Notice2025-23473
Sentencing Guidelines for United States Courts
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 19, 2025
Issuing agencies
United States Sentencing Commission
Abstract
The United States Sentencing Commission is considering promulgating amendments to the sentencing guidelines, policy statements, and commentary. This notice sets forth the proposed amendments and, for each proposed amendment, a synopsis of the issues addressed by that proposed amendment. This notice also sets forth several issues for comment, some of which are set forth together with the proposed amendments, and one of which (regarding retroactive application of proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION section of this notice.
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[Federal Register Volume 90, Number 242 (Friday, December 19, 2025)]
[Notices]
[Pages 59660-59706]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-23473]
[[Page 59659]]
Vol. 90
Friday,
No. 242
December 19, 2025
Part II
United States Sentencing Commission
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Sentencing Guidelines for United States Courts; Notice
Federal Register / Vol. 90 , No. 242 / Friday, December 19, 2025 /
Notices
[[Page 59660]]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice and request for public comment and hearing.
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SUMMARY: The United States Sentencing Commission is considering
promulgating amendments to the sentencing guidelines, policy
statements, and commentary. This notice sets forth the proposed
amendments and, for each proposed amendment, a synopsis of the issues
addressed by that proposed amendment. This notice also sets forth
several issues for comment, some of which are set forth together with
the proposed amendments, and one of which (regarding retroactive
application of proposed amendments) is set forth in the SUPPLEMENTARY
INFORMATION section of this notice.
DATES:
Written Public Comment. Written public comment regarding the
proposed amendments and issues for comment set forth in this notice,
including public comment regarding retroactive application of any of
the proposed amendments, should be received by the Commission not later
than February 10, 2026. Public comment regarding a proposed amendment
received after the close of the comment period may not be considered.
Public Hearing. The Commission may hold a public hearing regarding
the proposed amendments and issues for comment set forth in this
notice. Further information regarding any public hearing that may be
scheduled, including requirements for testifying and providing written
testimony, as well as the date, time, location, and scope of the
hearing, will be provided by the Commission on its website at
<a href="http://www.ussc.gov">www.ussc.gov</a>.
ADDRESSES: There are two methods for submitting public comment.
Electronic Submission of Comments. Comments may be submitted
electronically via the Commission's Public Comment Submission Portal at
<a href="https://comment.ussc.gov">https://comment.ussc.gov</a>. Follow the online instructions for submitting
comments.
Submission of Comments by Mail. Comments may be submitted by mail
to the following address: United States Sentencing Commission, One
Columbus Circle NE, Suite 2-500, Washington, DC 20002-8002, Attention:
Public Affairs--Proposed Amendments.
FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs
Specialist, (202) 502-4597.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day of May each
year pursuant to 28 U.S.C. 994(p).
Publication of a proposed amendment requires the affirmative vote
of at least three voting members of the Commission and is deemed to be
a request for public comment on the proposed amendment. See USSC Rules
of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote
of at least four voting members is required to promulgate an amendment
and submit it to Congress. See id. 2.2; 28 U.S.C. 994(p).
The proposed amendments in this notice are presented in one of two
formats. First, some of the amendments are proposed as specific
revisions to a guideline, policy statement, or commentary. Bracketed
text within a proposed amendment indicates a heightened interest on the
Commission's part in comment and suggestions regarding alternative
policy choices; for example, a proposed enhancement of [2][4][6] levels
indicates that the Commission is considering, and invites comment on,
alternative policy choices regarding the appropriate level of
enhancement. Similarly, bracketed text within a specific offense
characteristic or application note means that the Commission
specifically invites comment on whether the proposed provision is
appropriate. Second, the Commission has highlighted certain issues for
comment and invites suggestions on how the Commission should respond to
those issues.
In summary, the proposed amendments and issues for comment set
forth in this notice are as follows:
(1) A multi-part proposed amendment relating to drug offenses,
including (A) (i) two options for amending Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) to address the purity distinction between methamphetamine
in ``actual'' form and methamphetamine as part of a mixture; (ii)
amendments to Sec. 2D1.1 to address offenses involving ``Ice;'' and
(iii) related issues for comment; (B) amendments to Sec. 2D1.1 to
address the enactment of the Halt All Lethal Trafficking of Fentanyl
Act (HALT Fentanyl Act), which permanently scheduled ``fentanyl-related
substances,'' and a related issue for comment; and (C) amendments to
Sec. 2D1.1 to add new enhancements for offenses involving fentanyl and
fentanyl analogues, and related issues for comment.
(2) A proposed amendment to the Guidelines Manual to amend the
monetary tables and values to adjust for inflation, including the
monetary values in the fine tables for individual defendants and for
organizational defendants, and related issues for comment.
(3) A two-part proposed amendment relating to Sec. 2B1.1 (Theft,
Property Destruction, and Fraud), including (A) a proposal to
restructure the loss table at Sec. 2B1.1(b)(1) to simplify application
of the table, and related issues for comment; and (B) amendments to
Sec. 2B1.1 to revise existing specific offense characteristics and add
new specific offense characteristics to reflect the culpability of the
individual and harm to the victim, and related issues for comment.
(4) A proposed amendment to Chapter Three, Part E setting forth two
options to add a new adjustment at Sec. 3E1.2 (Post-Offense
Rehabilitation) providing a reduction if the defendant demonstrates
positive post-offense behavior or rehabilitative efforts, and related
issues for comment.
(5) A proposed amendment to the Guidelines Manual to simplify the
procedure for determining the single offense level for cases involving
multiple counts, including replacing the five guidelines in Chapter
Three, Part D with a single guideline at Sec. 3D1.1 that provides all
the steps necessary to determine the single offense level for multiple
counts, and related issues for comment.
(6) A proposed amendment to the Guidelines Manual to delete from
certain Chapter Two guidelines 26 specific offense characteristics that
courts did not apply at all in the last five fiscal years and that were
applied a small number of times--if at all--using a 25-year lookback
window, and a related issue for comment.
(7) A proposed amendment setting forth two options to address
specific offense characteristics relating to sophisticated criminal
conduct, including (A) an option for creating a new Chapter Three
adjustment at
[[Page 59661]]
Sec. 3C1.5 (Sophisticated Means) addressing sophisticated conduct and
deleting specific offense characteristics in Chapter Two guidelines
that currently address sophisticated conduct; (B) an option for
amending Chapter Two guidelines that contain specific offense
characteristics addressing sophisticated conduct to provide updated,
uniform guidance relating to sophisticated conduct; and (C) related
issues for comment.
(8) A multi-part proposed amendment relating to recently enacted
legislation and a miscellaneous issue, including (A) amendments to
Appendix A (Statutory Index) and the Commentary to Sec. 2A6.1
(Threatening or Harassing Communications; Hoaxes; False Liens) to
respond to the Tools to Address Known Exploitation by Immobilizing
Technological Deepfakes on websites and Networks Act (``TAKE IT DOWN
Act''), Public Law 119-12 (2025), and a related issue for comment; (B)
amendments to Appendix A and the Commentary to Sec. 2S1.3 (Structuring
Transactions to Evade Reporting Requirements; Failure to Report Cash or
Monetary Transactions; Failure to File Currency and Monetary Instrument
Report; Knowingly Filing False Reports; Bulk Cash Smuggling;
Establishing or Maintaining Prohibited Accounts) to respond to the
Fentanyl Eradication and Narcotics Deterrence Off Fentanyl Act (``FEND
Off Fentanyl Act''), Public Law 118-50 (2024), and a related issue for
comment; (C) amendments to Appendix A and the Commentary to Sec. 2H3.1
(Interception of Communications; Eavesdropping; Disclosure of Certain
Private or Protected Information) to respond to the Protecting
Americans' Data from Foreign Adversaries Act, Public Law 118-50 (2024),
and a related issue for comment; (D) amendments to Appendix A and the
Commentary to Sec. 2C1.1 (Offering, Giving, Soliciting, or Receiving a
Bribe; Extortion Under Color of Official Right; Fraud Involving the
Deprivation of the Intangible Right to Honest Services of Public
Officials; Conspiracy to Defraud by Interference with Governmental
Functions) to respond to the Foreign Extortion Prevention Technical
Corrections Act, Public Law 118-78 (2024), and a related issue for
comment; and (E) amendments to Appendix A and the Commentary to Sec.
2B1.4 (Insider Trading) to provide an Appendix A reference for 18
U.S.C. 1348, dealing with securities and commodities fraud, by
referencing the statute to Sec. 2B1.4, while also maintaining the
current reference to Sec. 2B1.1 (Theft, Property Destruction, and
Fraud).
(9) A proposed amendment making technical and other non-substantive
changes throughout the Guidelines Manual.
In addition, the Commission requests public comment regarding
whether, pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any
proposed amendment published in this notice should be included in
subsection (d) of Sec. 1B1.10 (Reduction in Term of Imprisonment as a
Result of Amended Guideline Range (Policy Statement)) as an amendment
that may be applied retroactively to previously sentenced defendants.
The Commission lists in Sec. 1B1.10(d) the specific guideline
amendments that the court may apply retroactively under 18 U.S.C.
3582(c)(2). The Background Commentary to Sec. 1B1.10 lists the purpose
of the amendment, the magnitude of the change in the guideline range
made by the amendment, and the difficulty of applying the amendment
retroactively to determine an amended guideline range under Sec.
1B1.10(b) as among the factors the Commission considers in selecting
the amendments included in Sec. 1B1.10(d). To the extent practicable,
public comment should address each of these factors.
The text of the proposed amendments and related issues for comment
are set forth below. Additional information pertaining to the proposed
amendments and issues for comment described in this notice may be
accessed through the Commission's website at <a href="http://www.ussc.gov">www.ussc.gov</a>. In addition,
as required by 5 U.S.C. 553(b)(4), plain-language summaries of the
proposed amendments are available at <a href="https://www.ussc.gov/guidelines/amendments/proposed-2026-amendments-federal-sentencing-guidelines-published-december-2025">https://www.ussc.gov/guidelines/amendments/proposed-2026-amendments-federal-sentencing-guidelines-published-december-2025</a>.
Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice
and Procedure 2.2, 4.3, 4.4.
Carlton W. Reeves,
Chair.
Proposed Amendments to the Sentencing Guidelines, Policy Statements,
and Official Commentary
1. Drug Offenses
Synopsis of Proposed Amendment: In August 2025, the Commission
identified as one of its policy priorities for the amendment cycle
ending May 1, 2026, ``[f]urther examination of the penalty structure
for certain drug trafficking offenses under Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses)),'' including
``consideration of possible amendments addressing the purity
distinctions for methamphetamine provided in the Drug Quantity Table
and related application notes'' and ``consideration of other
miscellaneous issues pertaining to drug trafficking offenses coming to
the Commission's attention, such as statutory changes relating to
fentanyl, sentencing enhancements for offenses involving fentanyl, and
other fentanyl-related issues.'' U.S. Sent'g Comm'n, ``Notice of Final
Priorities,'' 90 FR 39263 (Aug. 14, 2025).
This proposed amendment contains three parts (Parts A, B, and C).
The Commission is considering whether to promulgate any or all of these
parts, as they are not mutually exclusive.
Part A of the proposed amendment sets forth two options for
amending Sec. 2D1.1 to address the purity distinction between
methamphetamine in ``actual'' form and methamphetamine as part of a
mixture. It would also amend Sec. 2D1.1 to address offenses involving
``Ice.'' Issues for comment are also included.
Part B of the proposed amendment would amend Sec. 2D1.1 to address
the enactment of the Halt All Lethal Trafficking of Fentanyl Act (HALT
Fentanyl Act), which permanently scheduled ``fentanyl-related
substances.'' An issue for comment is also provided.
Part C of the proposed amendment would amend Sec. 2D1.1 to add new
enhancements for offenses involving fentanyl and fentanyl analogues.
Issues for comment are also provided.
(A) Methamphetamine
Synopsis of Proposed Amendment: Part A of the proposed amendment
sets forth two options for amending Sec. 2D1.1 to address the purity
distinction between methamphetamine in ``actual'' form and
methamphetamine as part of a mixture. Part A of the proposed amendment
also addresses offenses involving ``Ice.'' Both options in Part A aim
to update the Guidelines Manual's treatment of methamphetamine to
reflect the evolving nature of methamphetamine trafficking, while
addressing the concerns that animated Congress's decision to set
mandatory minimum penalties for certain methamphetamine trafficking
offenses.
Statutory History of Methamphetamine Trafficking Offenses
The statutory provisions and penalties associated with the
trafficking of methamphetamine are found at 21 U.S.C. 841 and 960.
While the statutory penalties for most drug types are based solely on
drug quantity, the statutory penalties for methamphetamine are also
based on the purity of the substance
[[Page 59662]]
involved in the offense. Sections 841 and 960 contain quantity
threshold triggers for five- and ten-year mandatory minimums for
methamphetamine (actual) (i.e., ``pure'' methamphetamine) and
methamphetamine (mixture) (i.e., ``a mixture or substance containing a
detectable amount of methamphetamine''). See 21 U.S.C.
841(b)(1)(A)(viii), (B)(viii), 960(b)(1)(H), & 960(b)(2)(H). Two
different 10-to-1 quantity ratios set the mandatory minimum penalties
for methamphetamine trafficking offenses. First, the quantity of
substance triggering the ten-year minimum is ten times the quantity
triggering the five-year minimum. Second, the quantity of
methamphetamine mixture triggering each mandatory minimum is set at ten
times the quantity of methamphetamine (actual) triggering the same
statutory minimum penalty.
These penalties stem from action taken by Congress in 1988 and 1998
to address methamphetamine trafficking offenses. The record for the
Anti-Drug Abuse Act of 1988 suggests that Congress endeavored to
compare methamphetamine with other drugs in deciding the appropriate
mandatory minimum threshold quantities, ultimately determining that
methamphetamine ``is a serious and common drug of abuse, comparable in
dangerousness to other controlled substances'' listed in the Anti-Drug
Abuse Act of 1986. See 134 Cong. Rec. S17,367 (daily ed. Nov. 10,
1988). Specifically, Congress cited the Department of Justice's
determination that the ``quantity of methamphetamine that justifies
these penalties is the same as that currently set forth for PCP''--the
only drug in the Anti-Drug Abuse Act of 1986 that had a purity
distinction. Id. Over the next ten years, Congress considered changes
to the statutory penalties for methamphetamine, frequently invoking
comparisons between methamphetamine and crack cocaine in terms of the
dangers and harms associated with the two drugs. With the
Methamphetamine Trafficking Penalty Enhancement Act of 1998, Congress
halved the quantities of methamphetamine set forth in the 1988 Act to
the quantity threshold triggers that apply today. In doing so, it
enacted mandatory minimum quantity thresholds for methamphetamine
(actual) that matched those in place at the time for crack cocaine.
Although the statutory penalties for crack cocaine have changed, the
same statutory penalties for methamphetamine remain in place, and as
explained below, the methamphetamine trafficking guidelines are linked
to those penalties.
Guideline History of Methamphetamine Trafficking Offenses
Under Sec. 2D1.1, the base offense level for offenses involving
methamphetamine varies based on the purity of the substance.
Specifically, the Drug Quantity Table at Sec. 2D1.1(c) contains three
different entries relating to methamphetamine: (1) ``Methamphetamine,''
which refers to the entire weight of a mixture or substance containing
a detectable amount of methamphetamine; (2) ``Methamphetamine
(actual),'' which refers to the weight of methamphetamine itself
contained in a mixture or substance; and (3) ``Ice,'' which is defined
as ``a mixture or substance containing d-methamphetamine hydrochloride
of at least 80% purity'' (see USSG Sec. 2D1.1(c) (Note C)). The Drug
Quantity Table sets base offense levels for methamphetamine mixture and
methamphetamine (actual) in a manner that reflects the 10:1 quantity
ratio of the applicable statutory provisions, such that it takes ten
times more methamphetamine mixture than methamphetamine (actual) to
trigger the same base offense level.
Although ``Ice'' is included in the guidelines, the term ``Ice''
does not appear in the statutory provisions setting penalties for
methamphetamine offenses. ``Ice'' was added to the guidelines in
response to the Crime Control Act of 1990, which directed the
Commission to amend the guidelines ``for offenses involving smokable
crystal methamphetamine . . . so that convictions for [such offenses]
will be assigned an offense level . . . two levels above that which
would have been assigned to the same offense involving other forms of
methamphetamine.'' See Public Law 101-67, 2701 (1990). The 1990 Act did
not, however, define ``smokable crystal methamphetamine,'' and the
Commission and commenters struggled to determine its meaning.
Ultimately, the Commission responded to the Act by adding ``Ice'' to
the Drug Quantity Table--even though the 1990 Act did not use that
term--and developed a definition of ``Ice'' based on the type and
purity of methamphetamine. See USSG App. C, amend. 370 (effective Nov.
1, 1991). The Commission set the base offense levels for quantities of
``Ice'' equal to the base offense levels for the same quantities of
methamphetamine (actual).
Evolving Nature of Methamphetamine Trafficking
As explained in a recent report published by the Commission, there
have been changes to the trends in methamphetamine trafficking in the
last two decades. When Congress established the different statutory
penalties for methamphetamine (actual) and methamphetamine mixture in
the Anti-Drug Abuse Act of 1988, the average purity of the
methamphetamine being trafficked in the United States was seldom
greater than 50 percent. At the time, individuals sentenced for
trafficking highly pure methamphetamine were considered to have a
higher function in a drug distribution chain, and therefore greater
culpability in the offense. Since then, however, the purity of the
methamphetamine trafficked in the United States has increased
substantially, and it is now rare to find methamphetamine that tests
lower than 90 percent pure. See U.S. Sent'g Comm'n, Methamphetamine
Trafficking Offenses in the Federal Criminal Justice System 3 (2024) at
<a href="https://www.ussc.gov/research/research-reports/methamphetamine-trafficking-offenses-federal-criminal-justice-system">https://www.ussc.gov/research/research-reports/methamphetamine-trafficking-offenses-federal-criminal-justice-system</a>.
Commission data further shows that the average purity of
methamphetamine does not vary significantly based on the function of
the individual drug trafficker. The Commission's report showed that
high-level suppliers had drugs that were, on average, 95.2 percent
pure, and drug organization employees had methamphetamine that was 93.3
percent pure. Likewise, an individual's function varied little by the
primary type of methamphetamine involved in the offense, with the
exception of the function of a drug courier. The rate of individuals
sentenced for trafficking methamphetamine (actual) that acted as
couriers (31.3%) was twice that compared to either methamphetamine
mixture (13.5%) or ``Ice'' (13.8%).
While the nature of methamphetamine trafficking has evolved, so too
has the methamphetamine trafficking caseload. Since fiscal year 2002,
the number of offenses involving methamphetamine mixture has remained
relatively steady, but the number of offenses involving methamphetamine
(actual) and ``Ice'' has risen substantially. Offenses involving
methamphetamine (actual) increased 299 percent from 910 offenses in
fiscal year 2002 to 3,634 offenses in fiscal year 2022. As a result, in
fiscal year 2022, methamphetamine (actual) accounted for more than half
(52.2%) of
[[Page 59663]]
all methamphetamine cases. Offenses involving ``Ice'' also have risen
during the past 20 years. In fiscal year 2002, there were 88 offenses
involving ``Ice'' in the federal caseload; that number rose by 881
percent to 863 offenses in fiscal year 2022. Offenses involving ``Ice''
now make up more than ten percent (12.4%) of all methamphetamine cases.
Offenses involving methamphetamine mixture comprise roughly a third
(35.4%) of all methamphetamine cases. See id. at 4, 9, 18, 32-33, 38-
39, 52.
Feedback From Stakeholders
The Commission has received significant comment regarding Sec.
2D1.1's methamphetamine purity distinction, including in response to a
proposed amendment the Commission published last year. See Public
Comment on 2025 Proposed Amendments (March 2025) at <a href="https://www.ussc.gov/policymaking/public-comment/public-comment-2025-proposed-amendments">https://www.ussc.gov/policymaking/public-comment/public-comment-2025-proposed-amendments</a>. Some commenters suggested that the Commission should
revisit or eliminate the disparity in Sec. 2D1.1's treatment of
methamphetamine mixture, on the one hand, and methamphetamine (actual)
and ``Ice,'' on the other. Most of these commenters stated that purity
is no longer an accurate measure of offense culpability because
methamphetamine today is highly and uniformly pure and that ``Ice''
cases do not involve a higher level of purity than other forms of
methamphetamine. Some of these commenters also pointed to disparities
in testing practices across judicial districts, which, in turn, have
yielded disparate sentences.
The commenters diverged, however, on the action the Commission
should take to address the 10:1 quantity ratio for methamphetamine
mixture and methamphetamine (actual). Some commenters supported setting
base offense levels for all methamphetamine at the level of
methamphetamine mixture or some lower level, such as at the level of
cocaine. Other commenters supported setting base offense levels for all
methamphetamine at the level of methamphetamine (actual). Still other
commenters suggested that the Commission set the base offense levels at
a level in between methamphetamine mixture and methamphetamine
(actual), and recommended that the Commission undertake additional
study of the issues. The Commission has since held a hearing to study
methamphetamine, including its chemical structure, pharmacological
effects, trafficking patterns, and community impact, and the
differences, if any, between methamphetamine of varying purity levels.
Proposed Amendment
Part A of the proposed amendment would amend Sec. 2D1.1 to address
offenses involving ``Ice'' and the purity distinction between
methamphetamine in ``actual'' form and methamphetamine as part of a
mixture. Part A contains two options to address the purity distinction,
both of which aim to respond to changes in methamphetamine trafficking
and continue to reflect the dangers and harms identified by Congress
when it set mandatory minimum penalties for these offenses.
Revisions Relating to Methamphetamine Purity Distinction
Part A of the proposed amendment sets forth two options to address
the 10:1 quantity ratio for methamphetamine mixture and methamphetamine
(actual).
Option 1 would set the same quantity thresholds for all
methamphetamine offenses. It would delete all references to
``methamphetamine (actual)'' from the Drug Quantity Table at Sec.
2D1.1(c) and the Drug Conversion Tables at Application Note 8(D). The
weight of the mixture or substance containing methamphetamine that
triggers the base offense levels would then be the entire weight of any
mixture or substance containing a detectable amount of methamphetamine.
Option 1 brackets four alternatives for the quantity thresholds for
methamphetamine: (1) quantity thresholds matching the current quantity
thresholds for methamphetamine mixture; (2) quantity thresholds
matching those of fentanyl; (3) quantity thresholds matching those of
cocaine base; and (4) quantity thresholds matching the current quantity
thresholds for methamphetamine (actual). This approach would simplify
Sec. 2D1.1 by reducing the number of methamphetamine entries in the
Drug Quantity Table and Drug Conversion Tables, while reflecting how
methamphetamine trafficking has changed.
Option 2 would maintain different base offense levels for different
methamphetamine offenses. It would set the baseline quantity thresholds
for methamphetamine at a level between the current quantity thresholds
for methamphetamine mixture and methamphetamine (actual). Option 2
brackets setting the baseline quantity thresholds for methamphetamine
at the same level as cocaine base. The base offense level may be either
reduced to the current base offense levels for methamphetamine mixture
and its corresponding quantity thresholds if [1][2][3] or more of
certain factors apply, or heightened to the current base offense levels
for methamphetamine (actual) and its corresponding quantity thresholds
if [1][2][3] or more of certain factors apply. Both lists of factors
are set forth in the Notes to the Drug Quantity Table. These factors
would reflect the concerns that animated Congress when it set the
statutory minimum penalties for methamphetamine trafficking offenses.
Issues for comment for these revisions are also provided.
Revisions Relating to ``Ice''
Part A of the proposed amendment would amend the Drug Quantity
Table at Sec. 2D1.1(c) and the Drug Equivalency Tables at Application
Note 8(D) of the Commentary to Sec. 2D1.1 to delete all references to
``Ice.'' In addition, it would add a new specific offense
characteristic at Sec. 2D1.1(b)(19) that provides a [2]-level
reduction if the offense involved only methamphetamine in a non-
smokable, non-crystalline form, which would continue to ensure
compliance with Congress's directive that ``convictions for offenses
involving smokable crystal methamphetamine will be assigned an offense
level under the guidelines which is two levels above'' other forms of
methamphetamine.
An issue for comment relating to these revisions is also provided.
Proposed Amendment: Section 2D1.1(b) is amended by inserting at the
end the following new paragraph (19):
``(19) If the offense involved only methamphetamine in a non-
smokable, non-crystalline form, decrease by [2] levels.''.
Option 1 (Using a single entry for methamphetamine):
Section 2D1.1(c)(1) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> 45 KG or more of Methamphetamine, or
4.5 KG or more of Methamphetamine (actual), or
4.5 KG or more of `Ice';'',
and inserting the following line:
``<bullet> [45][36][25.2][4.5] KG or more of Methamphetamine;''.
Section 2D1.1(c)(2) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 15 KG but less than 45 KG of Methamphetamine,
or
at least 1.5 KG but less than 4.5 KG of Methamphetamine (actual),
or
at least 1.5 KG but less than 4.5 KG of `Ice';'',
and inserting the following line:
[[Page 59664]]
``<bullet> At least [15 KG but less than 45 KG][12 KG but less than
36 KG][8.4 KG but less than 25.2 KG][1.5 KG but less than 4.5 KG] of
Methamphetamine;''.
Section 2D1.1(c)(3) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 5 KG but less than 15 KG of Methamphetamine, or
at least 500 G but less than 1.5 KG of Methamphetamine (actual), or
at least 500 G but less than 1.5 KG of `Ice';'',
and inserting the following line:
``<bullet> At least [5 KG but less than 15 KG][4 KG but less than
12 KG][2.8 KG but less than 8.4 KG][500 G but less than 1.5 KG] of
Methamphetamine;''.
Section 2D1.1(c)(4) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 1.5 KG but less than 5 KG of Methamphetamine,
or
at least 150 G but less than 500 G of Methamphetamine (actual), or
at least 150 G but less than 500 G of `Ice';'',
and inserting the following line:
``<bullet> At least [1.5 KG but less than 5 KG][1.2 KG but less
than 4 KG][840 G but less than 2.8 KG][150 G but less than 500 G] of
Methamphetamine;''.
Section 2D1.1(c)(5) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 500 G but less than 1.5 KG of Methamphetamine,
or
at least 50 G but less than 150 G of Methamphetamine (actual), or
at least 50 G but less than 150 G of `Ice';'''
and inserting the following line:
``<bullet> At least [500 G but less than 1.5 KG][400 G but less
than 1.2 KG][280 G but less than 840 G][50 G but less than 150 G] of
Methamphetamine;''.
Section 2D1.1(c)(6) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 350 G but less than 500 G of Methamphetamine,
or
at least 35 G but less than 50 G of Methamphetamine (actual), or
at least 35 G but less than 50 G of `Ice';'',
and inserting the following line:
``<bullet> At least [350 G but less than 500 G][280 G but less than
400 G][196 G but less than 280 G][35 G but less than 50 G] of
Methamphetamine;''.
Section 2D1.1(c)(7) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 200 G but less than 350 G of Methamphetamine,
or
at least 20 G but less than 35 G of Methamphetamine (actual), or
at least 20 G but less than 35 G of `Ice';'',
and inserting the following line:
``<bullet> At least [200 G but less than 350 G][160 G but less than
280 G][112 G but less than 196 G] [20 G but less than 35 G] of
Methamphetamine;''.
Section 2D1.1(c)(8) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 50 G but less than 200 G of Methamphetamine, or
at least 5 G but less than 20 G of Methamphetamine (actual), or
at least 5 G but less than 20 G of `Ice';'',
and inserting the following line:
``<bullet> At least [50 G but less than 200 G][40 G but less than
160 G][28 G but less than 112 G][5 G but less than 20 G] of
Methamphetamine;''.
Section 2D1.1(c)(9) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 40 G but less than 50 G of Methamphetamine, or
at least 4 G but less than 5 G of Methamphetamine (actual), or
at least 4 G but less than 5 G of `Ice';'',
and inserting the following line:
``<bullet> At least [40 G but less than 50 G][32 G but less than 40
G][22.4 G but less than 28 G] [4 G but less than 5 G] of
Methamphetamine;''.
Section 2D1.1(c)(10) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 30 G but less than 40 G of Methamphetamine, or
at least 3 G but less than 4 G of Methamphetamine (actual), or
at least 3 G but less than 4 G of `Ice';'',
and inserting the following line:
``<bullet> At least [30 G but less than 40 G][24 G but less than 32
G][16.8 G but less than 22.4 G][3 G but less than 4 G] of
Methamphetamine;''.
Section 2D1.1(c)(11) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 20 G but less than 30 G of Methamphetamine, or
at least 2 G but less than 3 G of Methamphetamine (actual), or
at least 2 G but less than 3 G of `Ice';'',
and inserting the following line:
``<bullet> At least [20 G but less than 30 G][16 G but less than 24
G][11.2 G but less than 16.8 G][2 G but less than 3 G] of
Methamphetamine;''.
Section 2D1.1(c)(12) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 10 G but less than 20 G of Methamphetamine, or
at least 1 G but less than 2 G of Methamphetamine (actual), or
at least 1 G but less than 2 G of `Ice';'',
and inserting the following line:
``<bullet> At least [10 G but less than 20 G][8 G but less than 16
G][5.6 G but less than 11.2 G] [1 G but less than 2 G] of
Methamphetamine;''.
Section 2D1.1(c)(13) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 5 G but less than 10 G of Methamphetamine, or
at least 500 MG but less than 1 G of Methamphetamine (actual), or
at least 500 MG but less than 1 G of `Ice';'',
and inserting the following line:
``<bullet> At least [5 G but less than 10 G][4 G but less than 8
G][2.8 G but less than 5.6 G] [500 MG but less than 1 G] of
Methamphetamine;''.
Section 2D1.1(c)(14) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> Less than 5 G of Methamphetamine, or
less than 500 MG of Methamphetamine (actual), or
less than 500 MG of `Ice';'',
and inserting the following line:
``<bullet> Less than [5 G][4 G][2.8 G][500 MG] of
Methamphetamine;''.
The annotation to Sec. 2D1.1(c) captioned ``Notes to Drug Quantity
Table'' is amended--
in Note (B) by striking the following:
``The terms `PCP (actual)', `Amphetamine (actual)', and
`Methamphetamine (actual)' refer to the weight of the controlled
substance, itself, contained in the mixture or substance. For example,
a mixture weighing 10 grams containing PCP at 50% purity contains 5
grams of PCP (actual). In the case of a mixture or substance containing
PCP, amphetamine, or methamphetamine, use the offense level determined
by the entire weight of the mixture or substance, or the offense level
determined by the weight of the PCP (actual), amphetamine (actual), or
methamphetamine (actual), whichever is greater.
The terms `Hydrocodone (actual)' and `Oxycodone (actual)' refer to
the weight of the controlled substance, itself, contained in the pill,
capsule, or mixture.'',
and inserting the following:
``The terms `PCP (actual)' and `Amphetamine (actual)' refer to the
weight of the controlled substance, itself, contained in the mixture or
[[Page 59665]]
substance. For example, a mixture weighing 10 grams containing PCP at
50% purity contains 5 grams of PCP (actual). In the case of a mixture
or substance containing PCP or amphetamine, use the offense level
determined by the entire weight of the mixture or substance, or the
offense level determined by the weight of the PCP (actual) or
amphetamine (actual), whichever is greater.''.
and in Note (C) by striking '' `Ice,' for the purposes of this
guideline, means a mixture or substance containing d-methamphetamine
hydrochloride of at least 80% purity'' and inserting ``The terms
`Hydrocodone (actual)' and `Oxycodone (actual)' refer to the weight of
the controlled substance, itself, contained in the pill, capsule, or
mixture''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 8(D), under the heading relating to Cocaine and Other
Schedule I and II Stimulants (and their immediate precursors)--
by striking the line referenced to ``Ice'' as follows:
``1 gm of `Ice' = 20 kg'';
and by striking the lines referenced to Methamphetamine and
Methamphetamine (actual) as follows:
``1 gm of Methamphetamine = 2 kg
1 gm of Methamphetamine (actual) = 20 kg'',
and inserting the following line:
``1 gm of Methamphetamine = [20 kg][3,571 gm][2.5 kg][2 kg]''.
Option 2 (Using different entries for methamphetamine):
Section 2D1.1(c)(1) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> 45 KG or more of Methamphetamine, or
4.5 KG or more of Methamphetamine (actual), or
4.5 KG or more of `Ice';'',
and inserting the following lines:
``<bullet> 45 KG or more of Methamphetamine (when reduced base
offense level applies under Note (L) below), or
4.5 KG or more of Methamphetamine (when heightened base offense
level applies under Note (M) below), or
[25.2] KG or more of Methamphetamine (in any other case);''.
Section 2D1.1(c)(2) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 15 KG but less than 45 KG of Methamphetamine,
or
at least 1.5 KG but less than 4.5 KG of Methamphetamine (actual),
or
at least 1.5 KG but less than 4.5 KG of `Ice';'',
and inserting the following lines:
``<bullet> At least 15 KG but less than 45 KG of Methamphetamine
(when reduced base offense level applies under Note (L) below), or
at least 1.5 KG but less than 4.5 KG of Methamphetamine (when
heightened base offense level applies under Note (M) below), or
at least [8.4 KG but less than 25.2 KG] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(3) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 5 KG but less than 15 KG of Methamphetamine, or
at least 500 G but less than 1.5 KG of Methamphetamine (actual), or
at least 500 G but less than 1.5 KG of `Ice';'',
and inserting the following lines:
``<bullet> At least 5 KG but less than 15 KG of Methamphetamine
(when reduced base offense level applies under Note (L) below), or
at least 500 G but less than 1.5 KG of Methamphetamine (when
heightened base offense level applies under Note (M) below), or
at least [2.8 KG but less than 8.4 KG] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(4) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 1.5 KG but less than 5 KG of Methamphetamine,
or
at least 150 G but less than 500 G of Methamphetamine (actual), or
at least 150 G but less than 500 G of `Ice';'',
and inserting the following lines:
``<bullet> At least 1.5 KG but less than 5 KG of Methamphetamine
(when reduced base offense level applies under Note (L) below), or
at least 150 G but less than 500 G of Methamphetamine (when
heightened base offense level applies under Note (M) below), or
at least [840 G but less than 2.8 KG] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(5) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 500 G but less than 1.5 KG of Methamphetamine,
or
at least 50 G but less than 150 G of Methamphetamine (actual), or
at least 50 G but less than 150 G of `Ice';'''
and inserting the following lines:
``<bullet> At least 500 G but less than 1.5 KG of Methamphetamine
(when reduced base offense level applies under Note (L) below), or
at least 50 G but less than 150 G of Methamphetamine (when
heightened base offense level applies under Note (M) below), or
at least [280 G but less than 840 G] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(6) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 350 G but less than 500 G of Methamphetamine,
or
at least 35 G but less than 50 G of Methamphetamine (actual), or
at least 35 G but less than 50 G of `Ice';'',
and inserting the following lines:
``<bullet> At least 350 G but less than 500 G of Methamphetamine
(when reduced base offense level applies under Note (L) below), or
at least 35 G but less than 50 G of Methamphetamine (when
heightened base offense level applies under Note (M) below), or
at least [196 G but less than 280 G] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(7) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 200 G but less than 350 G of Methamphetamine,
or
at least 20 G but less than 35 G of Methamphetamine (actual), or
at least 20 G but less than 35 G of `Ice';'',
and inserting the following lines:
``<bullet> At least 200 G but less than 350 G of Methamphetamine
(when reduced base offense level applies under Note (L) below), or
at least 20 G but less than 35 G of Methamphetamine (when
heightened base offense level applies under Note (M) below), or
at least [112 G but less than 196 G] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(8) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 50 G but less than 200 G of Methamphetamine, or
at least 5 G but less than 20 G of Methamphetamine (actual), or
at least 5 G but less than 20 G of `Ice';'',
and inserting the following lines:
``<bullet> At least 50 G but less than 200 G of Methamphetamine
(when reduced base offense level applies under Note (L) below), or
at least 5 G but less than 20 G of Methamphetamine (when heightened
base offense level applies under Note (M) below), or
[[Page 59666]]
at least [28 G but less than 112 G] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(9) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 40 G but less than 50 G of Methamphetamine, or
at least 4 G but less than 5 G of Methamphetamine (actual), or
at least 4 G but less than 5 G of `Ice';'',
and inserting the following lines:
``<bullet> At least 40 G but less than 50 G of Methamphetamine
(when reduced base offense level applies under Note (L) below), or
at least 4 G but less than 5 G of Methamphetamine (when heightened
base offense level applies under Note (M) below), or
at least [22.4 G but less than 28 G] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(10) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 30 G but less than 40 G of Methamphetamine, or
at least 3 G but less than 4 G of Methamphetamine (actual), or
at least 3 G but less than 4 G of `Ice';'',
and inserting the following lines:
``<bullet> At least 30 G but less than 40 G of Methamphetamine
(when reduced base offense level applies under Note (L) below), or
at least 3 G but less than 4 G of Methamphetamine (when heightened
base offense level applies under Note (M) below), or
at least [16.8 G but less than 22.4 G] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(11) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 20 G but less than 30 G of Methamphetamine, or
at least 2 G but less than 3 G of Methamphetamine (actual), or
at least 2 G but less than 3 G of `Ice';'',
and inserting the following lines:
``<bullet> At least 20 G but less than 30 G of Methamphetamine
(when reduced base offense level applies under Note (L) below), or
at least 2 G but less than 3 G of Methamphetamine (when heightened
base offense level applies under Note (M) below), or
at least [11.2 G but less than 16.8 G] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(12) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 10 G but less than 20 G of Methamphetamine, or
at least 1 G but less than 2 G of Methamphetamine (actual), or
at least 1 G but less than 2 G of `Ice';'',
and inserting the following lines:
``<bullet> At least 10 G but less than 20 G of Methamphetamine
(when reduced base offense level applies under Note (L) below), or
at least 1 G but less than 2 G of Methamphetamine (when heightened
base offense level applies under Note (M) below), or
at least [5.6 G but less than 11.2 G] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(13) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> At least 5 G but less than 10 G of Methamphetamine, or
at least 500 MG but less than 1 G of Methamphetamine (actual), or
at least 500 MG but less than 1 G of `Ice';'',
and inserting the following lines:
``<bullet> At least 5 G but less than 10 G of Methamphetamine (when
reduced base offense level applies under Note (L) below), or
at least 500 MG but less than 1 G of Methamphetamine (when
heightened base offense level applies under Note (M) below), or
at least [2.8 G but less than 5.6 G] of Methamphetamine (in any
other case);''.
Section 2D1.1(c)(14) is amended by striking the lines referenced to
Methamphetamine, Methamphetamine (actual), and ``Ice'' as follows:
``<bullet> Less than 5 G of Methamphetamine, or
less than 500 MG of Methamphetamine (actual), or
less than 500 MG of `Ice';'',
and inserting the following lines:
``<bullet> Less than 5 G of Methamphetamine (when reduced base
offense level applies under Note (L) below), or
less than 500 MG of Methamphetamine (when heightened base offense
level applies under Note (M) below), or
less than [2.8] G of Methamphetamine (in any other case);''.
The annotation to Sec. 2D1.1(c) captioned ``Notes to Drug Quantity
Table'' is amended--
in Note (B) by striking the following:
``The terms `PCP (actual)', `Amphetamine (actual)', and
`Methamphetamine (actual)' refer to the weight of the controlled
substance, itself, contained in the mixture or substance. For example,
a mixture weighing 10 grams containing PCP at 50% purity contains 5
grams of PCP (actual). In the case of a mixture or substance containing
PCP, amphetamine, or methamphetamine, use the offense level determined
by the entire weight of the mixture or substance, or the offense level
determined by the weight of the PCP (actual), amphetamine (actual), or
methamphetamine (actual), whichever is greater.
The terms `Hydrocodone (actual)' and `Oxycodone (actual)' refer to
the weight of the controlled substance, itself, contained in the pill,
capsule, or mixture.'',
and inserting the following:
``The terms `PCP (actual)' and `Amphetamine (actual)' refer to the
weight of the controlled substance, itself, contained in the mixture or
substance. For example, a mixture weighing 10 grams containing PCP at
50% purity contains 5 grams of PCP (actual). In the case of a mixture
or substance containing PCP or amphetamine, use the offense level
determined by the entire weight of the mixture or substance, or the
offense level determined by the weight of the PCP (actual) or
amphetamine (actual), whichever is greater.''.
in Note (C) by striking '' `Ice,' for the purposes of this
guideline, means a mixture or substance containing d-methamphetamine
hydrochloride of at least 80% purity'' and inserting ``The terms
`Hydrocodone (actual)' and `Oxycodone (actual)' refer to the weight of
the controlled substance, itself, contained in the pill, capsule, or
mixture'';
and by inserting at the end the following new Notes (L) and (M):
``(L) Use the reduced base offense level assigned to the weight of
methamphetamine if [1][2][3] or more of the following factors apply:
(i) The defendant did not receive any enhancements under subsection
(b)(1), (b)(2), (b)(5), (b)(12), or (b)(14), or any adjustments under
Sec. 3B1.1 (Aggravating Role) or Sec. 3B1.4 (Using a Minor To Commit
a Crime).
(ii) The defendant receives a reduction under subsection (b)(18).
(iii) The defendant receives an adjustment under Sec. 3B1.2
(Mitigating Role).
(iv) The defendant was motivated to commit the offense by (I) an
intimate or familial relationship, threats, fear, serious coercion,
blackmail, or duress, and (II) was otherwise unlikely to commit such an
offense.
(v) The defendant was unusually vulnerable to being persuaded or
induced to commit the offense due to a physical or mental condition
(including drug dependence or abuse), or the defendant's youthfulness
at the time of the offense.
[[Page 59667]]
(vi) The defendant committed a single criminal occurrence or single
criminal transaction that (I) was committed without significant
planning, (II) was of limited duration, and (III) represents a marked
deviation by the defendant from an otherwise law-abiding life.
(M) Use the heightened base offense level assigned to the weight of
methamphetamine if [1][2][3] or more of the following factors apply:
(i) The defendant receives an enhancement under subsection (b)(1).
(ii) The defendant receives an enhancement under subsection (b)(2).
(iii) The defendant receives an enhancement under subsection
(b)(5).
(iv) The defendant receives an enhancement under subsection
(b)(12).
(v) The defendant receives an enhancement under subsection (b)(14).
(vi) The defendant receives an adjustment under Sec. 3B1.1
(Aggravating Role).
(vii) The defendant receives an adjustment under Sec. 3B1.4 (Using
a Minor To Commit a Crime).
(viii) [The defendant (I) knowingly distributed methamphetamine to
an individual less than [18][21] years of age and (II) was [at least
[4][6][8] years older][substantially older] than that individual at the
time of the offense][The offense involved the distribution of
methamphetamine to an individual less than [18][21] years of age and
the defendant was [at least [4][6][8] years older][substantially older]
than that individual at the time of the offense].
(ix) The [defendant used or possessed][offense involved the use or
possession of] a tableting machine or an encapsulating machine for the
purpose of manufacturing methamphetamine.
(x) The [defendant used][offense involved the use of] the dark web
or darknets (i.e., part of the internet hidden from the general public
that cannot be accessed by traditional search engines or web browsers
and allows its users to hide their identity and location from other
people and from law enforcement) to facilitate the commission or
concealment of an offense involving methamphetamine.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 8(D), under the heading relating to Cocaine and Other
Schedule I and II Stimulants (and their immediate precursors)--
by striking the line referenced to ``Ice'' as follows:
``1 gm of `Ice' = 20 kg'';
and by striking the lines referenced to Methamphetamine and
Methamphetamine (actual) as follows:
``1 gm of Methamphetamine = 2 kg
1 gm of Methamphetamine (actual) = 20 kg'',
and inserting the following lines:
``1 gm of Methamphetamine (when reduced base offense level applies
under Note (L) of the Notes to the Drug Quantity Table) = 2 kg
1 gm of Methamphetamine (when heightened base offense level applies
under Note (M) of the Notes to the Drug Quantity Table) = 20 kg
1 gm of Methamphetamine (in any other case) = [3,571 gm]''.
Issues for Comment:
1. Part A of the proposed amendment provides two options with
different approaches. Option 1 provides a single entry for all
methamphetamine offenses. Option 2, by contrast, sets forth different
entries for methamphetamine offenses depending on the presence of
certain factors. The Commission seeks general comment on which
approach, if any, is appropriate to address the 10:1 quantity ratio for
methamphetamine mixture, on the one hand, and methamphetamine (actual)
and ``Ice,'' on the other. Should the Commission use the same quantity
thresholds for all methamphetamine offenses? Should the Commission
instead retain different quantity thresholds for different
methamphetamine offenses? For example, should the Commission set
baseline quantity thresholds for methamphetamine at the current level
for methamphetamine mixture or at a less severe level, and provide for
heightened base offense levels if certain factors apply? Should the
Commission instead set baseline quantity thresholds for methamphetamine
at the current level for methamphetamine (actual) or at a more severe
level, and provide for reduced base offense levels if certain factors
apply?
2. Option 1 brackets four alternatives for the quantity thresholds
for all methamphetamine offenses: (1) quantity thresholds matching
those of methamphetamine mixture; (2) quantity thresholds matching
those of fentanyl; (3) quantity thresholds matching those of cocaine
base; and (4) quantity thresholds matching those of methamphetamine
(actual). What quantity thresholds should the Commission adopt for
methamphetamine, and why? Should the Commission adopt quantity
thresholds for methamphetamine that are less severe than the current
levels for methamphetamine mixture (e.g., quantity thresholds matching
those of cocaine)?
3. Option 2 brackets setting the baseline quantity thresholds that
trigger base offense levels for methamphetamine at the same level as
cocaine base. These base offense levels could be reduced or heightened
depending on the presence of certain factors. Should the Commission
adopt a different baseline quantity threshold for methamphetamine? What
is the basis for adopting any such baseline quantity threshold? Should
the Commission adopt a different heightened or reduced base offense
level? What is the basis for adopting any such heightened or reduced
base offense level?
4. Option 2 sets forth factors that would result in the application
of reduced or heightened base offense levels. The Commission seeks
comment on whether the factors provided in Option 2 are appropriate to
trigger a reduced or heightened base offense level. Should any factors
be deleted or changed? Should the Commission provide additional or
different factors? How many factors should be present in the offense to
trigger the application of the reduced or heightened base offense
levels?
5. The Commission seeks comment on whether using the factors set
forth in Option 2 to trigger reduced or heightened base offense levels
results in any inappropriate double-counting. If so, what action should
the Commission take to account for the interaction between these
factors and the applicable base offense level?
6. Some of the factors set forth in Option 2 are not specific
offense characteristics or adjustments in the Guidelines Manual. If the
Commission includes factors that are not in the Guidelines Manual, will
it result in any fact-finding or administrability issues?
7. Both options would delete all references in Sec. 2D1.1 to
``Ice'' and add a new specific offense characteristic at Sec.
2D1.1(b)(19) that provides a [2]-level reduction if the offense
involved only methamphetamine in a non-smokable, non-crystalline form.
This new specific offense characteristic is intended to ensure
compliance with the 1990 congressional directive (Pub. L. 101-67, 2701
(1990)). The Commission invites comment on whether the Commission
should take an alternative approach to ensure compliance with the 1990
congressional directive.
(B) Fentanyl-Related Substances
Synopsis of Proposed Amendment: The Halt All Lethal Trafficking of
Fentanyl Act (Pub. L. 119-26) (2025) (``HALT Fentanyl Act'')
permanently scheduled ``fentanyl-related substances'' as Schedule I
substances under 21 U.S.C. 812. The Act also expanded the offenses
prohibited by 21 U.S.C. 841 and 960 to include ``fentanyl-related
substances,'' setting the quantities that
[[Page 59668]]
trigger mandatory minimum penalties at the same level as fentanyl
analogues. The Act defined ``fentanyl-related substances'' as
(2) For purposes of paragraph (1), except as provided in paragraph
(3), the term ``fentanyl-related substance'' means any substance that
is structurally related to fentanyl by 1 or more of the following
modifications:
(A) By replacement of the phenyl portion of the phenethyl group by
any monocycle, whether or not further substituted in or on the
monocycle.
(B) By substitution in or on the phenethyl group with alkyl,
alkenyl, alkoxyl, hydroxyl, halo, haloalkyl, amino, or nitro groups.
(C) By substitution in or on the piperidine ring with alkyl,
alkenyl, alkoxyl, ester, ether, hydroxyl, halo, haloalkyl, amino, or
nitro groups.
(D) By replacement of the aniline ring with any aromatic monocycle
whether or not further substituted in or on the aromatic monocycle.
(E) By replacement of the N-propionyl group with another acyl
group.
(3) A substance that satisfies the definition of the term
``fentanyl-related substance'' in paragraph (2) shall nonetheless not
be treated as a fentanyl-related substance subject to this schedule if
the substance--
(A) is controlled by action of the Attorney General under section
201; or
(B) is otherwise expressly listed in a schedule other than this
schedule.
Public Law 119-26, 2 (2025). The HALT Fentanyl Act does not contain
any directives to the Commission.
Part B of the proposed amendment would amend the Drug Quantity
Table at subsection (c) Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy) and the Drug Equivalency Tables
at Application Note 8(D) of the Commentary to Sec. 2D1.1 to add
``fentanyl-related substance.'' It would set the quantity thresholds
and base offense levels at the same level as fentanyl analogues. Part B
of the proposed amendment would also amend the Notes to the Drug
Quantity Table to add a definition of ``fentanyl-related substance''
that closely tracks the statutory definition.
In addition, Part B of the proposed amendment would add ``fentanyl-
related substance'' to the enhancement at Sec. 2D1.1(b)(13) for
representing or marketing fentanyl or a fentanyl analogue as another
substance or as a legitimately manufactured drug.
An issue for comment is also provided.
Proposed Amendment:
Section 2D1.1(b)(13) is amended by striking ``fentanyl (N-phenyl-N-
[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue''
both places it appear and inserting ``fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide), a fentanyl analogue, or a
fentanyl-related substance''.
Section 2D1.1(c)(1) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> 9 KG or more of a Fentanyl-Related Substance;''.
Section 2D1.1(c)(2) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 3 KG but less than 9 KG of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(3) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 1 KG but less than 3 KG of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(4) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 300 G but less than 1 KG of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(5) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 100 G but less than 300 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(6) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 70 G but less than 100 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(7) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 40 G but less than 70 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(8) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 10 G but less than 40 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(9) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 8 G but less than 10 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(10) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 6 G but less than 8 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(11) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 4 G but less than 6 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(12) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 2 G but less than 4 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(13) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 1 G but less than 2 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(14) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> Less than 1 G of a Fentanyl-Related Substance;''.
The annotation to Sec. 2D1.1(c) captioned ``Notes to Drug Quantity
Table'' is amended--
by redesignating Note (K) as Note (L);
and by inserting after Note (J) the following new Note (K):
``(K) Fentanyl-Related Substance, for purposes of this guideline,
means any substance (including any salt, isomer, or salt of isomer
thereof) that is structurally related to fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide) by one or more of the
following modifications:
(i) By replacement of the phenyl portion of the phenethyl group by
any monocycle, whether or not further substituted in or on the
monocycle.
(ii) By substitution in or on the phenethyl group with alkyl,
alkenyl, alkoxyl, hydroxyl, halo, haloalkyl, amino, or nitro groups.
(iii) By substitution in or on the piperidine ring with alkyl,
alkenyl, alkoxyl, ester, ether, hydroxyl, halo, haloalkyl, amino, or
nitro groups.
(iv) By replacement of the aniline ring with any aromatic monocycle
whether or not further substituted in or on the aromatic monocycle.
(v) By replacement of the N-propionyl group with another acyl
group.
A substance that satisfies the definition of `fentanyl-related
substance' shall nonetheless not be treated as a fentanyl-related
substance if the substance is controlled by action of the Attorney
General under 21 U.S.C. 811 or is otherwise expressly listed in a
schedule other that Schedule I.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 8(D), under the heading relating to Schedule I or II
Opiates by inserting after the line referenced to a Fentanyl Analogue
the following line:
``1 gm of a Fentanyl-Related Substance = 10 kg''.
Issue for Comment:
1. The Halt all Lethal Trafficking of Fentanyl Act (Pub. L. 119-26)
(2025) (``HALT Fentanyl Act'') set the quantities of ``fentanyl-related
substances'' that trigger mandatory minimum penalties at the same level
as fentanyl analogues. In response to this, Part B of the amendment
would set the quantity thresholds and base offense levels for fentanyl-
related substances at
[[Page 59669]]
the same level as fentanyl analogues. The Commission invites comment on
whether this is the appropriate approach. Should the quantity
thresholds and base offense levels for fentanyl-related substances
instead be set at the same level as fentanyl, another substance in the
Drug Quantity Table, or some other level entirely? If so, why? How are
fentanyl-related substances similar to or different from other
substances in the Drug Quantity Table, including fentanyl or fentanyl
analogues? How do the effects of fentanyl-related substances compare
with the effects of other substances in the Drug Quantity Table,
including fentanyl or fentanyl analogues?
(C) Enhancements for Offenses Involving Fentanyl or Fentanyl Analogues
Synopsis of Proposed Amendment: Fentanyl and fentanyl analogue
cases have increased substantially over the last several years. Since
fiscal year 2020, fentanyl cases have increased 255.7 percent, such
that they comprised 20.2 percent of all federal drug trafficking cases
in fiscal year 2024. Today, fentanyl represents the second most common
drug type in federal drug trafficking cases. Fentanyl analogue cases
occupy a much smaller portion of the federal drug trafficking caseload
(1.9%), but those cases have increased 85.2 percent since fiscal year
2020.
In response to rising numbers of fentanyl and fentanyl analogue
cases, the Commission previously undertook a multi-year study of
synthetic controlled substances. In 2018, following that study, the
Commission amended Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
Those Offenses); Attempt or Conspiracy) to add an enhancement specific
to fentanyl and fentanyl analogue cases. In particular, the Commission
added a new specific offense characteristic at subsection (b)(13)
providing 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. See USSG, App. C.
amend. 807 (effective Nov. 1, 2018). In adding this new specific
offense characteristic, the Commission pointed to the harm attendant to
cases where a user does not know the substance they are using contains
fentanyl or a fentanyl analogue. Id. As the Commission explained,
``[b]ecause of fentanyl's extreme potency, the risk of overdose death
is great, particularly when the user is inexperienced or unaware of
what substance he or she is using.'' Id. Thus, the Commission concluded
that ``it is appropriate for traffickers who knowingly misrepresent
fentanyl or a fentanyl analogue as another substance to receive
additional punishment.'' Id.
In 2023, the Commission amended Sec. 2D1.1(b)(13) based on the
continued increase in fentanyl and fentanyl analogue distribution. See
USSG, App. C. amend. 818 (effective Nov. 1, 2023). The amendment added
a new subparagraph (B) with an alternative 2-level enhancement 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. Id. As grounds for the amendment, the
Commission cited data from the Drug Enforcement Administration
(``DEA'') showing a substantial increase in the seizure of fake
prescription pills. Id. The DEA reported seizing over 50.6 million fake
pills in calendar year 2022, with 70 percent containing fentanyl. Id.
Of those seized pills containing fentanyl, six out of ten contained a
potentially lethal dose of the substance. Id. The Commission also
pointed to the increase in drug overdose deaths--most of which involved
synthetic opioids, primarily fentanyl. Id.
In 2025, the Commission amended Sec. 2D1.1(b)(13)(B) to change the
mens rea requirement. See USSG, App. C. amend. 833 (effective Nov. 1,
2025). The Commission received comment that Sec. 2D1.1(b)(13)(B) was
being applied inconsistently, in part, because the mens rea requirement
generated confusion. In particular, commenters urged the Commission to
revise Sec. 2D1.1(b)(13)(B) because the mental state of ``willful
blindness or conscious avoidance of knowledge'' was vague, and courts
construed 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
Commission changed the mens rea requirement in Sec. 2D1.1(b)(13)(B)
from ``willful blindness or conscious avoidance of knowledge'' to
``reckless disregard.''
The Commission has continued to receive comment on whether the
guidelines appropriately account for factors specific to offenses
involving fentanyl and fentanyl analogues. Earlier this year, the
Commission sought public comment on several amendments proposed by the
Department of Justice to address the harm in cases involving fentanyl,
fentanyl analogues, and other opioids. See U.S. Sent'g Comm'n,
``Request for public comment,'' 90 FR 8840 (Feb. 3, 2025); see also
Letter from Scott Meisler, Ex-Officio Member, U.S. Sent'g Comm'n, to
Hon. Carlton W. Reeves, Chair, U.S. Sent'g Comm'n (July 15, 2024) at 5,
available at <a href="https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202407/89FR48029_public-comment_R.pdf">https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202407/89FR48029_public-comment_R.pdf</a>.
Specifically, the Commission sought comment on whether it should create
enhancements under Sec. 2D1.1 for: (1) distribution of fentanyl,
fentanyl analogues, and other opioids to individuals under the age of
21; (2) fentanyl, fentanyl analogue, and opioid offenses involving the
use of the dark web or other anonymizing technologies; and (3) drug
trafficking offenses involving fentanyl or another synthetic opioid
adulterated with xylazine or medetomidine. Some commenters supported
the proposed enhancements or asked the Commission to expand the
enhancements to apply more broadly, while others opposed the proposed
enhancements or asked the Commission to limit the enhancements to apply
more narrowly.
In response to these concerns, Part C of the proposed amendment
would amend Sec. 2D1.1 to add four new specific offense
characteristics that increase offense levels in fentanyl and fentanyl
analogue trafficking cases involving certain factors. The Commission is
considering each of these specific offense characteristics individually
and whether to promulgate any of these specific offense characteristics
or a combination of them.
First, Part C of the proposed amendment would add a new specific
offense characteristic at Sec. 2D1.1(b)(14) relating to the
distribution of fentanyl or a fentanyl analogue to an individual less
than [18][21] years of age or the use or attempted use of an individual
less than [18][21] years of age to commit an offense involving such
substance. For this enhancement to apply, the defendant must be, at the
time of the offense, [at least [4][6][8] years older][substantially
older] than the individual less than [18][21] years of age. Part C
brackets alternatives for making the enhancement defendant-based or
offense-based. The defendant-based alternative of this enhancement also
brackets a mens rea requirement of knowledge relating to the age of the
individual and to the substance involved in the offense.
[[Page 59670]]
Second, Part C of the proposed amendment would add a new specific
offense characteristic at Sec. 2D1.1(b)(15) relating to the use of the
dark web or darknets to facilitate the commission or concealment of an
offense involving fentanyl or a fentanyl analogue. It also brackets
alternatives for making the enhancement defendant-based or offense-
based.
Third, Part C of the proposed amendment would add a new specific
offense characteristic at Sec. 2D1.1(b)(16) relating to the
distribution of a mixture or substance containing (A) fentanyl or a
fentanyl analogue and (B) xylazine. It brackets alternatives for making
the enhancement defendant-based or offense-based.
Finally, Part C of the proposed amendment would add a new specific
offense characteristic at Sec. 2D1.1(b)(17) relating to the use or
possession of a tableting machine or an encapsulating machine for the
purpose of manufacturing fentanyl or a fentanyl analogue. It brackets
alternatives for making the enhancement defendant-based or offense-
based.
Issues for comment are also provided.
Proposed Amendment:
[Part C of the proposed amendment would insert any, a combination,
or all of the following paragraphs to Sec. 2D1.1(b) and redesignate
current paragraphs (14) through (18) accordingly. In addition, it would
make conforming changes in accordance with the redesignation of these
paragraphs.]
Section 2D1.1(b) is amended by inserting the following new
paragraph(s):
``(14) [If the defendant[, knowing that an individual was less than
[18][21] years of age and that the substance involved in the offense
was fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide)
or a fentanyl analogue]--
(A) (i) distributed fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue to that individual,
and (ii) the defendant was [at least [4][6][8] years
older][substantially older] than that individual at the time of the
offense; or
(B) (i) used or attempted to use that individual to commit an
offense involving fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue, and (ii) the
defendant was [at least [4][6][8] years older][substantially older]
than that individual at the time of the offense,
increase by [2][4] levels. For purposes of subsection (b)(14)(B),
`used or attempted to use' includes directing, commanding, encouraging,
intimidating, counseling, training, procuring, recruiting, or
soliciting.]
[If the offense involved--
(A) (i) the distribution of fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue to an
individual less than [18][21] years of age, and (ii) the defendant was
[at least [4][6][8] years older][substantially older] than that
individual at the time of the offense; or
(B) (i) using or attempting to use an individual less than [18][21]
years of age to commit an offense involving fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue, and
(ii) the defendant was [at least [4][6][8] years older][substantially
older] than that individual at the time of the offense,
increase by [2][4] levels. For purposes of subsection (b)(14)(B),
`using or attempting to use' includes directing, commanding,
encouraging, intimidating, counseling, training, procuring, recruiting,
or soliciting.]
(15) If [the defendant used][the offense involved the use of] the
dark web or darknets (i.e., part of the internet hidden from the
general public that cannot be accessed by traditional search engines or
web browsers and allows its users to hide their identity and location
from other people and from law enforcement) to facilitate the
commission or concealment of an offense involving fentanyl (N-phenyl-N-
[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue,
increase by [2][4] levels.
(16) [If the defendant knowingly distributed a mixture or substance
containing (A) fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
propanamide) or a fentanyl analogue, and (B) xylazine, increase by
[2][4] levels.]
[If the offense involved distribution of a mixture or substance
containing (A) fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
propanamide) or a fentanyl analogue, and (B) xylazine, increase by
[2][4] levels.]
(17) If (A) subsection (b)(13) does not apply and (B) [the
defendant used or possessed][the offense involved the use or possession
of] a tableting machine or an encapsulating machine for the purpose of
manufacturing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
propanamide) or a fentanyl analogue, increase by [2][4]levels.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended by inserting the following new Note 18:
``18. Application of Subsection (b)(14).--
(A) Interaction with Subsection (b)(20).--Do not apply subsection
(b)(14) if subsection (b)(20)(B) also applies.
(B) Interaction with Chapter Three Adjustment.--If the conduct that
forms the basis for an enhancement under subsection (b)(14) is the only
conduct that forms the basis for an adjustment under Sec. 3B1.4 (Using
a Minor to Commit a Crime), do not apply that adjustment under Sec.
3B1.4.''.
[Part C of the proposed amendment would renumber current notes 18
through 26 accordingly. In addition, it would make conforming changes
in accordance with the redesignation of these notes.]
Issues for Comment:
1. Part C of the proposed amendment would amend Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) to add four new specific offense characteristics that
increase offense levels in fentanyl and fentanyl analogue trafficking
cases involving certain factors. The Commission invites general comment
on whether the proposed enhancements are appropriate to address the
factors involved in fentanyl and fentanyl analogue trafficking cases,
including the harm and the culpability of the defendants in these
cases. If not, should the Commission take another approach to address
these factors?
2. The proposed specific offense characteristics set forth in Part
C of the proposed amendment would apply to offenses involving fentanyl
or a fentanyl analogue. Part B of the proposed amendment would add
references to ``fentanyl-related substances'' to the Drug Quantity
Table and Drug Conversion Tables in Sec. 2D1.1. If the Commission were
to promulgate Part B of the proposed amendment, should the Commission
also add fentanyl-related substances to the proposed specific offense
characteristics set forth in this Part?
3. The proposed enhancement at Sec. 2D1.1(b)(14) for offenses
involving distributing fentanyl or a fentanyl analogue to an individual
less than [18][21] years of age, or using an individual less than
[18][21] years of age in the offense, contains a condition requiring
that the defendant must be [at least [4][6][8] years
older][substantially older] than the individual less than [18][21]
years of age. The Commission seeks comment on whether it should include
such a requirement. Is the requirement appropriate to address cases
involving a defendant who is a peer or similar in age to an individual
less than [18][21] years of age? If not,
[[Page 59671]]
what changes should the Commission make to the proposed enhancement?
4. The Commission published a proposed amendment setting forth a
new Chapter Three adjustment at Sec. 3C1.5 addressing offenses
involving sophisticated means. If the Commission were to promulgate
such an adjustment, should it affect the Commission's consideration of
the proposed enhancement at Sec. 2D1.1(b)(15) relating to the use of
the dark web or darknets? If so, how?
5. Part C of the proposed amendment would add a new specific
offense characteristic at Sec. 2D1.1(b)(16) relating to the
distribution of a mixture or substance containing (A) fentanyl or a
fentanyl analogue and (B) xylazine. The Commission seeks comment on
whether the proposed enhancement is appropriate. The Commission also
seeks comment on whether there are other adulterants with similar
effects (e.g., medetomidine) to which the enhancement should apply.
6. The proposed enhancement at Sec. 2D1.1(b)(17) provides that
this enhancement shall not apply if the enhancement at Sec.
2D1.1(b)(13) applies. The Commission seeks comment on the interaction
between these two enhancements. Does the proposed enhancement at Sec.
2D1.1(b)(17) capture conduct and harm that the current enhancement at
Sec. 2D1.1(b)(13) does not?
2. Inflationary Adjustments
Synopsis of Proposed Amendment: This proposed amendment is a result
of the Commission's work in examining Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) and related guidelines to consider whether the
loss table should be revised to simplify application or to adjust for
inflation. See U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 90
FR 39263 (Aug. 14, 2025). As part of that work, the Commission is
considering whether to adjust all monetary tables and values in the
guidelines for inflation.
The monetary tables and values in the guidelines, including the
monetary values in the fine tables for individual defendants and for
organizational defendants, were last revised to account for inflation
in 2015. See USSG App. C, amend. 791 (effective Nov. 1, 2015). The
proposed amendment would amend the monetary tables in the guidelines to
adjust for inflation, i.e., the tables in Sec. Sec. 2B1.1 (Theft,
Property, Destruction, and Fraud), 2B2.1 (Burglary), 2B3.1 (Robbery),
2R1.1 (Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among
Competitors), 2T4.1 (Tax Table), 5E1.2 (Fines for Individual
Defendants), and 8C2.4 (Base Fine). The proposed amendment would adjust
the monetary tables and values in the guidelines using a specific
multiplier derived from the Bureau of Labor Statistics' Consumer Price
Index and then would round the amounts using a set of rules
extrapolated from the provisions for adjusting monetary penalties for
inflation set forth in section 5(a) of the Federal Civil Penalties
Inflation Adjustment Act of 1990. This is the same methodology the
Commission used in 2015. See USSG App. C, amend. 791 (effective Nov. 1,
2015).
In addition, the proposed amendment adjusts for inflation the
monetary value in specific offense characteristics in other Chapter Two
guidelines and includes conforming changes to guidelines that refer to
the monetary tables.
Issues for comment are also provided.
Proposed Amendment:
Section 2B1.1(b)(1) is amended by striking the following:
``If the loss exceeded $6,500, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $6,500 or less................... no increase
(B) More than$6,500.................. add 2
(C) More than $15,000................ add 4
(D) More than $40,000................ add 6
(E) More than $95,000................ add 8
(F) More than $150,000............... add 10
(G) More than $250,000............... add 12
(H) More than $550,000............... add 14
(I) More than $1,500,000............. add 16
(J) More than $3,500,000............. add 18
(K) More than $9,500,000............. add 20
(L) More than $25,000,000............ add 22
(M) More than $65,000,000............ add 24
(N) More than $150,000,000........... add 26
(O) More than $250,000,000........... add 28
(P) More than $550,000,000........... add 30.'';
------------------------------------------------------------------------
and inserting the following:
``If the loss exceeded $9,000, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $9,000 or less................... no increase
(B) More than $9,000................. add 2
(C) More than $20,000................ add 4
(D) More than $55,000................ add 6
(E) More than $150,000............... add 8
(F) More than $200,000............... add 10
(G) More than $350,000............... add 12
(H) More than $750,000............... add 14
(I) More than $2,000,000............. add 16
(J) More than $5,000,000............. add 18
(K) More than $15,000,000............ add 20
(L) More than $35,000,000............ add 22
(M) More than $90,000,000............ add 24
[[Page 59672]]
(N) More than $200,000,000........... add 26
(O) More than $350,000,000........... add 28
(P) More than $750,000,000........... add 30.''.
------------------------------------------------------------------------
Section 2B1.4(b)(1) is amended by striking ``$6,500'' and inserting
``$9,000''.
Section 2B1.5 is amended by striking ``If the value of the cultural
heritage resource or paleontological resource (A) exceeded $2,500 but
did not exceed $6,500, increase by 1 level; or (B) exceeded $6,500,
increase by the number of levels from the table in Sec. 2B1.1 (Theft,
Property Destruction, and Fraud) corresponding to that amount'' and
inserting ``If the value of the cultural heritage resource or
paleontological resource (A) exceeded $3,500 but did not exceed $9,000,
increase by 1 level; or (B) exceeded $9,000, increase by the number of
levels from the table in Sec. 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to that amount''.
Section 2B2.1(b)(2) is amended by striking the following:
``If the loss exceeded $5,000, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $5,000 or less................... no increase
(B) More than $5,000................. add 1
(C) More than $20,000................ add 2
(D) More than $95,000................ add 3
(E) More than $500,000............... add 4
(F) More than $1,500,000............. add 5
(G) More than $3,000,000............. add 6
(H) More than $5,000,000............. add 7
(I) More than $9,500,000............. add 8.'';
------------------------------------------------------------------------
and inserting the following:
``If the loss exceeded $7,000, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $7,000 or less................... no increase
(B) More than $7,000................. add 1
(C) More than $25,000................ add 2
(D) More than $150,000............... add 3
(E) More than $700,000............... add 4
(F) More than $2,000,000............. add 5
(G) More than $4,000,000............. add 6
(H) More than $7,000,000............. add 7
(I) More than $15,000,000............ add 8.''.
------------------------------------------------------------------------
Section 2B2.3(b)(3) is amended by striking ``If (A) the offense
involved invasion of a protected computer; and (B) the loss resulting
from the invasion (i) exceeded $2,500 but did not exceed $6,500,
increase by 1 level; or (ii) exceeded $6,500, increase by the number of
levels from the table in Sec. 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to that amount'' and inserting ``If (A) the
offense involved invasion of a protected computer; and (B) the loss
resulting from the invasion (i) exceeded $3,500 but did not exceed
$9,000, increase by 1 level; or (ii) exceeded $9,000, increase by the
number of levels from the table in Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount''.
Section 2B3.1 is amended by striking the following:
``If the loss exceeded $20,000, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $20,000 or less.................. no increase
(B) More than $20,000................ add 1
(C) More than $95,000................ add 2
(D) More than $500,000............... add 3
(E) More than $1,500,000............. add 4
(F) More than $3,000,000............. add 5
(G) More than $5,000,000............. add 6
(H) More than $9,500,000............. add 7.'';
------------------------------------------------------------------------
and inserting the following:
``If the loss exceeded $25,000, increase the offense level as
follows:
[[Page 59673]]
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $25,000 or less.................. no increase
(B) More than $25,000................ add 1
(C) More than $150,000............... add 2
(D) More than $700,000............... add 3
(E) More than $2,000,000............. add 4
(F) More than $4,000,000............. add 5
(G) More than $7,000,000............. add 6
(H) More than $15,000,000............ add 7.''.
------------------------------------------------------------------------
Section 2B3.2(b)(2) is amended by striking ``$20,000'' and
inserting ``$25,000''.
Section 2B3.3(b)(1) is amended by striking ``If the greater of the
amount obtained or demanded (A) exceeded $2,500 but did not exceed
$6,500, increase by 1 level; or (B) exceeded $6,500, increase by the
number of levels from the table in Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount'' and inserting
``If the greater of the amount obtained or demanded (A) exceeded $3,500
but did not exceed $9,000, increase by 1 level; or (B) exceeded $9,000,
increase by the number of levels from the table in Sec. 2B1.1 (Theft,
Property Destruction, and Fraud) corresponding to that amount''.
Section 2B4.1(b)(1) is amended by striking ``If the greater of the
value of the bribe or the improper benefit to be conferred (A) exceeded
$2,500 but did not exceed $6,500, increase by 1 level; or (B) exceeded
$6,500, increase by the number of levels from the table in Sec. 2B1.1
(Theft, Property Destruction, and Fraud) corresponding to that amount''
and inserting ``If the greater of the value of the bribe or the
improper benefit to be conferred (A) exceeded $3,500 but did not exceed
$9,000, increase by 1 level; or (B) exceeded $9,000, increase by the
number of levels from the table in Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount''.
Section 2B5.1(b)(1) is amended by striking ``If the face value of
the counterfeit items (A) exceeded $2,500 but did not exceed $6,500,
increase by 1 level; or (B) exceeded $6,500, increase by the number of
levels from the table in Sec. 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to that amount'' and inserting ``If the face value
of the counterfeit items (A) exceeded $3,500 but did not exceed $9,000,
increase by 1 level; or (B) exceeded $9,000, increase by the number of
levels from the table in Sec. 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to that amount''.
Section 2B5.3(b)(1) is amended by striking ``If the infringement
amount (A) exceeded $2,500 but did not exceed $6,500, increase by 1
level; or (B) exceeded $6,500, increase by the number of levels from
the table in Sec. 2B1.1 (Theft, Property Destruction, and Fraud)
corresponding to that amount'' and inserting ``If the infringement
amount (A) exceeded $3,500 but did not exceed $9,000, increase by 1
level; or (B) exceeded $9,000, increase by the number of levels from
the table in Sec. 2B1.1 (Theft, Property Destruction, and Fraud)
corresponding to that amount''.
Section 2B6.1(b)(1) is amended by striking ``If the retail value of
the motor vehicles or parts (A) exceeded $2,500 but did not exceed
$6,500, increase by 1 level; or (B) exceeded $6,500, increase by the
number of levels from the table in Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount'' and inserting
``If the retail value of the motor vehicles or parts (A) exceeded
$3,500 but did not exceed $9,000, increase by 1 level; or (B) exceeded
$9,000, increase by the number of levels from the table in Sec. 2B1.1
(Theft, Property Destruction, and Fraud) corresponding to that
amount''.
Section 2C1.1(b)(2) is amended by striking ``$6,500'' and inserting
``$9,000''.
Section 2C1.2(b)(2) is amended by striking ``$6,500'' and inserting
``$9,000''.
Section 2C1.8(b)(1) is amended by striking ``$6,500'' and inserting
``$9,000''.
Section 2E5.1(b)(2) is amended by striking ``If the value of the
prohibited payment or the value of the improper benefit to the payer,
whichever is greater (A) exceeded $2,500 but did not exceed $6,500,
increase by 1 level; or (B) exceeded $6,500, increase by the number of
levels from the table in Sec. 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to that amount'' and inserting ``If the value of
the prohibited payment or the value of the improper benefit to the
payer, whichever is greater (A) exceeded $3,500 but did not exceed
$9,000, increase by 1 level; or (B) exceeded $9,000, increase by the
number of levels from the table in Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount''.
Section 2Q2.1(b)(3)(A) is amended by striking ``If the market value
of the fish, wildlife, or plants (i) exceeded $2,500 but did not exceed
$6,500, increase by 1 level; or (ii) exceeded $6,500, increase by the
number of levels from the table in Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount'' and inserting
``If the market value of the fish, wildlife, or plants (i) exceeded
$3,500 but did not exceed $9,000, increase by 1 level; or (ii) exceeded
$9,000, increase by the number of levels from the table in Sec. 2B1.1
(Theft, Property Destruction, and Fraud) corresponding to that
amount''.
Section 2R1.1 is amended by striking the following:
``If the volume of commerce attributable to the defendant was more
than $1,000,000, adjust the offense level as follows:
------------------------------------------------------------------------
Volume of commerce (apply the greatest) Adjustment to offense level
------------------------------------------------------------------------
(A) More than $1,000,000................ add 2
(B) More than $10,000,000............... add 4
(C) More than $50,000,000............... add 6
(D) More than $100,000,000.............. add 8
(E) More than $300,000,000.............. add 10
(F) More than $600,000,000.............. add 12
(G) More than $1,200,000,000............ add 14
[[Page 59674]]
(H) More than $1,850,000,000............ add 16.'';
------------------------------------------------------------------------
and inserting the following:
``If the volume of commerce attributable to the defendant was more
than $1,500,000, adjust the offense level as follows:
------------------------------------------------------------------------
Volume of commerce (apply the greatest) Adjustment to offense level
------------------------------------------------------------------------
(A) More than $1,500,000................ add 2
(B) More than $15,000,000............... add 4
(C) More than $70,000,000............... add 6
(D) More than $150,000,000.............. add 8
(E) More than $400,000,000.............. add 10
(F) More than $800,000,000.............. add 12
(G) More than $1,650,000,000............ add 14
(H) More than $2,500,000,000............ add 16.''.
------------------------------------------------------------------------
Section 2T3.1(a) is amended--
in paragraph (1) by striking ``$1,500'' and inserting ``$2,000'';
in paragraph (2) by striking ``$200'' and inserting ``$300''; and
by striking ``$1,500'' and inserting ``$2,000'';
and in paragraph (3) by striking ``$200'' and inserting ``$300''.
Section 2T4.1 is amended by striking the following:
------------------------------------------------------------------------
Tax loss (apply the greatest) Offense level
------------------------------------------------------------------------
(A) $2,500 or less...................... 6
(B) More than $2,500.................... 8
(C) More than $6,500.................... 10
(D) More than $15,000................... 12
(E) More than $40,000................... 14
(F) More than $100,000.................. 16
(G) More than $250,000.................. 18
(H) More than $550,000.................. 20
(I) More than $1,500,000................ 22
(J) More than $3,500,000................ 24
(K) More than $9,500,000................ 26
(L) More than $25,000,000............... 28
(M) More than $65,000,000............... 30
(N) More than $150,000,000.............. 32
(O) More than $250,000,000.............. 34
(P) More than $550,000,000.............. 36.'';
------------------------------------------------------------------------
and inserting the following:
------------------------------------------------------------------------
Tax loss (apply the greatest) Offense level
------------------------------------------------------------------------
(A) $3,500 or less...................... 6
(B) More than $3,500.................... 8
(C) More than $9,000.................... 10
(D) More than $20,000................... 12
(E) More than $55,000................... 14
(F) More than $150,000.................. 16
(G) More than $350,000.................. 18
(H) More than $750,000.................. 20
(I) More than $2,000,000................ 22
(J) More than $5,000,000................ 24
(K) More than $15,000,000............... 26
(L) More than $35,000,000............... 28
(M) More than $90,000,000............... 30
(N) More than $200,000,000.............. 32
(O) More than $350,000,000.............. 34
(P) More than $750,000,000.............. 36.''.
------------------------------------------------------------------------
Section 5E1.2 is amended--
by striking the following:
[[Page 59675]]
Fine Table
------------------------------------------------------------------------
Offense level A Minimum B Maximum
------------------------------------------------------------------------
3 and below............................. $200 $9,500
4-5..................................... 500 9,500
6-7..................................... 1,000 9,500
8-9..................................... 2,000 20,000
10-11................................... 4,000 40,000
12-13................................... 5,500 55,000
14-15................................... 7,500 75,000
16-17................................... 10,000 95,000
18-19................................... 10,000 100,000
20-22................................... 15,000 150,000
23-25................................... 20,000 200,000
26-28................................... 25,000 250,000
29-31................................... 30,000 300,000
32-34................................... 35,000 350,000
35-37................................... 40,000 400,000
38 and above............................ 50,000 500,000.'';
------------------------------------------------------------------------
and inserting the following:
Fine Table
------------------------------------------------------------------------
Offense level A Minimum B Maximum
------------------------------------------------------------------------
3 and below............................. $300 $15,000
4-5..................................... 700 15,000
6-7..................................... 1,500 15,000
8-9..................................... 2,500 25,000
10-11................................... 5,500 55,000
12-13................................... 7,500 75,000
14-15................................... 10,000 100,000
16-17................................... 15,000 150,000
18-19................................... 15,000 150,000
20-22................................... 20,000 200,000
23-25................................... 25,000 250,000
26-28................................... 35,000 350,000
29-31................................... 40,000 400,000
32-34................................... 50,000 500,000
35-37................................... 55,000 550,000
38 and above............................ 70,000 700,000.'';
------------------------------------------------------------------------
and in subsection (h)--
in the heading by striking ``Instruction'' and inserting
``Instructions'';
and by inserting at the end the following new paragraph (2):
``(2) For offenses committed on or after November 1, 2015 but prior
to November 1, 2026, use the applicable fine guideline range that was
set forth in the version of Sec. 5E1.2(c) that was in effect on
November 1, 2025, rather than the applicable fine guideline range set
forth in subsection (c) above.''.
Section 8C2.4 is amended--
in subsection (d) by striking the following:
------------------------------------------------------------------------
Offense level Amount
------------------------------------------------------------------------
6 or less............................................ $8,500
7.................................................... 15,000
8.................................................... 15,000
9.................................................... 25,000
10................................................... 35,000
11................................................... 50,000
12................................................... 70,000
13................................................... 100,000
14................................................... 150,000
15................................................... 200,000
16................................................... 300,000
17................................................... 450,000
18................................................... 600,000
19................................................... 850,000
20................................................... 1,000,000
21................................................... 1,500,000
22................................................... 2,000,000
23................................................... 3,000,000
24................................................... 3,500,000
25................................................... 5,000,000
26................................................... 6,500,000
27................................................... 8,500,000
28................................................... 10,000,000
29................................................... 15,000,000
30................................................... 20,000,000
31................................................... 25,000,000
32................................................... 30,000,000
33................................................... 40,000,000
34................................................... 50,000,000
35................................................... 65,000,000
36................................................... 80,000,000
37................................................... 100,000,000
38 or more........................................... 150,000,000.'';
------------------------------------------------------------------------
and inserting the following:
------------------------------------------------------------------------
Offense level Amount
------------------------------------------------------------------------
6 or less............................................ $10,000
7.................................................... 20,000
8.................................................... 20,000
9.................................................... 35,000
10................................................... 50,000
11................................................... 70,000
12................................................... 95,000
13................................................... 150,000
14................................................... 200,000
15................................................... 250,000
16................................................... 400,000
17................................................... 600,000
18................................................... 800,000
19................................................... 1,000,000
20................................................... 1,500,000
[[Page 59676]]
21................................................... 2,000,000
22................................................... 2,500,000
23................................................... 4,000,000
24................................................... 5,000,000
25................................................... 7,000,000
26................................................... 9,000,000
27................................................... 10,000,000
28................................................... 15,000,000
29................................................... 20,000,000
30................................................... 25,000,000
31................................................... 35,000,000
32................................................... 40,000,000
33................................................... 55,000,000
34................................................... 70,000,000
35................................................... 90,000,000
36................................................... 100,000,000
37................................................... 150,000,000
38 or more........................................... 200,000,000.'';
------------------------------------------------------------------------
and in subsection (e)--
in the heading by striking ``Instruction'' and inserting
``Instructions'';
and by inserting at the end the following new paragraph (2):
``(2) For offenses committed on or after November 1, 2015 but prior
to November 1, 2026, use the offense level fine table that was set
forth in the version of Sec. 8C2.4(d) that was in effect on November
1, 2025, rather than the offense level fine table set forth in
subsection (d) above.''.
Issues for Comment
1. The Commission seeks comment on whether the monetary tables in
the guidelines should be adjusted for inflation. The monetary tables
set forth in the proposed amendment relate to a variety of different
offenses and apply to a number of different criminal statutes. Given
the difference between the types of offenses, should all monetary
tables be adjusted for inflation? Do the types of offenses or statutory
provisions related to any of the monetary tables suggest that it should
not be adjusted for inflation?
2. The Commission seeks comment on whether the monetary tables in
the guidelines should be adjusted on a regular basis, such as on an
annual, five-year, or ten-year basis, or at particular inflationary
measures, such as when $1.00 in the year the table was last adjusted
has the same buying power as $1.25 or $1.33 or $1.50 in the current
year? Should the Commission incorporate directly into the guidelines a
mechanism for automatically adjusting for inflation? Would the
incorporation of such a mechanism be consistent with the Commission's
statutory authority?
3. Economic Crimes
Synopsis of Proposed Amendment: In August 2025, the Commission
identified as one of its policy priorities for the amendment cycle
ending May 1, 2026, ``[e]xamination of Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) and related guidelines to ensure the guidelines
appropriately reflect the culpability of the individual and the harm to
the victim, including [] reassessing the role of actual loss, intended
loss, and gain[, ] considering whether the loss table in Sec. 2B1.1
should be revised to simplify application or to adjust for inflation,''
and ``possible consideration of amendments that might be appropriate.''
U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 90 FR 39263 (Aug.
14, 2025).
This proposed amendment contains two parts (Parts A and B). The
Commission is considering whether to promulgate either or both of these
parts, as they are not mutually exclusive.
Part A of the proposed amendment would restructure the loss table
at Sec. 2B1.1(b)(1) to simplify application of the table. Issues for
comment are also provided.
Part B of the proposed amendment would amend existing specific
offense characteristics (SOCs) and add new SOCs to Sec. 2B1.1 to
reflect the culpability of the individual and harm to the victim.
Issues for comment are also provided.
(A) Restructuring the Loss Table
Synopsis of Proposed Amendment: The loss table at Sec. 2B1.1(b)(1)
provides a tiered enhancement based on the amount of loss resulting
from the offense. Currently, there are 16 levels resulting in either no
increase or an increase of up to 30 levels.
The Commission has received comment from some stakeholders
advocating revising the loss table to simplify application and reduce
the fact-finding burden on courts. Part A of the proposed amendment
seeks to accomplish this by reducing the number of levels in the table.
By reducing the number of levels in the table, the Commission seeks to
ease the court's burden in cases involving a loss amount near the
margins of two levels.
As a starting point, Part A of the proposed amendment restructures
the loss table with wider ranges based on an analysis of the loss
amount attributed to each sentenced individual in fiscal year 2024,
creating five groups (or quintiles), with the loss amount for each
group representing approximately 20 percent of the individuals
sentenced under Sec. 2B1.1.
For individuals sentenced in fiscal year 2024, the data show that
for approximately 20 percent of individuals sentenced under Sec.
2B1.1, the offense involved $15,000 or less of loss, resulting in
either no enhancement or a 2-level enhancement; approximately 20
percent involved between $15,000 and $95,000, resulting in a 4- or 6-
level enhancement; approximately 20 percent involved between $95,000
and $250,000, resulting in an 8- or 10-level enhancement; approximately
20 percent involved between $250,000 and $1,500,000, resulting in a 12-
or 14-level enhancement; and approximately 20 percent involved more
than $1,500,000 of loss, resulting in an enhancement ranging from 16 to
30-levels.
Part A of the proposed amendment would consolidate the loss table
so that each of the first five levels would account for approximately
20 percent (a quintile) of cases sentenced under Sec. 2B1.1 as
reflected by the data described above. It also brackets the possibility
of amending the offense level enhancement associated with each
category. Under the revised table, offenses involving $15,000 of loss
or less would receive no increase, offenses involving more than $15,000
of loss would receive a [4]-level increase, offenses involving more
than $95,000 of loss would receive an [8]-level increase, offenses
involving more than $250,000 of loss would receive a [12]-level
increase, and offenses involving more than $1,500,000 of loss would
receive a [16]-level increase.
The revised table retains the loss categories in the top quintile
for offenses involving more than $9,500,000, $65,000,000, and
$250,000,000 while bracketing the possibility of amending the
associated offense level enhancements. These categories are retained to
provide an offense level increase for individuals with the highest loss
amounts.
The proposed amendment includes conforming changes to guidelines
that refer to the loss table at Sec. 2B1.1.
Issues for comment are also provided.
Proposed Amendment:
Section 2B1.1 is amended by striking the following:
``If the loss exceeded $6,500, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $6,500 or less...................... no increase
[[Page 59677]]
(B) More than $6,500.................... add 2
(C) More than $15,000................... add 4
(D) More than $40,000................... add 6
(E) More than $95,000................... add 8
(F) More than $150,000.................. add 10
(G) More than $250,000.................. add 12
(H) More than $550,000.................. add 14
(I) More than $1,500,000................ add 16
(J) More than $3,500,000................ add 18
(K) More than $9,500,000................ add 20
(L) More than $25,000,000............... add 22
(M) More than $65,000,000............... add 24
(N) More than $150,000,000.............. add 26
(O) More than $250,000,000.............. add 28
(P) More than $550,000,000.............. add 30.'';
------------------------------------------------------------------------
and inserting the following:
``If the loss exceeded $15,000, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $15,000 or less..................... no increase
(B) More than $15,000................... add [4]
(C) More than $95,000................... add [8]
(D) More than $250,000.................. add [12]
(E) More than $1,500,000................ add [16]
(F) More than $9,500,000................ add [20]
(G) More than $65,000,000............... add [24]
(H) More than $250,000,000.............. add [28].''.
------------------------------------------------------------------------
Section 2B1.4(b)(1) is amended by striking ``$6,500'' and inserting
``$15,000''.
Section 2B1.5(b)(1) is amended by striking ``$6,500'' both places
such term appears and inserting ``$15,000''.
Section 2B2.3(b)(3) is amended by striking ``$6,500'' both places
such term appears and inserting ``$15,000''.
Section 2B3.3(b)(1) is amended by striking ``$6,500'' both places
such term appears and inserting ``$15,000''.
Section 2B4.1(b)(1) is amended by striking ``$6,500'' both places
such term appears and inserting ``$15,000''.
Section 2B5.1(b)(1) is amended by striking ``$6,500'' both places
such term appears and inserting ``$15,000''.
Section 2B5.3(b)(1) is amended by striking ``$6,500'' both places
such term appears and inserting ``$15,000''.
Section 2B6.1(b)(1) is amended by striking ``$6,500'' both places
such term appears and inserting ``$15,000''.
Section 2C1.1(b)(2) is amended by striking ``$6,500'' and inserting
``$15,000''.
Section 2C1.2(b)(2) is amended by striking ``$6,500'' and inserting
``$15,000''.
Section 2C1.8(b)(1) is amended by striking ``$6,500'' and inserting
``$15,000''.
Section 2E5.1(b)(2) is amended by striking ``$6,500'' both places
such term appears and inserting ``$15,000''.
Section 2Q2.1(b)(3)(A) is amended by striking ``$6,500'' both
places such term appears and inserting ``$15,000''.
Issues for Comment
1. The Commission seeks comment on whether the restructured loss
table sufficiently accounts for the financial harm in economic crime
offenses. Would the proposed revisions to the loss table advance the
Commission's goals of simplifying application and reducing the court's
fact-finding burden? What are the advantages and disadvantages of
broader categories of loss? Are there other approaches the Commission
should consider?
2. Part A of the proposed amendment would amend the loss table by
establishing a loss exceeding $15,000 as the threshold to trigger an
enhancement. The Commission seeks comment on whether this amount is the
appropriate threshold to trigger an enhancement under the table. If
not, what amount should it be?
3. Part A of the proposed amendment would maintain the offense
level enhancement associated with each of the remaining loss
categories. The Commission seeks comment on whether the offense level
enhancements should be revised to account for the restructuring of the
loss table. If so, how should they be revised? That is, what is the
increase in offense level that should result from each loss category?
(B) Culpability Factors
Synopsis of Proposed Amendment: A wide variety of economic crimes
are referenced to Sec. 2B1.1. To account for the range of conduct,
Sec. 2B1.1 contains 20 specific offense characteristics (SOCs) and
four cross-references to other guidelines.
Among the 20 SOCs is a provision providing a tiered enhancement
based on the number of victims and the level of financial hardship to
those victims resulting from the offense. USSG Sec. 2B1.1(b)(2). There
is also an enhancement if the individual committed the offense using
``sophisticated means.'' USSG Sec. 2B1.1(b)(10)(C).
The Commission has heard from some stakeholders that Sec. 2B1.1
does not appropriately reflect the culpability of sentenced individuals
or the harm experienced by the victims. Specifically, some stakeholders
have suggested that the guidelines should measure an individual's
culpability by considering the non-economic harm to victims, in
addition to the economic impact and number of victims. Additionally,
some stakeholders have asked the Commission to consider amending the
sophisticated means enhancement because, in their view, the enhancement
[[Page 59678]]
is applied too broadly and for conduct that is not complex or
intricate. These stakeholders suggest that the enhancement is often
based on conduct that is inherent in economic crime offenses and
therefore is captured by the base offense level. Some stakeholders have
also noted that the enhancement is not applied uniformly because the
guidelines do not provide a clear standard. Some stakeholders have also
expressed concern that Sec. 2B1.1 does not adequately account for
mitigating factors for individuals with limited involvement in the
offense.
Part B of the proposed amendment seeks to address these concerns.
Part B of the proposed amendment would create a new specific
offense characteristic at Sec. 2B1.1(b)(3) by adding an enhancement
for offenses that resulted in substantial non-economic harm to one or
more victims. The amendment brackets the possibility of a 2-, 3-, or 4-
level enhancement. It would also provide a list of examples of ``non-
economic harm,'' including physical harm, psychological harm, emotional
trauma, harm to reputation or credit rating, and invasion of privacy.
Part B of the proposed amendment would amend the sophisticated
means enhancement at renumbered Sec. 2B1.1(b)(11). It would revise the
definition of ``sophisticated means'' to mean ``committing or
concealing an offense with a greater level of complexity than typical
for an offense of that nature'' and provide further guidance for courts
to use when determining whether conduct fits the definition.
Additionally, the definition of ``United States,'' as it applies to the
provision, would be moved from the commentary to the text of the
guideline.
Part B of the proposed amendment would also add two mitigating
factors. The first would provide for a [2]-level decrease if the
defendant committed the offense at the direction of his or her employer
for fear of negative employment consequences; was motivated by an
intimate or familial relationship or by threats or fear to commit the
offense and was otherwise unlikely to commit such an offense; or was
unusually vulnerable to being persuaded or induced to commit the
offense due to a physical or mental condition. The second mitigating
factor would provide for a tiered decrease based on whether, prior to
the defendant's knowledge of the criminal investigation or prosecution
for the offense, the defendant voluntarily ceased the criminal
activity, made efforts to return the money or property to the victim,
or reported the offense to appropriate governmental authorities.
Additionally, the Sec. 2B1.1 specific offense characteristics vary
widely in frequency of use. As part of its ongoing efforts to simplify
the Guidelines Manual, the Commission is considering deleting three
specific offense characteristics that courts have applied infrequently
(fewer than 1% of cases) in the last five fiscal years: Sec.
2B1.1(b)(3), (4), and (13).
Issues for comment are also provided.
Proposed Amendment:
Section 2B1.1(b) is amended--
by redesignating paragraphs (3) through (20) as paragraphs (4) through
(21), respectively;
by inserting after paragraph (2) the following new paragraph (3):
``(3) If the offense resulted in substantial non-economic harm to
one or more victims, increase by [2][3][4] levels. For purposes of this
provision, `non-economic harm' includes such harms as physical harm,
psychological harm, emotional trauma, harm to reputation or credit
rating, and invasion of privacy interest.'';
in paragraph (11) (as so redesignated) by inserting at the end the
following:
``For purposes of this provision:
`Sophisticated means' means committing or concealing an offense
with a greater level of complexity than typical for an offense of that
nature. Such complexity may be achieved through various methods,
including by using advanced or emerging technologies [in ways not
routinely employed by everyday users][in a more specialized, elaborate,
or unusual way than an ordinary user would]. Sophisticated means are
often used to increase the scale of the offense or to make especially
difficult the detection of the offense [or the detection of the
defendant's participation in the offense].
`United States' means each of the 50 states, the District of
Columbia, the Commonwealth of Puerto Rico, the United States Virgin
Islands, Guam, the Northern Mariana Islands, and American Samoa.'';
in paragraph (18)(C) (as so redesignated) by striking ``subsections
(b)(2) and (b)(17)(B)'' and inserting ``subsections (b)(2) and
(b)(18)(B)'';
and by inserting at the end the following new paragraphs (22) and
(23):
``(22) If the defendant (A) committed the offense at the direction
of his or her employer for fear of negative employment consequences;
(B) was motivated by an intimate or familial relationship or by threats
or fear to commit the offense and was otherwise unlikely to commit such
an offense; or (C) was unusually vulnerable to being persuaded or
induced to commit the offense due to a physical or mental condition,
decrease by [2] levels.
(23) (Apply the greatest) If, prior to the defendant's knowledge of
the criminal investigation or prosecution for the offense, the
defendant--
(A) voluntarily ceased the criminal activity, [returned the money
or property to the victim][made a good faith effort to the maximum
extent possible to return the money or property to the victim], and
reported the offense to appropriate governmental authorities, decrease
by [2][4][6] levels;
(B) voluntarily ceased the criminal activity and [returned the
money or property to the victim][made a good faith effort to the
maximum extent possible to return the money or property to the victim],
decrease by [2][4] levels; or
(C) voluntarily ceased the criminal activity, decrease by [2]
levels.''.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended--
in Note 5 by striking ``(b)(4)'' both places such term appears and
inserting ``(b)(5)'';
in Note 6 by striking ``(b)(6)'' both places such term appears and
inserting ``(b)(7)'';
in Note 7 by striking ``(b)(8)(B)'' both places such term appears
and inserting ``(b)(9)(B)'';
in Note 8--
in the heading by striking ``(b)(9)'' and inserting ``(b)(10)''
in subparagraph (A) by striking ``(b)(9)'' and inserting
``(b)(10)'';
in subparagraph (B) by striking ``(b)(9)(A)'' both places such term
appears and inserting ``(b)(10)(A)'';
in subparagraph (C) by striking ``(b)(9)(C)'' and inserting
``(b)(10)(C)'';
in subparagraph (D) by striking ``(b)(9)(D)'' and inserting
``(b)(10)(D)'';
in subparagraph (E)(i) by striking ``(b)(9)(A)'' both places such
term appears and inserting ``(b)(10)(A)'';
and in subparagraph (E)(ii) by striking ``(b)(9)(B)'' both places
such term appears and inserting ``(b)(10)(B)'';
in Note 9 by striking the following:
``Application of Subsection (b)(10).--
(A) Definition of United States.--For purposes of subsection
(b)(10)(B), `United States' means each of the 50 states, the District
of Columbia, the Commonwealth of Puerto Rico, the United States Virgin
Islands, Guam, the Northern Mariana Islands, and American Samoa.
(B) Sophisticated Means Enhancement under Subsection (b)(10)(C).--
For purposes of subsection (b)(10)(C), `sophisticated means' means
especially complex or especially intricate offense conduct pertaining
to
[[Page 59679]]
the execution or concealment of an offense. For example, in a
telemarketing scheme, locating the main office of the scheme in one
jurisdiction but locating soliciting operations in another jurisdiction
ordinarily indicates sophisticated means. Conduct such as hiding assets
or transactions, or both, through the use of fictitious entities,
corporate shells, or offshore financial accounts also ordinarily
indicates sophisticated means.
(C) Non-Applicability of Chapter Three Adjustment.--If the conduct
that forms the basis for an enhancement under subsection (b)(10) is the
only conduct that forms the basis for an adjustment under Sec. 3C1.1,
do not apply that adjustment under Sec. 3C1.1.'';
and inserting the following new Note 9:
``Application of Subsection (b)(11).--
[(A) Sophisticated Means Enhancement under Subsection (b)(11)(C).--
For purposes of subsection (b)(11)(C), an example of conduct ordinarily
indicating sophisticated means includes, in a telemarketing scheme,
locating the main office of the scheme in one jurisdiction but locating
soliciting operations in another jurisdiction. Conduct such as hiding
assets or transactions, or both, through the use of fictitious
entities, corporate shells, or offshore financial accounts also
ordinarily indicates sophisticated means.
(B) Non-Applicability of Chapter Three Adjustment.--]If the conduct
that forms the basis for an enhancement under subsection (b)(11) is the
only conduct that forms the basis for an adjustment under Sec. 3C1.1,
do not apply that adjustment under Sec. 3C1.1.'';
in Note 10--
in the heading by striking ``(b)(11)'' and inserting ``(b)(12)'';
in subparagraph (A) by striking ``(b)(11)'' and inserting
``(b)(12)'';
in subparagraph (C)--
in the heading by striking ``(b)(11)(C)(i)'' and inserting
``(b)(12)(C)(i)'';
in subparagraph (i) by striking ``(b)(11)(C)(i)'' and inserting
``(b)(12)(C)(i)'';
in subparagraph (ii) by striking ``(b)(11)(C)(i)'' and inserting
``(b)(12)(C)(i)'';
and in subparagraph (iii) by striking ``(b)(11)(C)(i)'' both places
such term appears and inserting ``(b)(12)(C)(i)'';
and in subparagraph (D) by striking ``(b)(11)(C)(ii)'' both places
such term appears and inserting ``(b)(12)(C)(ii)'';
in Note 11 by striking ``(b)(13)'' both places such term appears
and inserting ``(b)(14)'';
in Note 12 by striking ``(b)(15)'' both places such term appears
and inserting ``(b)(16)'';
in Note 13--
in the heading by striking ``(b)(17)(A)'' and inserting
``(b)(18)(A)'';
and in subparagraph (A) by striking ``(b)(17)(A)'' and inserting
``(b)(18)(A)'';
in Note 14--
in the heading by striking ``(b)(17)(B)'' and inserting
``(b)(18)(B)'';
in subparagraph (A) in the heading by striking ``(b)(17)(B)(i)''
and inserting ``(b)(18)(B)(i)'';
and in subparagraph (B) in the heading by striking
``(b)(17)(B)(ii)'' and inserting ``(b)(18)(B)(ii)'';
in Note 15--
in the heading by striking ``(b)(19)'' and inserting ``(b)(20)'';
in subparagraph (A) by striking ``(b)(19)'' and inserting
``(b)(20)'';
and in subparagraph (B) by striking ``(b)(19)(A)(iii)'' both places
such term appears and inserting ``(b)(20)(A)(iii)''; and striking
``(b)(17)(B)'' both places such term appears and inserting
``(b)(18)(b)'';
and in Note 16--
in the heading by striking ``(b)(20)'' and inserting ``(b)(21)'';
in subparagraph (A) by striking ``(b)(20)'' and inserting
``(b)(21)'';
in subparagraph (B) by striking ``(b)(20)'' and inserting
``(b)(21)'';
and in subparagraph (C) by striking ``(b)(20)'' and inserting
``(b)(21)''.
The Commentary to Sec. 2B1.1 captioned ``Background'' is amended
by striking the following:
''Subsection (b)(5) implements the instruction to the Commission in
section 2 of Public Law 105-101 and the directive to the Commission in
section 3 of Public Law 110-384.
Subsection (b)(7) implements the directive to the Commission in
section 10606 of Public Law 111-148.
Subsection (b)(8) implements the directive to the Commission in
section 7 of Public Law 112-186.
Subsection (b)(9)(D) implements, in a broader form, the directive
in section 3 of the College Scholarship Fraud Prevention Act of 2000,
Public Law 106-420.
Subsection (b)(10) implements, in a broader form, the instruction
to the Commission in section 6(c)(2) of Public Law 105-184.
Subsections (b)(11)(A)(i) and (B)(i) implement the instruction to
the Commission in section 4 of the Wireless Telephone Protection Act,
Public Law 105-172.
Subsection (b)(11)(C) implements the directive to the Commission in
section 4 of the Identity Theft and Assumption Deterrence Act of 1998,
Public Law 105-318. This subsection focuses principally on an
aggravated form of identity theft known as `affirmative identity theft'
or `breeding', in which a defendant uses another individual's name,
social security number, or some other form of identification (the
`means of identification') to `breed' (i.e., produce or obtain) new or
additional forms of identification. Because 18 U.S.C. 1028(d) broadly
defines `means of identification', the new or additional forms of
identification can include items such as a driver's license, a credit
card, or a bank loan. This subsection provides a minimum offense level
of level 12, in part because of the seriousness of the offense. The
minimum offense level accounts for the fact that the means of
identification that were `bred' (i.e., produced or obtained) often are
within the defendant's exclusive control, making it difficult for the
individual victim to detect that the victim's identity has been
`stolen.' Generally, the victim does not become aware of the offense
until certain harms have already occurred (e.g., a damaged credit
rating or an inability to obtain a loan). The minimum offense level
also accounts for the non-monetary harm associated with these types of
offenses, much of which may be difficult or impossible to quantify
(e.g., harm to the individual's reputation or credit rating,
inconvenience, and other difficulties resulting from the offense). The
legislative history of the Identity Theft and Assumption Deterrence Act
of 1998 indicates that Congress was especially concerned with providing
increased punishment for this type of harm.
Subsection (b)(12) implements the directive in section 5 of Public
Law 110-179.
Subsection (b)(14) implements the directive in section 3 of Public
Law 112-269.
Subsection (b)(16)(B) implements, in a broader form, the
instruction to the Commission in section 110512 of Public Law 103-322.
Subsection (b)(17)(A) implements, in a broader form, the
instruction to the Commission in section 2507 of Public Law 101-647.
Subsection (b)(17)(B)(i) implements, in a broader form, the
instruction to the Commission in section 961(m) of Public Law 101-73.
Subsection (b)(18) implements the directive in section 209 of
Public Law 110-326.
Subsection (b)(19) implements the directive in section 225(b) of
Public Law 107-296. The minimum offense level of level 24 provided in
subsection (b)(19)(B) for an offense that resulted in a substantial
disruption of a critical
[[Page 59680]]
infrastructure reflects the serious impact such an offense could have
on national security, national economic security, national public
health or safety, or a combination of any of these matters.'';
and inserting the following:
''Subsection (b)(6) implements the instruction to the Commission in
section 2 of Public Law 105-101 and the directive to the Commission in
section 3 of Public Law 110-384.
Subsection (b)(8) implements the directive to the Commission in
section 10606 of Public Law 111-148.
Subsection (b)(9) implements the directive to the Commission in
section 7 of Public Law 112-186.
Subsection (b)(10)(D) implements, in a broader form, the directive
in section 3 of the College Scholarship Fraud Prevention Act of 2000,
Public Law 106-420.
Subsection (b)(11) implements, in a broader form, the instruction
to the Commission in section 6(c)(2) of Public Law 105-184.
Subsections (b)(12)(A)(i) and (B)(i) implement the instruction to
the Commission in section 4 of the Wireless Telephone Protection Act,
Public Law 105-172.
Subsection (b)(12)(C) implements the directive to the Commission in
section 4 of the Identity Theft and Assumption Deterrence Act of 1998,
Public Law 105-318. This subsection focuses principally on an
aggravated form of identity theft known as `affirmative identity theft'
or `breeding', in which a defendant uses another individual's name,
social security number, or some other form of identification (the
`means of identification') to `breed' (i.e., produce or obtain) new or
additional forms of identification. Because 18 U.S.C. 1028(d) broadly
defines `means of identification', the new or additional forms of
identification can include items such as a driver's license, a credit
card, or a bank loan. This subsection provides a minimum offense level
of level 12, in part because of the seriousness of the offense. The
minimum offense level accounts for the fact that the means of
identification that were `bred' (i.e., produced or obtained) often are
within the defendant's exclusive control, making it difficult for the
individual victim to detect that the victim's identity has been
`stolen.' Generally, the victim does not become aware of the offense
until certain harms have already occurred (e.g., a damaged credit
rating or an inability to obtain a loan). The minimum offense level
also accounts for the non-monetary harm associated with these types of
offenses, much of which may be difficult or impossible to quantify
(e.g., harm to the individual's reputation or credit rating,
inconvenience, and other difficulties resulting from the offense). The
legislative history of the Identity Theft and Assumption Deterrence Act
of 1998 indicates that Congress was especially concerned with providing
increased punishment for this type of harm.
Subsection (b)(13) implements the directive in section 5 of Public
Law 110-179.
Subsection (b)(15) implements the directive in section 3 of Public
Law 112-269.
Subsection (b)(17)(B) implements, in a broader form, the
instruction to the Commission in section 110512 of Public Law 103-322.
Subsection (b)(18)(A) implements, in a broader form, the
instruction to the Commission in section 2507 of Public Law 101-647.
Subsection (b)(18)(B)(i) implements, in a broader form, the
instruction to the Commission in section 961(m) of Public Law 101-73.
Subsection (b)(19) implements the directive in section 209 of
Public Law 110-326.
Subsection (b)(20) implements the directive in section 225(b) of
Public Law 107-296. The minimum offense level of level 24 provided in
subsection (b)(20)(B) for an offense that resulted in a substantial
disruption of a critical infrastructure reflects the serious impact
such an offense could have on national security, national economic
security, national public health or safety, or a combination of any of
these matters.''.
The Commentary to Sec. 2J1.1 captioned ``Application Notes'' is
amended--
in Note 2 by striking ``Sec. 2B1.1(b)(9)(C)'' and inserting ``Sec.
2B1.1(b)(10)(C)'';
and in Note 3 by striking ``Sec. 2B1.1(b)(9)(C)'' and inserting
``Sec. 2B1.1(b)(10)(C)''.
Chapter Three, Part D is amended in the Concluding Commentary to
Part D of Chapter Three in Example 3 by striking ``Sec. 2B1.1(b)(10)''
and inserting ``Sec. 2B1.1(b)(11)''.
Issues for Comment
1. The Commission seeks comment on whether Part B of the proposed
amendment's addition of new subsection (b)(3) adequately addresses
substantial non-economic harm to victims. If not, what additional
factors or other provisions should the Commission include to address
those harms?
How should this new enhancement interact with other provisions in
Sec. 2B1.1 (Theft, Property Destruction, and Fraud) that account for
harm to victims? For example, how should this new enhancement interact
with the victims table in subsection (b)(2), the enhancement for theft
from the person of another in renumbered subsection (b)(4), the
enhancement for means of identification in renumbered subsection
(b)(12), and the enhancement for unauthorized public dissemination of
personal information in renumbered subsection (b)(19)(B)? Should this
new enhancement be cumulative with the victims table and the other
enhancements, or should the Commission reduce the cumulative impact of
these various provisions?
2. Part B of the proposed amendment would amend the definition of
``sophisticated means'' to mean ``committing or concealing an offense
with a greater level of complexity than typical for an offense of that
nature.'' It would also include a provision stating that the complexity
required by the ``sophisticated means'' definition ``may be achieved
through various methods, including by using advanced or emerging
technologies [in ways not routinely employed by everyday users][in a
more specialized, elaborate, or unusual way than an ordinary user
would].'' The Commission seeks comment on whether the proposed amended
definition of ``sophisticated means'' is the appropriate definition. Is
it an improvement over the current definition? Should the Commission
provide guidance regarding the level of complexity that is typical for
an offense of that nature? If so, what type of guidance should the
Commission provide? Further, should the Commission provide additional
guidance on what should be considered ``advanced or emerging
technologies'' or on how such technologies must be used for purposes of
applying the proposed definition? If so, what guidance should the
Commission provide?
Additionally, Part B of the proposed amendment brackets the
possibility of maintaining the examples of ``sophisticated means''
provided in Application Note 9, providing that, in a telemarketing
scheme, locating the main office of the scheme in one jurisdiction but
locating soliciting operations in another jurisdiction ordinarily
indicates sophisticated means and that conduct such as hiding assets or
transactions, or both, through the use of fictitious entities,
corporate shells, or offshore financial accounts also ordinarily
indicates sophisticated means. If the Commission amends the definition
of ``sophisticated means,'' should the Commission maintain these
examples? If not, should the Commission add additional factors or other
provisions to the definition of ``sophisticated means''?
[[Page 59681]]
3. Part B of the proposed amendment would add to Sec. 2B1.1 a new
[2]-level reduction at subsection (b)(22) if the individual committed
the offense under coercion or duress. The Commission seeks comment on
whether this new adjustment should apply more narrowly or more broadly.
The Commission also seeks comment on whether the criteria provided for
this new reduction are appropriate. Should any criterion be deleted or
changed? Should the Commission provide additional or different
criteria?
4. Part B of the proposed amendment would add to Sec. 2B1.1 a new
tiered reduction at subsection (b)(23) if the defendant took certain
actions prior to the defendant's knowledge of the criminal
investigation or prosecution of the offense. The Commission seeks
comment on whether this new adjustment should apply more narrowly or
more broadly. The Commission also seeks comment on whether the criteria
provided for this new reduction are appropriate. Should any criterion
be deleted or changed? Should the Commission provide additional or
different criteria? Should the proposed amendment instead replace the
tiered approach with a multi-factor test? If so, what factors should be
included for courts to consider when determining whether to provide an
offense level reduction?
The Commission is also considering a separate proposed amendment
that would provide a reduction at newly created Sec. 3E1.2 (Post-
Offense Rehabilitation) based on a defendant's positive post-offense
behavior or rehabilitative efforts. The Commission seeks comment on how
the proposed reduction at Sec. 2B1.1(b)(23) under Part B of this
proposed amendment should interact with the proposed reduction at Sec.
3E1.2 under the other amendment. Should the proposed reduction at Sec.
2B1.1(b)(23) be cumulative with a reduction at Sec. 3E1.2 for post-
offense rehabilitation, or should the Commission limit the cumulative
reduction of these provisions? Are there other provisions in the
Guidelines Manual that would interact with the proposed reduction at
Sec. 2B1.1(b)(23)? If so, how should the Commission account for the
interaction(s)?
5. Section 2B1.1 contains specific offense characteristics (SOCs)
that are applied infrequently. The Commission seeks comment on whether
it should simplify the guideline by amending or removing three
infrequently applied SOCs: Sec. 2B1.1(b)(3) (``If the offense involved
a theft from the person of another, increase by 2 levels''), (b)(4)
(``If the offense involved receiving stolen property, and the defendant
was a person in the business of receiving and selling stolen property,
increase by 2 levels''), and (b)(13) (``if the defendant was convicted
under 42 U.S.C. 408(a), Sec. 1011(a), or Sec. 1383a(a) and the
statutory maximum term of ten years' imprisonment applies, increase by
4 levels. If the resulting offense level is less than 12, increase to
level 12''). If so, by what criteria should the Commission determine
which SOCs to amend or remove?
4. Post-Offense Rehabilitation Adjustment
Synopsis of Proposed Amendment: In August 2025, the Commission
identified as one of its policy priorities for the amendment cycle
ending May 1, 2026, ``[e]xamination of whether the guidelines provide
appropriate adjustments for good behavior . . . and possible
consideration of amendments that might be appropriate.'' U.S. Sent'g
Comm'n, ``Notice of Final Priorities,'' 90 FR 39263 (Aug. 14, 2025).
The Commission has received comment suggesting that the guidelines
do not sufficiently incentivize or reward positive post-offense conduct
and rehabilitative efforts taken by defendants prior to sentencing.
While Sec. 3E1.1 (Acceptance of Responsibility) accounts for some
types of positive post-offense conduct when the court considers a
reduction for acceptance of responsibility, and Sec. 5K1.1
(Substantial Assistance to Authorities) accounts for the defendant's
cooperation with authorities, commenters have recommended that the
Commission consider positive post-offense conduct going beyond that
covered by both guidelines.
In response to these suggestions, the proposed amendment would add
a new Chapter Three adjustment at Sec. 3E1.2 (Post-Offense
Rehabilitation) providing a reduction if the defendant demonstrates
positive post-offense behavior or rehabilitative efforts. The proposed
amendment sets forth two options for the adjustment.
Option 1 provides in subsection (a) for a reduction when the
defendant demonstrates prior to sentencing positive post-offense
behavior or rehabilitative efforts. Subsection (b) instructs the court
that, in determining whether a defendant qualifies for the reduction,
it shall consider the actions and efforts [voluntarily
initiated][undertaken] by the defendant for the benefit of the
defendant's own rehabilitation, victim(s) of the offense, community, or
other people. It then provides a non-exhaustive list of factors for the
court to consider in making this determination. Subsection (c) provides
for an additional reduction if the defendant qualifies for a decrease
under subsection (a) and the positive post-offense behavior or
rehabilitative efforts were undertaken before the criminal
investigation or prosecution for the offense.
Option 2 provides in subsection (a) for a reduction if the
defendant demonstrates a sustained commitment to positive behavioral
change evidenced by post-offense behavior or rehabilitative efforts
that go beyond the typical actions undertaken by defendants prior to
sentencing. Subsection (b) instructs the court that, in determining
whether a defendant qualifies for the reduction, it shall consider the
actions and efforts [voluntarily initiated][undertaken] by the
defendant, and the timing of such actions and efforts, for the benefit
of the defendant's own rehabilitation, victim(s) of the offense,
community, or other people. It then provides some broad examples of the
types of efforts the court should consider for the adjustment, instead
of a list of considerations like the one provided in Option 1.
Issues for comment are also provided.
Proposed Amendment:
Chapter Three, Part E is amended--
in the heading by striking ``ACCEPTANCE OF RESPONSIBILITY'' and
inserting ``ACCEPTANCE OF RESPONSIBILITY AND POST-OFFENSE
REHABILITATION'';
and by inserting at the end the following new guideline:
Option 1 (Tiered Adjustments With Specific Considerations)
``Sec. 3E1.2. Post-Offense Rehabilitation
(a) If the defendant demonstrates prior to sentencing positive
post-offense behavior or rehabilitative efforts, decrease the offense
level by [1][2][3] levels.
(b) In determining whether a defendant qualifies for a reduction
under subsection (a), the court shall consider the actions and efforts
[voluntarily initiated][undertaken] by the defendant for the benefit of
the defendant's own rehabilitation, victim(s) of the offense,
community, or other people. Appropriate considerations include the
following:
(1) The defendant took appropriate steps to reduce or remedy the
harm caused by the offense.
(2) The defendant made [voluntary] payment of restitution or
[voluntarily] entered into an installment payment schedule for making
restitution to any victims of the offense(s).
[[Page 59682]]
(3) The defendant completed or is successfully participating in a
[voluntary] court rehabilitation program.
(4) The defendant completed or is successfully participating in a
treatment program to address the abuse of drugs, alcohol, or gambling.
(5) The defendant completed or is successfully participating in
counseling (e.g., mental health or anger management).
(6) The defendant completed or is successfully participating in a
General Education Development (or similar) program, vocational
training, or skills training.
(7) The defendant maintained or obtained gainful employment.
(8) The defendant provided [voluntary and] consistent financial
support to family members or dependents.
(9) The defendant performed volunteer or other civic, charitable,
or public service in the community.
(10) The defendant assisted in preventing another person from
engaging in unlawful conduct.
(11) The defendant assisted in promoting another person's
rehabilitation (e.g., identifying or getting into treatment a person
addicted to or regularly abusing controlled substances).
(c) If the defendant qualifies for a decrease under subsection (a)
and the positive post-offense behavior or rehabilitative efforts were
undertaken before the criminal investigation or prosecution for the
offense, decrease the offense level by [1][2] additional
[level][levels].''.
Option 2 (Adjustment Based on Standard With Examples)
``Sec. 3E1.2. Post-Offense Rehabilitation
(a) If the defendant demonstrates a sustained commitment to
positive behavioral change evidenced by post-offense behavior or
rehabilitative efforts that go beyond the typical actions undertaken by
defendants prior to sentencing, decrease the offense level by
[1][2][3][4] levels.
(b) In determining whether a defendant qualifies for a reduction
under subsection (a), the court should consider the actions and efforts
[voluntarily initiated][undertaken] by the defendant, and the timing of
such actions and efforts, for the benefit of the defendant's own
rehabilitation, victim(s) of the offense, community, or other people.
In making such determination, the court may consider any rehabilitative
efforts undertaken by the defendant, including personal and behavioral
changes of the defendant, steps taken to reduce or remedy the harm
caused by the offense, substance abuse rehabilitation, employment
history, academic and vocational achievements, role model behavior, and
community and family involvement.''.
Issues for Comment
1. The Commission has received comment suggesting that the
guidelines do not sufficiently incentivize or reward positive post-
offense conduct and rehabilitative efforts taken by defendants prior to
sentencing. The Commission seeks comment on whether the proposed
Chapter Three adjustment appropriately addresses these concerns. In
determining whether to apply the proposed reduction, should the court
consider a defendant's successful compliance with their pre-trial
conditions of release, if applicable, or institutional rules, if
detained? For example, should defendants only be considered for the
proposed reduction if they complied with all conditions of supervision
prior to sentencing or all institutional rules if detained prior to
sentencing? Are the considerations identified in Option 1 and the
examples provided in Option 2 appropriate for courts to consider in
determining whether a reduction under Sec. 3E1.2 is warranted? Should
the Commission provide additional or different considerations or
examples? If so, what should the Commission provide? Should any
consideration(s) or example(s) be excluded from consideration? If so,
which ones?
2. The Commission seeks comment on whether it should revise Option
2 of the proposed amendment to provide for a tiered reduction. For
example, should Option 2 provide for a reduction based on a defendant's
successful compliance with their pre-trial conditions of release, if
applicable, or institutional rules, if detained? Should Option 2 then
provide for an additional reduction based on post-offense behavior or
rehabilitative efforts undertaken by the defendant that go beyond the
typical actions undertaken by defendants prior to sentencing?
3. The Commission seeks comment on how the proposed reduction for
post-offense rehabilitation should take into account the timing of the
rehabilitative efforts undertaken by the defendant. When should such
efforts occur to be considered under the proposed adjustment? Should
such efforts be undertaken before the defendant is investigated or
indicted? Should the court be allowed to consider efforts undertaken
when the defendant is subject to an investigation by the authorities or
is indicted for the offense? What changes should be made to the
proposed amendment to address the timing of the defendant's efforts?
4. The proposed reduction accounts for rehabilitative efforts
[voluntarily initiated] [undertaken] by the defendant. This bracketed
``voluntariness'' requirement could exclude rehabilitative efforts made
pursuant to an order. Some defendants cannot afford to pay themselves
for rehabilitation or treatment programs and may rely on court-funded
programs to cover the costs of such programs. The Commission seeks
comment on whether the proposed reduction should allow for the
consideration of rehabilitative efforts made pursuant to an order. If
so, what changes should be made to the proposed amendment to account
for such efforts?
5. The proposed amendment sets forth a reduction applicable to
defendants who demonstrate positive post-offense behavior or
rehabilitative efforts prior to sentencing. Other guidelines, most
notably Sec. 3E1.1 (Acceptance of Responsibility), also account for
``post-offense rehabilitative efforts.'' See Sec. 3E1.1, comment.
(n.1(G)). Post-offense rehabilitative efforts may also include
providing substantial assistance to the authorities in the
investigation or prosecution of other individuals or offenses, which is
accounted for under Sec. 5K1.1 (Substantial Assistance to Authorities
(Policy Statement)).
The Commission seeks comment on how the proposed Chapter Three
adjustment for post-offense rehabilitation should interact with other
guidelines, especially Sec. 3E1.1 and Sec. 5K1.1. Are there other
guidelines that address similar concerns to those addressed by the
proposed adjustment? What are those guidelines and how should the
proposed adjustment interact with them? Should the Commission
distinguish the types of rehabilitative efforts to be accounted for
under the proposed adjustment from those that could be considered under
other guidelines? For example, should the proposed adjustment account
for efforts relating to the defendant's own rehabilitation or for the
benefit of the community or other people, while Sec. 3E1.1 accounts
for rehabilitative efforts relating to the offense committed by the
defendant? Should the Commission place a limitation on the extent of
the reduction under the proposed adjustment if the defendant also
received an adjustment under Sec. 3E1.1 and/or Sec. 5K1.1? If so,
what should the limit be? Are there any other guideline reductions that
the Commission should consider for purposes of limiting the extent of
the
[[Page 59683]]
reduction under the proposed adjustment?
6. The Commission is considering a separate proposed amendment that
would add to Sec. 2B1.1 (Theft, Property Destruction, and Fraud) a new
tiered reduction at subsection (b)(23) if the defendant took certain
actions prior to the criminal investigation or prosecution for the
offense. The Commission seeks comment on how the proposed Chapter Three
adjustment for post-offense rehabilitation should interact with the
proposed tiered reduction at Sec. 2B1.1(b)(23) set forth in the
proposed amendment on economic crimes. Should the proposed Chapter
Three adjustment for post-offense rehabilitation be cumulative with the
proposed tiered reduction at Sec. 2B1.1(b)(23), or should the
Commission limit the cumulative reduction of these provisions? Are
there other provisions in the Guidelines Manual that would interact
with the proposed Chapter Three adjustment for post-offense
rehabilitation? If so, how should the Commission account for the
interaction(s)?
5. Multiple Counts
Synopsis of Proposed Amendment: In August 2025, the Commission
identified as one of its policy priorities for the amendment cycle
ending May 1, 2026, ``[c]ontinued exploration of ways to simplify the
Guidelines Manual,'' including ``examining the operation of the
grouping rules in Chapter Three, Part D (Multiple Counts).'' U.S.
Sent'g Comm'n, ``Notice of Final Priorities,'' 90 FR 39263 (Aug. 14,
2025).
The guidelines generally require a single, combined offense level
in each case. Chapter Three, Part D (Multiple Counts) of the Guidelines
Manual ``provides the rules for determining a single offense level that
encompasses all the counts of which the defendant is convicted.'' USSG
Ch. 3, Pt. D, intro comment (Nov. 1, 2025). The rules in Part D apply
to multiple counts regardless of whether they are contained in the same
indictment or are contained in different indictments and sentences on
those counts are to be imposed at the same time. These rules also apply
to some single count cases that include additional conduct that is
treated under the Guidelines Manual as if it were a separate count of
conviction. See, e.g., USSG Sec. Sec. 1B1.2(c) & (d); 2G1.1(d),
2G1.3(d), 2G2.1(d). As provided in Sec. 3D1.1 (Procedure for
Determining Offense Level on Multiple Counts), the multiple count rules
proceed in three steps: (1) grouping the counts into distinct groups of
closely related counts by applying the rules specified in Sec. 3D1.2
(Groups of Closely Related Counts); (2) determining the offense level
applicable to each group, as provided in Sec. 3D1.3 (Offense Level
Applicable to Each Group of Closely Related Counts); and (3)
determining the combined offense level applicable to all groups using
the unit system, as provided in Sec. 3D1.4 (Determining the Combined
Offense Level).
The first step requires grouping counts ``involving substantially
the same harm.'' Subsections (a) through (d) of Sec. 3D1.2 set forth
the four situations when multiple counts involve substantially the same
harm: (a) when the counts involve the same victim and arise from a
single criminal act or transaction; (b) when the counts involve the
same victim and two or more distinct criminal transactions connected by
a common criminal objective or constituting part of a common scheme or
plan; (c) when one of the counts ``embodies conduct that is treated''
as a specific offense characteristic or adjustment in the guideline
applicable to another of the counts; and (d) when the counts involve
offenses to which the same guideline or two different guidelines ``of
the same general type'' apply and the offense level is determined
largely based on cumulative measures (such as total amount of harm or
loss, the quantity of a substance involved, or some other measure of
aggregate harm) or the offense behavior is ongoing or continuous in
nature. Section 3D1.2(d), which applies to the fourth situation
described above, provides lists of both offenses that are covered by
this rule and offenses that are excluded from application of this rule.
The rules contained in Sec. 3D1.2 aim to ensure that the guideline
range reflects the overall harm and conduct without accounting for the
same or similar conduct twice. More than one rule may provide a basis
for grouping, but only one rule must apply for counts to group.
The second step requires determining the offense level applicable
to each group. This determination depends on which grouping rule
applies. As provided in Sec. 3D1.3(a), each count grouped under Sec.
3D1.2(a)-(c) is calculated separately, and the offense level for the
group will be the highest offense level of the counts in the group.
Section 3D1.3(b) sets forth a different procedure for counts grouped
under Sec. 3D1.2(d). If the counts involve offenses to which the same
guideline applies, instead of calculating the offense level for each
count and choosing the count resulting in the highest offense level,
the guideline is applied one time using the aggregate harm or quantity
of the grouped counts to determine the offense level. The resulting
offense level will be applicable to the group of counts. However, if
the counts involve offenses of the same general type to which different
guidelines apply, each count is calculated separately, and the offense
level for the group will be the highest offense level of the counts in
the group.
The third and final step set forth in Sec. 3D1.4 requires
assigning units to determine the combined offense level. The group with
the highest offense level is assigned one unit, and each remaining
group is assigned either one, one-half, and no additional units. The
number of additional units is based on the relationship between the
group with the highest offense level and any remaining groups. One unit
is assigned to any remaining group of comparable seriousness, that is,
a group with the same offense level or with one to four fewer offense
levels. One-half unit is assigned to any remaining group of somewhat
comparable seriousness, that is, a group with five to eight fewer
offense levels. No units are assigned to any remaining group of
incomparable seriousness, that is, a group with nine or more fewer
offense levels. The total number of units determines whether--and the
extent to which--additional offense levels are assigned to the most
serious group.
The Commission is considering simplification of these multiple
count rules for three reasons. First, some commenters have requested
simplification of these rules because they are ``confusing'' and may
lead to ``incorrect calculations.'' Second, the Commission's HelpLine
responds to hundreds of calls each year from practitioners specifically
seeking guidance on the application of the multiple count rules. Third,
despite the expenditure of significant training resources, the
Commission has continued to observe misapplication of the multiple
count rules, resulting in unwarranted sentencing disparities.
The proposed amendment would amend the guidelines to simplify the
procedure for determining the single offense level for cases involving
multiple counts. It would replace the five guidelines in Chapter Three,
Part D with a single guideline at Sec. 3D1.1 that provides all the
steps necessary to determine the single offense level for multiple
counts. The revised Sec. 3D1.1 would contain the following four
subsections.
New subsection (a) provides that, if multiple counts use the same
guideline and the guideline is listed therein, the offense level for
this group of counts is determined using the combined offense
[[Page 59684]]
behavior taken as a whole. The guidelines listed in new subsection (a)
are the same guidelines that require aggregation under current Sec.
3D1.2(d). As such, new subsection (a) maintains the current approach
for aggregate harm offenses as set forth in current Sec. 3D1.3(b).
New subsection (b) provides that, if multiple counts use the same
guideline and the guideline is listed therein, the offense level for
each count is calculated separately and an adjustment based on the
number of counts applies to the count in this group resulting in the
highest offense level. The guidelines listed in new subsection (b) are
all guidelines that are not aggregated pursuant to current Sec.
3D1.2(d) and cover offenses against a person, offenses that frequently
result in a multiple count increase under the current Sec. 3D1.4, and
six guidelines that contain instructions providing for a multiple count
adjustment under certain circumstances.
New subsection (c) explains how to determine the offense level for
all counts, including the group of counts covered by new subsections
(a) and (b). It instructs to use the offense level from the count or
group of counts (as determined under subsections (a) and (b)) resulting
in the highest offense level.
New subsection (d) retains the provisions of current Sec. 3D1.1(b)
identifying certain types of convictions that are excluded from the
guideline rules applicable to multiple counts.
The proposed amendment would also make conforming changes
throughout the Guidelines Manual to reflect the new procedure of
determining the offense level applicable to cases involving multiple
counts, and the deletion of the current provisions of Chapter Three,
Part D.
Issues for comment are also provided.
Proposed Amendment:
Chapter Three, Part D is amended--
by striking in their entirety the Introductory Commentary,
Sec. Sec. 3D1.1 through 3D1.5, and the Concluding Commentary to Part D
of Chapter Three as follows:
``Introductory Commentary
This part provides rules for determining a single offense level
that encompasses all the counts of which the defendant is convicted.
These rules apply to multiple counts of conviction (A) contained in the
same indictment or information; or (B) contained in different
indictments or informations for which sentences are to be imposed at
the same time or in a consolidated proceeding. The single, `combined'
offense level that results from applying these rules is used, after
adjustment pursuant to the guidelines in subsequent parts, to determine
the sentence. These rules have been designed primarily with the more
commonly prosecuted federal offenses in mind.
The rules in this part seek to provide incremental punishment for
significant additional criminal conduct. The most serious offense is
used as a starting point. The other counts determine how much to
increase the offense level. The amount of the additional punishment
declines as the number of additional offenses increases.
Some offenses that may be charged in multiple-count indictments are
so closely intertwined with other offenses that conviction for them
ordinarily would not warrant increasing the guideline range. For
example, embezzling money from a bank and falsifying the related
records, although legally distinct offenses, represent essentially the
same type of wrongful conduct with the same ultimate harm, so that it
would be more appropriate to treat them as a single offense for
purposes of sentencing. Other offenses, such as an assault causing
bodily injury to a teller during a bank robbery, are so closely related
to the more serious offense that it would be appropriate to treat them
as part of the more serious offense, leaving the sentence enhancement
to result from application of a specific offense characteristic.
In order to limit the significance of the formal charging decision
and to prevent multiple punishment for substantially identical offense
conduct, this part provides rules for grouping offenses together.
Convictions on multiple counts do not result in a sentence enhancement
unless they represent additional conduct that is not otherwise
accounted for by the guidelines. In essence, counts that are grouped
together are treated as constituting a single offense for purposes of
the guidelines.
Some offense guidelines, such as those for theft, fraud and drug
offenses, contain provisions that deal with repetitive or ongoing
behavior. Other guidelines, such as those for assault and robbery, are
oriented more toward single episodes of criminal behavior. Accordingly,
different rules are required for dealing with multiple-count
convictions involving these two different general classes of offenses.
More complex cases involving different types of offenses may require
application of one rule to some of the counts and another rule to other
counts.
Some offenses, e.g., racketeering and conspiracy, may be
`composite' in that they involve a pattern of conduct or scheme
involving multiple underlying offenses. The rules in this part are to
be used to determine the offense level for such composite offenses from
the offense level for the underlying offenses.
Essentially, the rules in this part can be summarized as follows:
(1) If the offense guidelines in Chapter Two base the offense level
primarily on the amount of money or quantity of substance involved
(e.g., theft, fraud, drug trafficking, firearms dealing), or otherwise
contain provisions dealing with repetitive or ongoing misconduct (e.g.,
many environmental offenses), add the numerical quantities and apply
the pertinent offense guideline, including any specific offense
characteristics for the conduct taken as a whole. (2) When offenses are
closely interrelated, group them together for purposes of the multiple-
count rules, and use only the offense level for the most serious
offense in that group. (3) As to other offenses (e.g., independent
instances of assault or robbery), start with the offense level for the
most serious count and use the number and severity of additional counts
to determine the amount by which to increase that offense level.
Sec. 3D1.1. Procedure for Determining Offense Level on Multiple
Counts
(a) When a defendant has been convicted of more than one count, the
court shall:
(1) Group the counts resulting in conviction into distinct Groups
of Closely Related Counts (`Groups') by applying the rules specified in
Sec. 3D1.2.
(2) Determine the offense level applicable to each Group by
applying the rules specified in Sec. 3D1.3.
(3) Determine the combined offense level applicable to all Groups
taken together by applying the rules specified in Sec. 3D1.4.
(b) Exclude from the application of Sec. Sec. 3D1.2-3D1.5 the
following:
(1) Any count for which the statute (A) specifies a term of
imprisonment to be imposed; and (B) requires that such term of
imprisonment be imposed to run consecutively to any other term of
imprisonment. Sentences for such counts are governed by the provisions
of Sec. 5G1.2(a).
(2) Any count of conviction under 18 U.S.C. 1028A. See Application
Note 2(B) of the Commentary to Sec. 5G1.2 (Sentencing on Multiple
Counts of Conviction) for guidance on how sentences for multiple counts
of conviction under 18 U.S.C. 1028A should be imposed.
Commentary
Application Notes:
1. In General.--For purposes of sentencing multiple counts of
[[Page 59685]]
conviction, counts can be (A) contained in the same indictment or
information; or (B) contained in different indictments or informations
for which sentences are to be imposed at the same time or in a
consolidated proceeding.
2. Application of Subsection (b).--Subsection (b)(1) applies if a
statute (A) specifies a term of imprisonment to be imposed; and (B)
requires that such term of imprisonment be imposed to run consecutively
to any other term of imprisonment. See, e.g., 18 U.S.C. 924(c)
(requiring mandatory minimum terms of imprisonment, based on the
conduct involved, to run consecutively). The multiple count rules set
out under this part do not apply to a count of conviction covered by
subsection (b). However, a count covered by subsection (b)(1) may
affect the offense level determination for other counts. For example, a
defendant is convicted of one count of bank robbery (18 U.S.C. 2113),
and one count of use of a firearm in the commission of a crime of
violence (18 U.S.C. 924(c)). The two counts are not grouped together
pursuant to this guideline, and, to avoid unwarranted double counting,
the offense level for the bank robbery count under Sec. 2B3.1
(Robbery) is computed without application of the enhancement for weapon
possession or use as otherwise required by subsection (b)(2) of that
guideline. Pursuant to 18 U.S.C. 924(c), the mandatory minimum five-
year sentence on the weapon-use count runs consecutively to the
guideline sentence imposed on the bank robbery count. See Sec.
5G1.2(a).
Unless specifically instructed, subsection (b)(1) does not apply
when imposing a sentence under a statute that requires the imposition
of a consecutive term of imprisonment only if a term of imprisonment is
imposed (i.e., the statute does not otherwise require a term of
imprisonment to be imposed). See, e.g., 18 U.S.C. 3146 (Penalty for
failure to appear); 18 U.S.C. 924(a)(4) (regarding penalty for 18
U.S.C. 922(q) (possession or discharge of a firearm in a school zone));
18 U.S.C. 1791(c) (penalty for providing or possessing a controlled
substance in prison). Accordingly, the multiple count rules set out
under this part do apply to a count of conviction under this type of
statute.
Background: This section outlines the procedure to be used for
determining the combined offense level. After any adjustments from
Chapter Three, Parts E (Acceptance of Responsibility) and F (Early
Disposition Programs), and Chapter Four, Parts B (Career Offenders and
Criminal Livelihood) and C (Adjustment for Certain Zero-Point
Offenders) are made, this combined offense level is used to determine
the guideline sentence range. Chapter Five (Determining the Sentencing
Range and Options Under the Guidelines) discusses how to determine the
sentence from the (combined) offense level; Sec. 5G1.2 deals
specifically with determining the sentence of imprisonment when
convictions on multiple counts are involved. References in Chapter Five
(Determining the Sentencing Range and Options Under the Guidelines) to
the `offense level' should be treated as referring to the combined
offense level after all subsequent adjustments have been made.
Sec. 3D1.2. Groups of Closely Related Counts
All counts involving substantially the same harm shall be grouped
together into a single Group. Counts involve substantially the same
harm within the meaning of this rule:
(a) When counts involve the same victim and the same act or
transaction.
(b) When counts involve the same victim and two or more acts or
transactions connected by a common criminal objective or constituting
part of a common scheme or plan.
(c) When one of the counts embodies conduct that is treated as a
specific offense characteristic in, or other adjustment to, the
guideline applicable to another of the counts.
(d) When the offense level is determined largely on the basis of
the total amount of harm or loss, the quantity of a substance involved,
or some other measure of aggregate harm, or if the offense behavior is
ongoing or continuous in nature and the offense guideline is written to
cover such behavior.
Offenses covered by the following guidelines are to be grouped
under this subsection:
Sec. 2A3.5;
Sec. Sec. 2B1.1, 2B1.4, 2B1.5, 2B4.1, 2B5.1, 2B5.3, 2B6.1;
Sec. Sec. 2C1.1, 2C1.2, 2C1.8;
Sec. Sec. 2D1.1, 2D1.2, 2D1.5, 2D1.11, 2D1.13;
Sec. Sec. 2E4.1, 2E5.1;
Sec. Sec. 2G2.2, 2G3.1;
Sec. 2K2.1;
Sec. Sec. 2L1.1, 2L2.1;
Sec. 2N3.1;
Sec. 2Q2.1;
Sec. 2R1.1;
Sec. Sec. 2S1.1, 2S1.3;
Sec. Sec. 2T1.1, 2T1.4, 2T1.6, 2T1.7, 2T1.9, 2T2.1, 2T3.1.
Specifically excluded from the operation of this subsection are:
all offenses in Chapter Two, Part A (except Sec. 2A3.5);
Sec. Sec. 2B2.1, 2B2.3, 2B3.1, 2B3.2, 2B3.3;
Sec. 2C1.5;
Sec. Sec. 2D2.1, 2D2.2, 2D2.3;
Sec. Sec. 2E1.3, 2E1.4, 2E2.1;
Sec. Sec. 2G1.1, 2G1.3, 2G2.1;
Sec. Sec. 2H1.1, 2H2.1, 2H4.1;
Sec. Sec. 2L2.2, 2L2.5;
Sec. Sec. 2M2.1, 2M2.3, 2M3.1, 2M3.2, 2M3.3, 2M3.4, 2M3.5, 2M3.9;
Sec. Sec. 2P1.1, 2P1.2, 2P1.3;
Sec. 2X6.1.
For multiple counts of offenses that are not listed, grouping under
this subsection may or may not be appropriate; a case-by-case
determination must be made based upon the facts of the case and the
applicable guidelines (including specific offense characteristics and
other adjustments) used to determine the offense level.
Exclusion of an offense from grouping under this subsection does
not necessarily preclude grouping under another subsection.
Commentary
Application Notes:
1. Subsections (a)-(d) set forth circumstances in which counts are
to be grouped together into a single Group. Counts are to be grouped
together into a single Group if any one or more of the subsections
provide for such grouping. Counts for which the statute (A) specifies a
term of imprisonment to be imposed; and (B) requires that such term of
imprisonment be imposed to run consecutively to any other term of
imprisonment are excepted from application of the multiple count rules.
See Sec. 3D1.1(b)(1); id., comment. (n.1).
2. The term `victim' is not intended to include indirect or
secondary victims. Generally, there will be one person who is directly
and most seriously affected by the offense and is therefore
identifiable as the victim. For offenses in which there are no
identifiable victims (e.g., drug or immigration offenses, where society
at large is the victim), the `victim' for purposes of subsections (a)
and (b) is the societal interest that is harmed. In such cases, the
counts are grouped together when the societal interests that are harmed
are closely related. Where one count, for example, involves unlawfully
entering the United States and the other involves possession of
fraudulent evidence of citizenship, the counts are grouped together
because the societal interests harmed (the interests protected by laws
governing immigration) are closely related. In contrast, where one
count involves the sale of controlled substances and the other involves
an immigration law violation, the counts are not grouped together
because
[[Page 59686]]
different societal interests are harmed. Ambiguities should be resolved
in accordance with the purpose of this section as stated in the lead
paragraph, i.e., to identify and group `counts involving substantially
the same harm.'
3. Under subsection (a), counts are to be grouped together when
they represent essentially a single injury or are part of a single
criminal episode or transaction involving the same victim.
When one count charges an attempt to commit an offense and the
other charges the commission of that offense, or when one count charges
an offense based on a general prohibition and the other charges
violation of a specific prohibition encompassed in the general
prohibition, the counts will be grouped together under subsection (a).
Examples: (1) The defendant is convicted of forging and uttering
the same check. The counts are to be grouped together. (2) The
defendant is convicted of kidnapping and assaulting the victim during
the course of the kidnapping. The counts are to be grouped together.
(3) The defendant is convicted of bid rigging (an antitrust offense)
and of mail fraud for signing and mailing a false statement that the
bid was competitive. The counts are to be grouped together. (4) The
defendant is convicted of two counts of assault on a federal officer
for shooting at the same officer twice while attempting to prevent
apprehension as part of a single criminal episode. The counts are to be
grouped together. (5) The defendant is convicted of three counts of
unlawfully bringing aliens into the United States, all counts arising
out of a single incident. The three counts are to be grouped together.
But: (6) The defendant is convicted of two counts of assault on a
federal officer for shooting at the officer on two separate days. The
counts are not to be grouped together.
4. Subsection (b) provides that counts that are part of a single
course of conduct with a single criminal objective and represent
essentially one composite harm to the same victim are to be grouped
together, even if they constitute legally distinct offenses occurring
at different times. This provision does not authorize the grouping of
offenses that cannot be considered to represent essentially one
composite harm (e.g., robbery of the same victim on different occasions
involves multiple, separate instances of fear and risk of harm, not one
composite harm).
When one count charges a conspiracy or solicitation and the other
charges a substantive offense that was the sole object of the
conspiracy or solicitation, the counts will be grouped together under
subsection (b).
Examples: (1) The defendant is convicted of one count of conspiracy
to commit extortion and one count of extortion for the offense he
conspired to commit. The counts are to be grouped together. (2) The
defendant is convicted of two counts of mail fraud and one count of
wire fraud, each in furtherance of a single fraudulent scheme. The
counts are to be grouped together, even if the mailings and telephone
call occurred on different days. (3) The defendant is convicted of one
count of auto theft and one count of altering the vehicle
identification number of the car he stole. The counts are to be grouped
together. (4) The defendant is convicted of two counts of distributing
a controlled substance, each count involving a separate sale of 10
grams of cocaine that is part of a common scheme or plan. In addition,
a finding is made that there are two other sales, also part of the
common scheme or plan, each involving 10 grams of cocaine. The total
amount of all four sales (40 grams of cocaine) will be used to
determine the offense level for each count under Sec. 1B1.3(a)(2). The
two counts will then be grouped together under either this subsection
or subsection (d) to avoid double counting. But: (5) The defendant is
convicted of two counts of rape for raping the same person on different
days. The counts are not to be grouped together.
5. Subsection (c) provides that when conduct that represents a
separate count, e.g., bodily injury or obstruction of justice, is also
a specific offense characteristic in or other adjustment to another
count, the count represented by that conduct is to be grouped with the
count to which it constitutes an aggravating factor. This provision
prevents `double counting' of offense behavior. Of course, this rule
applies only if the offenses are closely related. It is not, for
example, the intent of this rule that (assuming they could be joined
together) a bank robbery on one occasion and an assault resulting in
bodily injury on another occasion be grouped together. The bodily
injury (the harm from the assault) would not be a specific offense
characteristic to the robbery and would represent a different harm. On
the other hand, use of a firearm in a bank robbery and unlawful
possession of that firearm are sufficiently related to warrant grouping
of counts under this subsection. Frequently, this provision will
overlap subsection (a), at least with respect to specific offense
characteristics. However, a count such as obstruction of justice, which
represents a Chapter Three adjustment and involves a different harm or
societal interest than the underlying offense, is covered by subsection
(c) even though it is not covered by subsection (a).
Sometimes there may be several counts, each of which could be
treated as an aggravating factor to another more serious count, but the
guideline for the more serious count provides an adjustment for only
one occurrence of that factor. In such cases, only the count
representing the most serious of those factors is to be grouped with
the other count. For example, if in a robbery of a credit union on a
military base the defendant is also convicted of assaulting two
employees, one of whom is injured seriously, the assault with serious
bodily injury would be grouped with the robbery count, while the
remaining assault conviction would be treated separately.
A cross reference to another offense guideline does not constitute
`a specific offense characteristic . . . or other adjustment' within
the meaning of subsection (c). For example, the guideline for bribery
of a public official contains a cross reference to the guideline for a
conspiracy to commit the offense that the bribe was to facilitate.
Nonetheless, if the defendant were convicted of one count of securities
fraud and one count of bribing a public official to facilitate the
fraud, the two counts would not be grouped together by virtue of the
cross reference. If, however, the bribe was given for the purpose of
hampering a criminal investigation into the offense, it would
constitute obstruction and under Sec. 3C1.1 would result in a 2-level
enhancement to the offense level for the fraud. Under the latter
circumstances, the counts would be grouped together.
6. Subsection (d) likely will be used with the greatest frequency.
It provides that most property crimes (except robbery, burglary,
extortion and the like), drug offenses, firearms offenses, and other
crimes where the guidelines are based primarily on quantity or
contemplate continuing behavior are to be grouped together. The list of
instances in which this subsection should be applied is not exhaustive.
Note, however, that certain guidelines are specifically excluded from
the operation of subsection (d).
A conspiracy, attempt, or solicitation to commit an offense is
covered under subsection (d) if the offense that is the object of the
conspiracy, attempt, or solicitation is covered under subsection (d).
Counts involving offenses to which different offense guidelines
apply are grouped together under subsection (d) if the offenses are of
the same general type
[[Page 59687]]
and otherwise meet the criteria for grouping under this subsection. In
such cases, the offense guideline that results in the highest offense
level is used; see Sec. 3D1.3(b). The `same general type' of offense
is to be construed broadly.
Examples: (1) The defendant is convicted of five counts of
embezzling money from a bank. The five counts are to be grouped
together. (2) The defendant is convicted of two counts of theft of
social security checks and three counts of theft from the mail, each
from a different victim. All five counts are to be grouped together.
(3) The defendant is convicted of five counts of mail fraud and ten
counts of wire fraud. Although the counts arise from various schemes,
each involves a monetary objective. All fifteen counts are to be
grouped together. (4) The defendant is convicted of three counts of
unlicensed dealing in firearms. All three counts are to be grouped
together. (5) The defendant is convicted of one count of selling
heroin, one count of selling PCP, and one count of selling cocaine. The
counts are to be grouped together. The Commentary to Sec. 2D1.1
provides rules for combining (adding) quantities of different drugs to
determine a single combined offense level. (6) The defendant is
convicted of three counts of tax evasion. The counts are to be grouped
together. (7) The defendant is convicted of three counts of discharging
toxic substances from a single facility. The counts are to be grouped
together. (8) The defendant is convicted on two counts of check forgery
and one count of uttering the first of the forged checks. All three
counts are to be grouped together. Note, however, that the uttering
count is first grouped with the first forgery count under subsection
(a) of this guideline, so that the monetary amount of that check counts
only once when the rule in Sec. 3D1.3(b) is applied. But: (9) The
defendant is convicted of three counts of bank robbery. The counts are
not to be grouped together, nor are the amounts of money involved to be
added.
7. A single case may result in application of several of the rules
in this section. Thus, for example, example (8) in the discussion of
subsection (d) involves an application of Sec. 3D1.2(a) followed by an
application of Sec. 3D1.2(d). Note also that a Group may consist of a
single count; conversely, all counts may form a single Group.
8. A defendant may be convicted of conspiring to commit several
substantive offenses and also of committing one or more of the
substantive offenses. In such cases, treat the conspiracy count as if
it were several counts, each charging conspiracy to commit one of the
substantive offenses. See Sec. 1B1.2(d) and accompanying commentary.
Then apply the ordinary grouping rules to determine the combined
offense level based upon the substantive counts of which the defendant
is convicted and the various acts cited by the conspiracy count that
would constitute behavior of a substantive nature. Example: The
defendant is convicted of two counts: conspiring to commit offenses A,
B, and C, and committing offense A. Treat this as if the defendant was
convicted of (1) committing offense A; (2) conspiracy to commit offense
A; (3) conspiracy to commit offense B; and (4) conspiracy to commit
offense C. Count (1) and count (2) are grouped together under Sec.
3D1.2(b). Group the remaining counts, including the various acts cited
by the conspiracy count that would constitute behavior of a substantive
nature, according to the rules in this section.
Background: Ordinarily, the first step in determining the combined
offense level in a case involving multiple counts is to identify those
counts that are sufficiently related to be placed in the same Group of
Closely Related Counts (`Group'). This section specifies four
situations in which counts are to be grouped together. Although it
appears last for conceptual reasons, subsection (d) probably will be
used most frequently.
A primary consideration in this section is whether the offenses
involve different victims. For example, a defendant may stab three
prison guards in a single escape attempt. Some would argue that all
counts arising out of a single transaction or occurrence should be
grouped together even when there are distinct victims. Although such a
proposal was considered, it was rejected because, in many cases, it
would not adequately capture the scope and impact of the criminal
behavior. Cases involving injury to distinct victims are sufficiently
comparable, whether or not the injuries are inflicted in distinct
transactions, so that each such count should be treated separately
rather than grouped together. Counts involving different victims (or
societal harms in the case of `victimless' crimes) are grouped together
only as provided in subsection (c) or (d).
Even if counts involve a single victim, the decision as to whether
to group them together may not always be clear cut. For example, how
contemporaneous must two assaults on the same victim be in order to
warrant grouping together as constituting a single transaction or
occurrence? Existing case law may provide some guidance as to what
constitutes distinct offenses, but such decisions often turn on the
technical language of the statute and cannot be controlling. In
interpreting this part and resolving ambiguities, the court should look
to the underlying policy of this part as stated in the Introductory
Commentary.
Sec. 3D1.3. Offense Level Applicable to Each Group of Closely
Related Counts
Determine the offense level applicable to each of the Groups as
follows:
(a) In the case of counts grouped together pursuant to Sec.
3D1.2(a)-(c), the offense level applicable to a Group is the offense
level, determined in accordance with Chapter Two and Parts A, B, and C
of Chapter Three, for the most serious of the counts comprising the
Group, i.e., the highest offense level of the counts in the Group.
(b) In the case of counts grouped together pursuant to Sec.
3D1.2(d), the offense level applicable to a Group is the offense level
corresponding to the aggregated quantity, determined in accordance with
Chapter Two and Parts A, B and C of Chapter Three. When the counts
involve offenses of the same general type to which different guidelines
apply, apply the offense guideline that produces the highest offense
level.
Commentary
Application Notes:
1. The `offense level' for a count refers to the offense level from
Chapter Two after all adjustments from Parts A, B, and C of Chapter
Three.
2. When counts are grouped pursuant to Sec. 3D1.2(a)-(c), the
highest offense level of the counts in the group is used. Ordinarily,
it is necessary to determine the offense level for each of the counts
in a Group in order to ensure that the highest is correctly identified.
Sometimes, it will be clear that one count in the Group cannot have a
higher offense level than another, as with a count for an attempt or
conspiracy to commit the completed offense. The formal determination of
the offense level for such a count may be unnecessary.
3. When counts are grouped pursuant to Sec. 3D1.2(d), the offense
guideline applicable to the aggregate behavior is used. If the counts
in the Group are covered by different guidelines, use the guideline
that produces the highest offense level. Determine whether the specific
offense characteristics or adjustments from Chapter Three, Parts A, B,
and C apply based upon the combined offense behavior taken as a whole.
Note that guidelines for similar property offenses have been
coordinated to produce identical offense levels, at least when
substantial property losses
[[Page 59688]]
are involved. However, when small sums are involved the differing
specific offense characteristics that require increasing the offense
level to a certain minimum may affect the outcome.
Background: This section provides rules for determining the offense
level associated with each Group of Closely Related Counts. Summary
examples of the application of these rules are provided at the end of
the Commentary to this part.
Sec. 3D1.4. Determining the Combined Offense Level
The combined offense level is determined by taking the offense
level applicable to the Group with the highest offense level and
increasing that offense level by the amount indicated in the following
table:
------------------------------------------------------------------------
Number of units Increase in offense level
------------------------------------------------------------------------
1......................................... none.
1\1/2\.................................... add 1 level.
2......................................... add 2 levels.
2\1/2\-3.................................. add 3 levels.
3\1/2\-5.................................. add 4 levels.
More than 5............................... add 5 levels.
------------------------------------------------------------------------
In determining the number of Units for purposes of this section:
(a) Count as one Unit the Group with the highest offense level.
Count one additional Unit for each Group that is equally serious or
from 1 to 4 levels less serious.
(b) Count as one-half Unit any Group that is 5 to 8 levels less
serious than the Group with the highest offense level.
(c) Disregard any Group that is 9 or more levels less serious than
the Group with the highest offense level. Such Groups will not increase
the applicable offense level but may provide a reason for sentencing at
the higher end of the sentencing range for the applicable offense
level.
Commentary
Application Notes:
1. Application of the rules in Sec. Sec. 3D1.2 and 3D1.3 may
produce a single Group of Closely Related Counts. In such cases, the
combined offense level is the level corresponding to the Group
determined in accordance with Sec. 3D1.3.
2. The procedure for calculating the combined offense level when
there is more
[…truncated; see source link]Indexed from Federal Register on December 19, 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.