the criminal justice system to
combat crime through an effective, fair sentencing system. To achieve
this end, Congress first sought honesty in sentencing. It sought to
avoid the confusion and implicit deception that arose out of the pre-
guidelines sentencing system which required the court to impose an
indeterminate sentence of imprisonment and empowered the parole
commission to determine how much of the sentence an offender actually
would serve in prison. This practice usually resulted in a substantial
reduction in the effective length of the sentence imposed, with
defendants often serving only about one-third of the sentence imposed
by the court.
Second, Congress sought reasonable uniformity in sentencing by
narrowing the wide disparity in sentences imposed for similar criminal
offenses committed by similar offenders. Third, Congress sought
proportionality in sentencing through a system that imposes
appropriately different sentences for criminal conduct of differing
severity.
Honesty is easy to achieve: the abolition of parole makes the
sentence imposed by the court the sentence the offender will serve,
less approximately fifteen percent for good behavior. There is a
tension, however, between the mandate of uniformity and the mandate of
proportionality. Simple uniformity--sentencing every offender to five
years--destroys proportionality. Having only a few simple categories of
crimes would make the guidelines uniform and easy to administer, but
might lump together offenses that are different in important respects.
For example, a single category for robbery that included armed and
unarmed robberies, robberies with and without injuries, robberies of a
few dollars and robberies of millions, would be far too broad.
A sentencing system tailored to fit every conceivable wrinkle of
each case would quickly become unworkable and seriously compromise the
certainty of punishment and its deterrent effect. For example: a bank
robber with (or without) a gun, which the robber kept hidden (or
brandished), might have frightened (or merely warned), injured
seriously (or less seriously), tied up (or simply pushed) a guard,
teller, or customer, at night (or at noon), in an effort to obtain
money for other crimes (or for other purposes), in the company of a few
(or many) other robbers, for the first (or fourth) time.
The list of potentially relevant features of criminal behavior is
long; the fact that they can occur in multiple combinations means that
the list of possible permutations of factors is virtually endless. The
appropriate relationships among these different factors are exceedingly
difficult to establish, for they are often context specific. Sentencing
courts do not treat the occurrence of a simple bruise identically in
all cases, irrespective of whether that bruise occurred in the context
of a bank robbery or in the context of a breach of peace. This is so,
in part, because the risk that such a harm will occur differs depending
on the underlying offense with which it is connected; and also because,
in part, the relationship between punishment and multiple harms is not
simply additive. The relation varies depending on how much other harm
has occurred. Thus, it would not be proper to assign points for each
kind of harm and simply add them up, irrespective of context and total
amounts.
The larger the number of subcategories of offense and offender
characteristics included in the guidelines, the greater the complexity
and the less workable the system. Moreover, complex combinations of
offense and offender characteristics would apply and interact in
unforeseen ways to unforeseen situations, thus failing to cure the
unfairness of a simple, broad category system. Finally, and perhaps
most importantly, probation officers and courts, in applying a complex
system having numerous subcategories, would be required to make a host
of decisions regarding whether the underlying facts were sufficient to
bring the case within a particular subcategory. The greater the number
of decisions required and the greater their complexity, the greater the
risk that different courts would apply the guidelines differently to
situations that, in fact, are similar, thereby reintroducing the very
disparity that the guidelines were designed to reduce.
In view of the arguments, it would have been tempting to retreat to
the simple, broad category approach and to grant courts the discretion
to select the proper point along a broad sentencing range. Granting
such broad discretion, however, would have risked correspondingly broad
disparity in sentencing, for different courts may exercise their
discretionary powers in different ways. Such an approach would have
risked a return to the wide disparity that Congress established the
Commission to reduce and would have been contrary to the Commission's
mandate set forth in the Sentencing Reform Act of 1984.
In the end, there was no completely satisfying solution to this
problem. The Commission had to balance the comparative virtues and
vices of broad, simple categorization and detailed,
[[Page 19820]]
complex subcategorization, and within the constraints established by
that balance, minimize the discretionary powers of the sentencing
court. Any system will, to a degree, enjoy the benefits and suffer from
the drawbacks of each approach.
A philosophical problem arose when the Commission attempted to
reconcile the differing perceptions of the purposes of criminal
punishment. Most observers of the criminal law agree that the ultimate
aim of the law itself, and of punishment in particular, is the control
of crime. Beyond this point, however, the consensus seems to break
down. Some argue that appropriate punishment should be defined
primarily on the basis of the principle of `just deserts.' Under this
principle, punishment should be scaled to the offender's culpability
and the resulting harms. Others argue that punishment should be imposed
primarily on the basis of practical `crime control' considerations.
This theory calls for sentences that most effectively lessen the
likelihood of future crime, either by deterring others or
incapacitating the defendant.
Adherents of each of these points of view urged the Commission to
choose between them and accord one primacy over the other. As a
practical matter, however, this choice was unnecessary because in most
sentencing decisions the application of either philosophy will produce
the same or similar results.
In its initial set of guidelines, the Commission sought to solve
both the practical and philosophical problems of developing a coherent
sentencing system by taking an empirical approach that used as a
starting point data estimating pre-guidelines sentencing practice. It
analyzed data drawn from 10,000 presentence investigations, the
differing elements of various crimes as distinguished in substantive
criminal statutes, the United States Parole Commission's guidelines and
statistics, and data from other relevant sources in order to determine
which distinctions were important in pre-guidelines practice. After
consideration, the Commission accepted, modified, or rationalized these
distinctions.
This empirical approach helped the Commission resolve its practical
problem by defining a list of relevant distinctions that, although of
considerable length, was short enough to create a manageable set of
guidelines. Existing categories are relatively broad and omit
distinctions that some may believe important, yet they include most of
the major distinctions that statutes and data suggest made a
significant difference in sentencing decisions. Relevant distinctions
not reflected in the guidelines probably will occur rarely and
sentencing courts may take such unusual cases into account by departing
from the guidelines.
The Commission's empirical approach also helped resolve its
philosophical dilemma. Those who adhere to a just deserts philosophy
may concede that the lack of consensus might make it difficult to say
exactly what punishment is deserved for a particular crime. Likewise,
those who subscribe to a philosophy of crime control may acknowledge
that the lack of sufficient data might make it difficult to determine
exactly the punishment that will best prevent that crime. Both groups
might therefore recognize the wisdom of looking to those distinctions
that judges and legislators have, in fact, made over the course of
time. These established distinctions are ones that the community
believes, or has found over time, to be important from either a just
deserts or crime control perspective.
The Commission did not simply copy estimates of pre-guidelines
practice as revealed by the data, even though establishing offense
values on this basis would help eliminate disparity because the data
represent averages. Rather, it departed from the data at different
points for various important reasons. Congressional statutes, for
example, suggested or required departure, as in the case of the Anti-
Drug Abuse Act of 1986 that imposed increased and mandatory minimum
sentences. In addition, the data revealed inconsistencies in treatment,
such as punishing economic crime less severely than other apparently
equivalent behavior.
Despite these policy-oriented departures from pre-guidelines
practice, the guidelines represent an approach that begins with, and
builds upon, empirical data. The guidelines will not please those who
wish the Commission to adopt a single philosophical theory and then
work deductively to establish a simple and perfect set of
categorizations and distinctions. The guidelines may prove acceptable,
however, to those who seek more modest, incremental improvements in the
status quo, who believe the best is often the enemy of the good, and
who recognize that these guidelines are, as the Act contemplates, but
the first step in an evolutionary process. After spending considerable
time and resources exploring alternative approaches, the Commission
developed these guidelines as a practical effort toward the achievement
of a more honest, uniform, equitable, proportional, and therefore
effective sentencing system.
4. The Guidelines' Resolution of Major Issues (Policy Statement)
The guideline-drafting process required the Commission to resolve a
host of important policy questions typically involving rather evenly
balanced sets of competing considerations. As an aid to understanding
the guidelines, this introduction briefly discusses several of those
issues; commentary in the guidelines explains others.
(a) Real Offense vs. Charge Offense Sentencing.
One of the most important questions for the Commission to decide
was whether to base sentences upon the actual conduct in which the
defendant engaged regardless of the charges for which he was indicted
or convicted (`real offense' sentencing), or upon the conduct that
constitutes the elements of the offense for which the defendant was
charged and of which he was convicted (`charge offense' sentencing). A
bank robber, for example, might have used a gun, frightened bystanders,
taken $50,000, injured a teller, refused to stop when ordered, and
raced away damaging property during his escape. A pure real offense
system would sentence on the basis of all identifiable conduct. A pure
charge offense system would overlook some of the harms that did not
constitute statutory elements of the offenses of which the defendant
was convicted.
The Commission initially sought to develop a pure real offense
system. After all, the pre-guidelines sentencing system was, in a
sense, this type of system. The sentencing court and the parole
commission took account of the conduct in which the defendant actually
engaged, as determined in a presentence report, at the sentencing
hearing, or before a parole commission hearing officer. The
Commission's initial efforts in this direction, carried out in the
spring and early summer of 1986, proved unproductive, mostly for
practical reasons. To make such a system work, even to formalize and
rationalize the status quo, would have required the Commission to
decide precisely which harms to take into account, how to add them up,
and what kinds of procedures the courts should use to determine the
presence or absence of disputed factual elements. The Commission found
no practical way to combine and account for the large number of diverse
harms arising in different circumstances; nor did it find a practical
way to reconcile the need for a fair adjudicatory procedure with the
need for a speedy sentencing process
[[Page 19821]]
given the potential existence of hosts of adjudicated `real harm' facts
in many typical cases. The effort proposed as a solution to these
problems required the use of, for example, quadratic roots and other
mathematical operations that the Commission considered too complex to
be workable. In the Commission's view, such a system risked return to
wide disparity in sentencing practice.
In its initial set of guidelines submitted to Congress in April
1987, the Commission moved closer to a charge offense system. This
system, however, does contain a significant number of real offense
elements. For one thing, the hundreds of overlapping and duplicative
statutory provisions that make up the federal criminal law forced the
Commission to write guidelines that are descriptive of generic conduct
rather than guidelines that track purely statutory language. For
another, the guidelines take account of a number of important, commonly
occurring real offense elements such as role in the offense, the
presence of a gun, or the amount of money actually taken, through
alternative base offense levels, specific offense characteristics,
cross references, and adjustments.
The Commission recognized that a charge offense system has
drawbacks of its own. One of the most important is the potential it
affords prosecutors to influence sentences by increasing or decreasing
the number of counts in an indictment. Of course, the defendant's
actual conduct (that which the prosecutor can prove in court) imposes a
natural limit upon the prosecutor's ability to increase a defendant's
sentence. Moreover, the Commission has written its rules for the
treatment of multicount convictions with an eye toward eliminating
unfair treatment that might flow from count manipulation. For example,
the guidelines treat a three-count indictment, each count of which
charges sale of 100 grams of heroin or theft of $10,000, the same as a
single-count indictment charging sale of 300 grams of heroin or theft
of $30,000. Furthermore, a sentencing court may control any
inappropriate manipulation of the indictment through use of its
departure power. Finally, the Commission will closely monitor charging
and plea agreement practices and will make appropriate adjustments
should they become necessary.
(b) Departures.
The sentencing statute permits a court to depart from a guideline-
specified sentence only when it finds `an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that
described.' 18 U.S.C. 3553(b). The Commission intends the sentencing
courts to treat each guideline as carving out a `heartland,' a set of
typical cases embodying the conduct that each guideline describes. When
a court finds an atypical case, one to which a particular guideline
linguistically applies but where conduct significantly differs from the
norm, the court may consider whether a departure is warranted. Section
5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic
Status), Sec. 5H1.12 (Lack of Guidance as a Youth and Similar
Circumstances), the third sentence of Sec. 5H1.4 (Physical Condition,
Including Drug or Alcohol Dependence or Abuse), the last sentence of
Sec. 5K2.12 (Coercion and Duress), and Sec. 5K2.19 (Post-Sentencing
Rehabilitative Efforts)* list several factors that the court cannot
take into account as grounds for departure. With those specific
exceptions, however, the Commission does not intend to limit the kinds
of factors, whether or not mentioned anywhere else in the guidelines,
that could constitute grounds for departure in an unusual case.
* Note: Section 5K2.19 (Post-Sentencing Rehabilitative Efforts)
was deleted by Amendment 768, effective November 1, 2012. (See USSG
App. C, amendment 768.)
The Commission has adopted this departure policy for two reasons.
First, it is difficult to prescribe a single set of guidelines that
encompasses the vast range of human conduct potentially relevant to a
sentencing decision. The Commission also recognizes that the initial
set of guidelines need not do so. The Commission is a permanent body,
empowered by law to write and rewrite guidelines, with progressive
changes, over many years. By monitoring when courts depart from the
guidelines and by analyzing their stated reasons for doing so and court
decisions with references thereto, the Commission, over time, will be
able to refine the guidelines to specify more precisely when departures
should and should not be permitted.
Second, the Commission believes that despite the courts' legal
freedom to depart from the guidelines, they will not do so very often.
This is because the guidelines, offense by offense, seek to take
account of those factors that the Commission's data indicate made a
significant difference in pre-guidelines sentencing practice. Thus, for
example, where the presence of physical injury made an important
difference in pre-guidelines sentencing practice (as in the case of
robbery or assault), the guidelines specifically include this factor to
enhance the sentence. Where the guidelines do not specify an
augmentation or diminution, this is generally because the sentencing
data did not permit the Commission to conclude that the factor was
empirically important in relation to the particular offense. Of course,
an important factor (e.g., physical injury) may infrequently occur in
connection with a particular crime (e.g., fraud). Such rare occurrences
are precisely the type of events that the courts' departure powers were
designed to cover--unusual cases outside the range of the more typical
offenses for which the guidelines were designed.
It is important to note that the guidelines refer to two different
kinds of departure. The first involves instances in which the
guidelines provide specific guidance for departure by analogy or by
other numerical or non-numerical suggestions. The Commission intends
such suggestions as policy guidance for the courts. The Commission
expects that most departures will reflect the suggestions and that the
courts of appeals may prove more likely to find departures
`unreasonable' where they fall outside suggested levels.
A second type of departure will remain unguided. It may rest upon
grounds referred to in Chapter Five, Part K (Departures) or on grounds
not mentioned in the guidelines. While Chapter Five, Part K lists
factors that the Commission believes may constitute grounds for
departure, the list is not exhaustive. The Commission recognizes that
there may be other grounds for departure that are not mentioned; it
also believes there may be cases in which a departure outside suggested
levels is warranted. In its view, however, such cases will be highly
infrequent.
(c) Plea Agreements.
Nearly ninety percent of all federal criminal cases involve guilty
pleas and many of these cases involve some form of plea agreement. Some
commentators on early Commission guideline drafts urged the Commission
not to attempt any major reforms of the plea agreement process on the
grounds that any set of guidelines that threatened to change pre-
guidelines practice radically also threatened to make the federal
system unmanageable. Others argued that guidelines that failed to
control and limit plea agreements would leave untouched a `loophole'
large enough to undo the good that sentencing guidelines would bring.
The Commission decided not to make major changes in plea agreement
practices in the initial guidelines, but rather to provide guidance by
issuing
[[Page 19822]]
general policy statements concerning the acceptance of plea agreements
in Chapter Six, Part B (Plea Agreements). The rules set forth in Fed.
R. Crim. P. 11(e) govern the acceptance or rejection of such
agreements. The Commission will collect data on the courts' plea
practices and will analyze this information to determine when and why
the courts accept or reject plea agreements and whether plea agreement
practices are undermining the intent of the Sentencing Reform Act. In
light of this information and analysis, the Commission will seek to
further regulate the plea agreement process as appropriate.
Importantly, if the policy statements relating to plea agreements are
followed, circumvention of the Sentencing Reform Act and the guidelines
should not occur.
The Commission expects the guidelines to have a positive,
rationalizing impact upon plea agreements for two reasons. First, the
guidelines create a clear, definite expectation in respect to the
sentence that a court will impose if a trial takes place. In the event
a prosecutor and defense attorney explore the possibility of a
negotiated plea, they will no longer work in the dark. This fact alone
should help to reduce irrationality in respect to actual sentencing
outcomes. Second, the guidelines create a norm to which courts will
likely refer when they decide whether, under Rule 11(e), to accept or
to reject a plea agreement or recommendation.
(d) Probation and Split Sentences.
The statute provides that the guidelines are to `reflect the
general appropriateness of imposing a sentence other than imprisonment
in cases in which the defendant is a first offender who has not been
convicted of a crime of violence or an otherwise serious offense . . .
.' 28 U.S.C. 994(j). Under pre-guidelines sentencing practice, courts
sentenced to probation an inappropriately high percentage of offenders
guilty of certain economic crimes, such as theft, tax evasion,
antitrust offenses, insider trading, fraud, and embezzlement, that in
the Commission's view are `serious.'
The Commission's solution to this problem has been to write
guidelines that classify as serious many offenses for which probation
previously was frequently given and provide for at least a short period
of imprisonment in such cases. The Commission concluded that the
definite prospect of prison, even though the term may be short, will
serve as a significant deterrent, particularly when compared with pre-
guidelines practice where probation, not prison, was the norm.
More specifically, the guidelines work as follows in respect to a
first offender. For offense levels one through eight, the sentencing
court may elect to sentence the offender to probation (with or without
confinement conditions) or to a prison term. For offense levels nine
and ten, the court may substitute probation for a prison term, but the
probation must include confinement conditions (community confinement,
intermittent confinement, or home detention). For offense levels eleven
and twelve, the court must impose at least one-half the minimum
confinement sentence in the form of prison confinement, the remainder
to be served on supervised release with a condition of community
confinement or home detention.* The Commission, of course, has not
dealt with the single acts of aberrant behavior that still may justify
probation at higher offense levels through departures.**
* Note: The Commission expanded Zones B and C of the Sentencing
Table in 2010 to provide a greater range of sentencing options to
courts with respect to certain offenders. (See USSG App. C,
amendment 738.) In 2018, the Commission added a new application note
to the Commentary to Sec. 5C1.1 (Imposition of a Term of
Imprisonment), stating that if a defendant is a `nonviolent first
offender and the applicable guideline range is in Zone A or B of the
Sentencing Table, the court should consider imposing a sentence
other than a sentence of imprisonment.' (See USSG App. C, amendment
801.) In 2023, the Commission added a new Chapter Four guideline, at
Sec. 4C1.1 (Adjustment for Certain Zero-Point Offenders), providing
a decrease of 2 levels from the offense level determined under
Chapters Two and Three for `zero-point' offenders who meet certain
criteria. In addition, the Commission further amended the Commentary
to Sec. 5C1.1 to address the alternatives to incarceration
available to `zero-point' offenders by revising the application note
in Sec. 5C1.1 that addressed `nonviolent first offenders' to focus
on `zero-point' offenders. (See USSG App. C, amendment 821.)
** Note: Although the Commission had not addressed `single acts
of aberrant behavior' at the time the Introduction to the Guidelines
Manual originally was written, it subsequently addressed the issue
in Amendment 603, effective November 1, 2000. (See USSG App. C,
amendment 603.)
(e) Multi-Count Convictions.
The Commission, like several state sentencing commissions, has
found it particularly difficult to develop guidelines for sentencing
defendants convicted of multiple violations of law, each of which makes
up a separate count in an indictment. The difficulty is that when a
defendant engages in conduct that causes several harms, each additional
harm, even if it increases the extent to which punishment is warranted,
does not necessarily warrant a proportionate increase in punishment. A
defendant who assaults others during a fight, for example, may warrant
more punishment if he injures ten people than if he injures one, but
his conduct does not necessarily warrant ten times the punishment. If
it did, many of the simplest offenses, for reasons that are often
fortuitous, would lead to sentences of life imprisonment--sentences
that neither just deserts nor crime control theories of punishment
would justify.
Several individual guidelines provide special instructions for
increasing punishment when the conduct that is the subject of that
count involves multiple occurrences or has caused several harms. The
guidelines also provide general rules for aggravating punishment in
light of multiple harms charged separately in separate counts. These
rules may produce occasional anomalies, but normally they will permit
an appropriate degree of aggravation of punishment for multiple
offenses that are the subjects of separate counts.
These rules are set out in Chapter Three, Part D (Multiple Counts).
They essentially provide: (1) when the conduct involves fungible items
(e.g., separate drug transactions or thefts of money), the amounts are
added and the guidelines apply to the total amount; (2) when
nonfungible harms are involved, the offense level for the most serious
count is increased (according to a diminishing scale) to reflect the
existence of other counts of conviction. The guidelines have been
written in order to minimize the possibility that an arbitrary casting
of a single transaction into several counts will produce a longer
sentence. In addition, the sentencing court will have adequate power to
prevent such a result through departures.
(f) Regulatory Offenses.
Regulatory statutes, though primarily civil in nature, sometimes
contain criminal provisions in respect to particularly harmful
activity. Such criminal provisions often describe not only substantive
offenses, but also more technical, administratively-related offenses
such as failure to keep accurate records or to provide requested
information. These statutes pose two problems: first, which criminal
regulatory provisions should the Commission initially consider, and
second, how should it treat technical or administratively-related
criminal violations?
In respect to the first problem, the Commission found that it could
not comprehensively treat all regulatory
[[Page 19823]]
violations in the initial set of guidelines. There are hundreds of such
provisions scattered throughout the United States Code. To find all
potential violations would involve examination of each individual
federal regulation. Because of this practical difficulty, the
Commission sought to determine, with the assistance of the Department
of Justice and several regulatory agencies, which criminal regulatory
offenses were particularly important in light of the need for
enforcement of the general regulatory scheme. The Commission addressed
these offenses in the initial guidelines.
In respect to the second problem, the Commission has developed a
system for treating technical recordkeeping and reporting offenses that
divides them into four categories. First, in the simplest of cases, the
offender may have failed to fill out a form intentionally, but without
knowledge or intent that substantive harm would likely follow. He might
fail, for example, to keep an accurate record of toxic substance
transport, but that failure may not lead, nor be likely to lead, to the
release or improper handling of any toxic substance. Second, the same
failure may be accompanied by a significant likelihood that substantive
harm will occur; it may make a release of a toxic substance more
likely. Third, the same failure may have led to substantive harm.
Fourth, the failure may represent an effort to conceal a substantive
harm that has occurred.
The structure of a typical guideline for a regulatory offense
provides a low base offense level (e.g., 6) aimed at the first type of
recordkeeping or reporting offense. Specific offense characteristics
designed to reflect substantive harms that do occur in respect to some
regulatory offenses, or that are likely to occur, increase the offense
level. A specific offense characteristic also provides that a
recordkeeping or reporting offense that conceals a substantive offense
will have the same offense level as the substantive offense.
(g) Sentencing Ranges.
In determining the appropriate sentencing ranges for each offense,
the Commission estimated the average sentences served within each
category under the pre-guidelines sentencing system. It also examined
the sentences specified in federal statutes, in the parole guidelines,
and in other relevant, analogous sources. The Commission's
Supplementary Report on the Initial Sentencing Guidelines (1987)
contains a comparison between estimates of pre-guidelines sentencing
practice and sentences under the guidelines.
While the Commission has not considered itself bound by pre-
guidelines sentencing practice, it has not attempted to develop an
entirely new system of sentencing on the basis of theory alone.
Guideline sentences, in many instances, will approximate average pre-
guidelines practice and adherence to the guidelines will help to
eliminate wide disparity. For example, where a high percentage of
persons received probation under pre-guidelines practice, a guideline
may include one or more specific offense characteristics in an effort
to distinguish those types of defendants who received probation from
those who received more severe sentences. In some instances, short
sentences of incarceration for all offenders in a category have been
substituted for a pre-guidelines sentencing practice of very wide
variability in which some defendants received probation while others
received several years in prison for the same offense. Moreover,
inasmuch as those who pleaded guilty under pre-guidelines practice
often received lesser sentences, the guidelines permit the court to
impose lesser sentences on those defendants who accept responsibility
for their misconduct. For defendants who provide substantial assistance
to the government in the investigation or prosecution of others, a
downward departure may be warranted.
The Commission has also examined its sentencing ranges in light of
their likely impact upon prison population. Specific legislation, such
as the Anti-Drug Abuse Act of 1986 and the career offender provisions
of the Sentencing Reform Act of 1984 (28 U.S.C. 994(h)), required the
Commission to promulgate guidelines that will lead to substantial
prison population increases. These increases will occur irrespective of
the guidelines. The guidelines themselves, insofar as they reflect
policy decisions made by the Commission (rather than legislated
mandatory minimum or career offender sentences), are projected to lead
to an increase in prison population that computer models, produced by
the Commission and the Bureau of Prisons in 1987, estimated at
approximately 10 percent over a period of ten years.
(h) The Sentencing Table.
The Commission has established a sentencing table that for
technical and practical reasons contains 43 levels. Each level in the
table prescribes ranges that overlap with the ranges in the preceding
and succeeding levels. By overlapping the ranges, the table should
discourage unnecessary litigation. Both prosecution and defense will
realize that the difference between one level and another will not
necessarily make a difference in the sentence that the court imposes.
Thus, little purpose will be served in protracted litigation trying to
determine, for example, whether $10,000 or $11,000 was obtained as a
result of a fraud. At the same time, the levels work to increase a
sentence proportionately. A change of six levels roughly doubles the
sentence irrespective of the level at which one starts. The guidelines,
in keeping with the statutory requirement that the maximum of any range
cannot exceed the minimum by more than the greater of 25 percent or six
months (28 U.S.C. 994(b)(2)), permit courts to exercise the greatest
permissible range of sentencing discretion. The table overlaps offense
levels meaningfully, works proportionately, and at the same time
preserves the maximum degree of allowable discretion for the court
within each level.
Similarly, many of the individual guidelines refer to tables that
correlate amounts of money with offense levels. These tables often have
many rather than a few levels. Again, the reason is to minimize the
likelihood of unnecessary litigation. If a money table were to make
only a few distinctions, each distinction would become more important
and litigation over which category an offender fell within would become
more likely. Where a table has many small monetary distinctions, it
minimizes the likelihood of litigation because the precise amount of
money involved is of considerably less importance.
5. A Concluding Note
The Commission emphasizes that it drafted the initial guidelines
with considerable caution. It examined the many hundreds of criminal
statutes in the United States Code. It began with those that were the
basis for a significant number of prosecutions and sought to place them
in a rational order. It developed additional distinctions relevant to
the application of these provisions and it applied sentencing ranges to
each resulting category. In doing so, it relied upon pre-guidelines
sentencing practice as revealed by its own statistical analyses based
on summary reports of some 40,000 convictions, a sample of 10,000
augmented presentence reports, the parole guidelines, and policy
judgments.
The Commission recognizes that some will criticize this approach as
overly cautious, as representing too little a departure from pre-
guidelines sentencing practice. Yet, it will cure wide disparity. The
Commission is a permanent body that can amend the guidelines each year.
Although the data available to it, like all data, are
[[Page 19824]]
imperfect, experience with the guidelines will lead to additional
information and provide a firm empirical basis for consideration of
revisions.
Finally, the guidelines will apply to more than 90 percent of all
felony and Class A misdemeanor cases in the federal courts. Because of
time constraints and the nonexistence of statistical information, some
offenses that occur infrequently are not considered in the guidelines.
Their exclusion does not reflect any judgment regarding their
seriousness and they will be addressed as the Commission refines the
guidelines over time.
2. Continuing Evolution and Role of the Guidelines
The Sentencing Reform Act of 1984 changed the course of federal
sentencing. Among other things, the Act created the United States
Sentencing Commission as an independent agency in the Judicial Branch,
and directed it to develop guidelines and policy statements for
sentencing courts to use when sentencing offenders convicted of federal
crimes. Moreover, it empowered the Commission with ongoing
responsibilities to monitor the guidelines, submit to Congress
appropriate modifications of the guidelines and recommended changes in
criminal statutes, and establish education and research programs. The
mandate rested on congressional awareness that sentencing is a dynamic
field that requires continuing review by an expert body to revise
sentencing policies, in light of application experience, as new
criminal statutes are enacted, and as more is learned about what
motivates and controls criminal behavior.
This statement finds resonance in a line of Supreme Court cases
that, taken together, echo two themes. The first theme is that the
guidelines are the product of a deliberative process that seeks to
embody the purposes of sentencing set forth in the Sentencing Reform
Act, and as such they continue to play an important role in the
sentencing court's determination of an appropriate sentence in a
particular case. The Supreme Court alluded to this in Mistretta v.
United States, 488 U.S. 361 (1989), which upheld the constitutionality
of both the federal sentencing guidelines and the Commission against
nondelegation and separation of powers challenges. Therein the Court
stated:
Developing proportionate penalties for hundreds of different crimes
by a virtually limitless array of offenders is precisely the sort of
intricate, labor-intensive task for which delegation to an expert body
is especially appropriate. Although Congress has delegated significant
discretion to the Commission to draw judgments from its analysis of
existing sentencing practice and alternative sentencing models, . . .
[w]e have no doubt that in the hands of the Commission `the criteria
which Congress has supplied are wholly adequate for carrying out the
general policy and purpose' of the Act.
Id. at 379 (internal quotation marks and citations omitted).
The continuing importance of the guidelines in federal sentencing
was further acknowledged by the Court in United States v. Booker, 543
U.S. 220 (2005), even as that case rendered the guidelines advisory in
nature. In Booker, the Court held that the imposition of an enhanced
sentence under the federal sentencing guidelines based on the
sentencing judge's determination of a fact (other than a prior
conviction) that was not found by the jury or admitted by the defendant
violated the Sixth Amendment. The Court reasoned that an advisory
guideline system, while lacking the mandatory features that Congress
enacted, retains other features that help to further congressional
objectives, including providing certainty and fairness in meeting the
purposes of sentencing, avoiding unwarranted sentencing disparities,
and maintaining sufficient flexibility to permit individualized
sentences when warranted. The Court concluded that an advisory
guideline system would `continue to move sentencing in Congress'
preferred direction, helping to avoid excessive sentencing disparities
while maintaining flexibility sufficient to individualize sentences
where necessary.' Id. at 264-65. An advisory guideline system continues
to assure transparency by requiring that sentences be based on
articulated reasons stated in open court that are subject to appellate
review. An advisory guideline system also continues to promote
certainty and predictability in sentencing, thereby enabling the
parties to better anticipate the likely sentence based on the
individualized facts of the case.
[…truncated; see source link]Indexed from Federal Register on May 9, 2025.
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.