Notice2026-02441
Sentencing Guidelines for United States Courts
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 6, 2026
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.
Full Text
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<title>Federal Register, Volume 91 Issue 25 (Friday, February 6, 2026)</title>
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[Federal Register Volume 91, Number 25 (Friday, February 6, 2026)]
[Notices]
[Pages 5556-5576]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02441]
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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 March 18, 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
[[Page 5557]]
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 Commission published a notice of proposed amendments in the
Federal Register on December 19, 2025 (see 90 FR 59660). Those proposed
amendments have a public comment period ending on February 10, 2026.
The Commission is now considering promulgating additional amendments to
the sentencing guidelines, policy statements, and commentary. This
notice sets forth those proposed amendments.
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 two-part proposed amendment relating to sentencing options,
including (A) (i) amendments to Chapter Five, Part A (Sentencing Table)
to add a new Introductory Commentary highlighting the broad range of
sentencing options that are statutorily provided and the recognition
that different sentencing factors may weigh differently in different
cases, and a new guideline at Sec. 5A1.1 (Determination of Type of
Sentence) providing an overview of the steps necessary for the court to
determine an appropriate sentence pursuant to Chapter Five; and (ii)
related issues for comment; and (B) amendments to Chapter Five to
expand Zones B and C of the Sentencing Table, and related issues for
comment.
(2) A proposed amendment relating to the career offender
guidelines, including (A) options for amending Sec. 4B1.2 (Definitions
of Terms Used in Section 4B1.1) to address recurrent criticism of the
categorical approach and modified categorical approach in the context
of the ``crime of violence'' definition; (B) options for amending Sec.
4B1.2 to limit the scope of the ``controlled substance offense''
definition; (C) options for amending the Commentary to Sec. 2K2.1
(Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition)
to address the references to the definitions of ``crime of violence''
and ``controlled substance offense'' found in Sec. 4B1.2; and (D)
related issues for comment.
(3) A proposed amendment relating to two circuit conflicts
involving the definition of ``controlled substance offense'' in
subsection (b) of Sec. 4B1.2 (Definitions of Terms Used in Section
4B1.1), including (A) options for amending Sec. 4B1.2 and the
Commentary to Sec. 2L1.2 (Unlawfully Entering or Remaining in the
United States) to address both circuit conflicts; and (B) related
issues for comment.
(4) A proposed amendment to Sec. 2L1.1 (Smuggling, Transporting,
or Harboring an Unlawful Alien) in response to concerns that the
guideline does not appropriately account for the consideration of
factors such as the number of humans smuggled and whether the offense
involved bodily injury or sexual assault, and related issues for
comment.
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-january-2026">https://www.ussc.gov/guidelines/amendments/proposed-2026-amendments-federal-sentencing-guidelines-published-january-2026</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. Sentencing Options
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 how the guidelines can provide
courts with additional guidance on selecting the appropriate sentencing
option (e.g., imprisonment, probation, or fine), 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). As
part of this examination, the Commission held a
[[Page 5558]]
Sentencing Options Roundtable in December 2025, which was attended by a
wide range of stakeholders. Participants expressed varying views on how
the Commission should proceed with the sentencing options priority,
ranging from no or very limited action to fundamental restructuring of
the sentence type determination.
The proposed amendment is informed by feedback received from
stakeholders. It 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. The proposed amendment would retain
the Guideline Manual's zone-based structure, which provides for
flexibility in the sentencing options available for defendants whose
guideline ranges fall within Zones A through C of the Sentencing Table.
Part A of the proposed amendment would provide further guidance on
determining the appropriate sentence type from among those authorized
by the guidelines and emphasize the importance of this threshold
determination. Part B of the proposed amendment would expand Zones B
and C to increase the availability of sentencing options for certain
defendants.
In General
Chapter Five (Determining the Sentencing Range and Options Under
the Guidelines) of the Guidelines Manual sets forth the steps used to
determine the applicable sentencing range and sentencing options based
upon the guideline calculations made in Chapters Two through Four. It
also sets forth ``zones'' in the Sentencing Table that authorize
different sentencing options. The chapter is divided into several parts
that set forth the sentencing requirements and options under the
guidelines related to probation, imprisonment, supervision conditions,
fines, and restitution for the particular guideline range.
Part A (Sentencing Table) sets forth the Sentencing Table that is
used to determine the applicable guideline range based on the
intersection of the offense level (determined pursuant to Chapters Two
and Three) and the criminal history category (determined pursuant to
Chapter Four) applicable to the defendant. The Sentencing Table sorts
all sentencing ranges into four zones, labeled Zones A through D.
Part B (Probation) addresses probation, including the imposition
decision itself, the length of a term of probation, and the conditions
of probation.
Part C (Imprisonment) sets forth the provisions relating to how the
minimum and maximum terms of the applicable guideline range may be
satisfied according to the pertinent zone of the Sentencing Table.
Part D (Supervised Release) addresses supervised release, including
the imposition decision itself, the length of a term of supervised
release, and the conditions of supervised release.
Part E (Restitution, Fines, Assessments, Forfeitures) addresses the
determination of whether to impose restitution, fines, forfeiture, and
assessments.
Part F (Sentencing Options) sets forth additional conditions that
the court may impose as part of the sentence.
The zones of the Sentencing Table generally provide the sentencing
options that the courts consider in determining the appropriate
sentence. The zones are allocated in the Sentencing Table in Part A of
Chapter Five. However, the sentencing options that these zones
authorize are set out in provisions distributed throughout several
parts of Chapter Five. In general, each zone authorizes different
sentencing options, as follows:
Zone A.--All sentencing ranges within Zone A, regardless of the
underlying offense level or criminal history category, are zero to six
months. Zone A authorizes a sentence that is probation-only, probation
with a confinement condition (home detention, community confinement, or
intermittent confinement), a split sentence (term of imprisonment with
term of supervised release with condition of confinement), or
imprisonment. Zone A is the only zone that authorizes probation without
any conditions of confinement.
Zone B.--Sentencing ranges in Zone B are from 1-7 to 9-15 months of
imprisonment. Zone B authorizes a probation term to be substituted for
imprisonment, contingent upon the probation term including conditions
of confinement sufficient to satisfy the minimum term specified in the
guideline range. Zone B also authorizes a term of imprisonment (of at
least one month) followed by a term of supervised release with a
condition of confinement (i.e., a ``split sentence'') or a term of
imprisonment only.
Zone C.--Sentencing ranges in Zone C are 10-16 or 12-18 months of
imprisonment. Zone C authorizes a ``split sentence,'' which must
include a term of imprisonment equivalent to at least half of the
minimum of the applicable guideline range. The remaining half of the
term requires supervised release with a condition of community
confinement or home detention. Alternatively, the court has the option
of imposing a term of imprisonment only.
Zone D.-- Zone D authorizes imprisonment only, with sentencing
ranges ranging from 15-21 months to life imprisonment.
Part A (Changes to Part A of Chapter Five)
Part A of the proposed amendment would generally amend Part A of
Chapter Five to make two changes, either one or both of which could be
promulgated. First, Part A of the proposed amendment would add new
Introductory Commentary to Part A of Chapter Five. Second, it would add
a new guideline at Sec. 5A1.1 (Determination of Type of Sentence) and,
as a result, would designate the Sentencing Table as Sec. 5A1.2 and
make technical changes to the existing Introductory Commentary to
Chapter Five. The Commission is considering a range of alternatives:
only promulgating the new introductory commentary to Part A set forth
below; only promulgating the new guideline at Sec. 5A1.1 set forth
below; promulgating both the new introductory commentary and new Sec.
5A1.1 set forth below; or only promulgating a version of new
introductory commentary to Part A that also incorporates some of the
text that now appears within new Sec. 5A1.1 set forth below.
The proposed Introductory Commentary to Part A of Chapter Five
draws from the legislative history of the Sentencing Reform Act,
highlighting the broad range of sentencing options that are statutorily
provided and the recognition that different sentencing factors may
weigh differently in different cases. It emphasizes that a sentence of
probation serves a punitive function, citing to the legislative history
of the Sentencing Reform Act and certain Supreme Court jurisprudence.
The proposed guideline at Sec. 5A1.1 would provide an overview of
the steps necessary for the court to determine an appropriate sentence
pursuant to Chapter Five. New Sec. 5A1.1 would contain the following
four subsections.
Subsection (a) instructs the court to determine the sentencing
options that are available under the guidelines by determining the
guideline range and zone of the Sentencing Table applicable to the
defendant. Paragraphs (1) through (4) summarize the authorized
sentencing options in each of Zone A through D with cross-references to
the relevant provisions of Chapter Five. Application Note 1 restates
the rule currently set forth in the Commentary to Sec. 5E1.2 (Fines
for Individual Defendants) that ``[a] fine may be the
[[Page 5559]]
sole sanction if the guidelines do not require a term of
imprisonment.'' USSG Sec. 5E1.2, comment. (n.1).
Subsection (b) instructs the court to determine the appropriate
sentencing options from among those authorized in the guidelines.
Subsection (c) directs the court to the relevant provisions of
Chapter Five according to the type of sentence it intends to impose for
further guidance on determining the length, conditions, and other
aspects of the sentence. More specifically, it directs the court to
Part B (Probation) for sentences of probation, Parts C (Imprisonment)
and D (Supervised Release) for sentences of imprisonment, Part E
(Restitution, Fines, Assessments, Forfeitures) in all cases, Part F
(Sentencing Options) in certain cases, and Part G (Implementing the
Total Sentence of Imprisonment) if applicable.
Subsection (d) recognizes the court's authority and duty under 18
U.S.C. 3553, which permits the court to impose any statutorily
authorized sentence [even if that same sentence is not authorized by
the guidelines].
Issues for comment are also provided.
Part B (Expansion of Zones B and C of the Sentencing Table)
Part B of the proposed amendment would expand Zones B and C of the
Sentencing Table. The expanded Zone B would authorize the sentencing
options described above for sentencing ranges from four to 57 months
for Criminal History Category I and sentencing ranges from one to 18
months for the other criminal history categories. The expanded Zone C
would authorize the sentencing options described above for sentencing
ranges from 51 to 108 months for Criminal History Category I,
sentencing ranges from 15 to 24 months for Criminal History Categories
II through IV, and sentencing ranges from 15 to 21 months for Criminal
History Categories V and VI.
Finally, Part B makes conforming changes to Sec. Sec. 5B1.1
(Imposition of a Term of Probation) and 5C1.1 (Imposition of a Term of
Imprisonment).
Issues for comment are also provided.
(A) Changes to Part A of Chapter Five
Proposed Amendment:
Chapter Five is amended in the Introductory Commentary by striking
``Chapter Five sets forth the steps used to determine the applicable
sentencing range based upon the guideline calculations made in Chapters
Two through Four. Additionally, the provisions'' and inserting
``Chapter Five sets forth the steps used to determine the applicable
sentencing range and sentencing options based upon the guideline
calculations made in Chapters Two through Four. The provisions''.
Chapter Five, Part A is amended--
in the heading by striking ``Sentencing Table'' and inserting
``Determination of Type of Sentence and Sentencing Range'';
by inserting at the beginning the following new Introductory
Commentary:
``Introductory Commentary
Congress charged the Commission with promulgating guidelines for
sentencing courts to use in determining `whether to impose a sentence
to probation, a fine, or a term of imprisonment' (see 28 U.S.C.
994(a)(1)(A)), which `may be one of the most important parts of the
guidelines process.' See S. Rep. No. 225, 98th Cong., 1st Sess. 163-64
(1983). The provisions within Chapter Five, in combination, guide all
aspects of determining the appropriate sentence under the guidelines,
including the initial determination of sentence type. The Commission,
however, adopted [Part A of this chapter][this introductory commentary]
to further underscore the importance of this critical decision.
[In promulgating the guidelines in this part, the][The] Commission
is mindful that Congress decided against establishing a presumption in
favor of any particular sentence type, wary that `[a] congressional
statement of a preferred type of sentence might serve only to undermine
the flexibility that the criminal justice system requires in order to
determine the appropriate sentence in a particular case in light of
increased knowledge of human behavior.' Id. at 92. The Commission
likewise recognizes, as Congress did when it enacted the Sentencing
Reform Act of 1984, `that one [sentencing] purpose may have more
bearing on the imposition of sentence in a particular case than another
purpose has.' Id. at 68. For example, `the purpose of rehabilitation
may play an important role in sentencing an offender to a term of
probation with the condition that he participate in a particular course
of study, while the purposes of just punishment and incapacitation may
be important considerations in sentencing a repeated or violent
offender to a relatively long term of imprisonment.' Id. At the same
time, non-imprisonment sentences undoubtedly serve a punitive function
and in many cases would adequately serve the purposes of sentencing
when appropriate conditions are imposed. See, e.g., id. at 91 (`It may
very often be that release on probation under conditions designed to
fit the particular situation will adequately satisfy any appropriate
deterrent or punitive purpose.'); Gall v. United States, 552 U.S. 38,
48 (2007) (recognizing that though `custodial sentences are
qualitatively more severe than probationary sentences of equivalent
terms[,]' individuals `on probation are nonetheless subject to several
standard conditions that substantially restrict their liberty');
Esteras v. United States, 606 U.S. 185, 196 (2025) (juxtaposing the
purposes of probation and supervised release, explaining that `[f]ines,
probation, and imprisonment are a court's primary tools for ensuring
that a criminal defendant receives just deserts for the original
offense'). Congress recognized the important role of non-imprisonment
sentences when it established probation as a sentence in itself as part
of the Sentencing Reform Act. [As the criminal justice system continues
to develop more advanced tools to assess and respond to individual
defendants' unique risks and needs, the court should consider the
resources available to address the defendant's needs, and the setting
in which those resources can be provided, in determining the
appropriate sentencing option.] The Commission intends for [Sec. 5A1.1
(Determination of Type of Sentence)][Chapter Five] to support the
court's `full exercise of informed discretion in tailoring sentences to
the circumstances of individual cases.' S. Rep. No. 225, 98th Cong.,
1st Sess. 91 (1983).'';
in the Sentencing Table, by redesignating the Sentencing Table as
Sec. 5A1.2 and inserting the following new heading ``Sec. 5A1.2.
Sentencing Table'';
and by inserting before Sec. 5A1.2 (as so redesignated) the
following new Sec. 5A1.1:
``Sec. 5A1.1. Determination of Type of Sentence
(a) Determining the Available Sentencing Options.--Determine the
guideline range and zone applicable to the defendant's offense level
and criminal history category in accordance with the Sentencing Table
set forth in Sec. 5A1.2 (Sentencing Table). The Sentencing Table is
divided into zones (Zones A, B, C, and D), with each providing
different sentencing options. Subject to any statutory limitations in
an individual case (see, e.g., Sec. 5B1.1(b) (statutory eligibility
for probation), Sec. Sec. 5G1.1, 5G1.2 (statutory minima and maxima)),
the sentencing options are generally as follows:
(1) Zone A authorizes a sentence of probation with or without any
conditions of confinement, in addition
[[Page 5560]]
to the sentencing options authorized in Zones B through D. See
Sec. Sec. 5B1.1(a)(1), 5C1.1(a)-(b) 5C1.1, comment. (n.2).
(2) Zone B authorizes a sentence of probation, provided that the
minimum term of imprisonment specified in the guideline range is
satisfied by a period of intermittent confinement, community
confinement, or home detention, as provided by the schedule of
substitute punishments at Sec. 5C1.1(e). In addition, Zone B provides
for the sentencing options authorized in Zones C and D. See Sec. Sec.
5B1.1(a)(2), 5C1.1(c), 5C1.1, comment. (n.3).
(3) Zone C authorizes a `split sentence' of imprisonment, in which
at least one-half of the minimum term specified in the guideline range
is satisfied by a period of imprisonment and the remainder is satisfied
by a term of supervised release with a condition substituting community
confinement or home detention according to the schedule of substitute
punishments provided at Sec. 5C1.1(e). In addition, Zone C provides
for the sentencing options authorized in Zone D. See Sec. 5C1.1(d);
id., comment. (n.4).
(4) Zone D authorizes sentences of imprisonment only. See Sec.
5C1.1(f).
(b) Determining the Appropriate Sentencing Option.--In determining
the appropriate sentencing option(s) from among those authorized under
the guidelines, courts should consider which option(s) will best meet
the purposes of sentencing and the needs of the individual defendant.
(c) Determining the Sentence Under the Guidelines.--Determine the
length, conditions, and other aspects of the sentence by applying the
provisions in this chapter.
(1) If the court determines that a term of probation is
appropriate, proceed to Part B (Probation) of this chapter to determine
the length and conditions of any term of probation. Certain conditions
of probation are addressed in further detail in Part F (Sentencing
Options) of this chapter.
(2) If the court determines that a term of imprisonment is
appropriate, proceed to Parts C (Imprisonment) and D (Supervised
Release) of this chapter to determine the length of the term of
imprisonment, whether to impose a term of supervised release, and, if a
term of supervised release is imposed, the length and conditions of
that term. Certain conditions of supervised release are specifically
addressed in further detail in Part F (Sentencing Options) of this
chapter.
(3) In all cases, proceed to Part E (Restitution, Fines,
Assessments, Forfeitures) to determine whether to impose restitution,
fines, forfeiture, or a special assessment.
(4) If applicable, proceed to Part G (Implementing the Total
Sentence of Imprisonment) to determine how to implement a sentence in a
case involving multiple counts of conviction, an undischarged term of
imprisonment, or an anticipated state term of imprisonment.
(d) Consideration of Factors Set Forth in 18 U.S.C. 3553(a).--The
court shall consider the applicable factors in 18 U.S.C. 3553(a) to
determine a sentence that is sufficient, but not greater than
necessary, to comply with the purposes of sentencing. [The court may
determine that a sentencing option that is authorized by statute, but
not by the guidelines, is appropriate based on the consideration of
these sentencing factors.]
Commentary
Application Note:
1. Fine-Only Sentence.--A fine may be the sole sanction if the
guidelines do not require a term of imprisonment. See Sec. 5E1.2,
comment. (n.1).''.
Issues for Comment:
1. Part A of the proposed amendment would amend Part A of Chapter
Five to both add new introductory commentary to Part A and a new
guideline at Sec. 5A1.1 (Determination of Type of Sentence). The
Commission seeks comment on whether it should adopt both the new
introductory commentary and the new guideline, only the new
introductory commentary, or only the new Sec. 5A1.1 guideline. If the
Commission were to promulgate only the new introductory commentary to
Part A, should it incorporate into the commentary any of the guidance
currently provided in proposed Sec. 5A1.1?
2. Part A of the proposed amendment would add to Part A of Chapter
Five a new guideline at Sec. 5A1.1 (Determination of Type of
Sentence). The new guideline at Sec. 5A1.1 would provide an overview
of the steps necessary for the court to determine an appropriate
sentence pursuant to Chapter Five. New Subsection (b) instructs the
court to determine the appropriate sentencing options from among those
authorized in the guidelines. The Commission seeks comment on whether
it should list factors in new Sec. 5A1.1(b) for courts to consider in
determining the appropriate sentencing option under the guidelines. If
so, what factors should be listed? The Commission seeks comment on
whether the list of factors should include any of the factors listed
below:
<bullet> Whether a sentence of probation or a term of imprisonment
best protects the public and meets the other purposes of sentencing.
See 18 U.S.C. 3553(a)(1), (a)(2); Sec. 5C1.1(e) (schedule of
substitute punishments).
<bullet> Whether the seriousness of the defendant's offense, and
the nature and degree of harm caused by it, requires a term of
imprisonment to provide just punishment, afford adequate deterrence to
criminal conduct, promote respect for the law, or adequately address
public concern generated by the offense. See 18 U.S.C. 3553(a)(2); 28
U.S.C. 994(c).
<bullet> Whether the defendant is in need of educational or
vocational training, medical care, or other rehabilitative or
correctional treatment, and the setting in which any such treatment
would be most effectively provided. See 18 U.S.C. 3553(a)(2)(D),
3582(a); 28 U.S.C. 994(k).
<bullet> The nature and capacity of the penal, correctional, and
other facilities and services available, the relative cost associated
with available sentencing options, and how resources could be most
effectively allocated to address the risks and needs of the defendant.
28 U.S.C. 994(g), (k).
<bullet> Whether the defendant is: (1) a ``first offender'' who has
not been convicted of a crime of violence or an otherwise serious
offense, for whom a sentence other than imprisonment is generally
appropriate; or (2) a person convicted of a crime of violence that
results in serious bodily injury, for whom a sentence of imprisonment
is generally appropriate. See 28 U.S.C. 994(j).
<bullet> Whether the defendant has a history of prior criminal
conduct that warrants a substantial term of imprisonment. See 28 U.S.C.
994(h), (i).
<bullet> Any developing research and knowledge about the
effectiveness of available sentencing options in meeting the needs of
individual defendants, reducing recidivism, and protecting the public.
See 28 U.S.C. 991(b)(1)(C).
Should the Commission provide additional or different factors?
3. Section 3553(a) of Title 18 lists some of the factors that the
court shall consider to determine a sentence that is sufficient, but
not greater than necessary, to comply with the purposes of sentencing.
In particular, the factors set forth in section 3553(a)(2) include
``the need for the sentence imposed . . . (A) to reflect the
seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (B) to afford adequate
deterrence to criminal conduct; (C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other correctional
treatment in the most effective manner.'' The Commission
[[Page 5561]]
seeks comment on whether proposed new Sec. 5A1.1(b) should reference
the factors listed in 18 U.S.C. 3553(a), including the purposes of
sentencing in section 3553(a)(2)? If so, how? Would referencing or
incorporating these statutory factors into the proposed guideline
inadvertently create a procedural requirement that could be subject to
litigation?
(B) Expansion of Zones B and C of the Sentencing Table
Proposed Amendment:
Chapter Five, Part A is amended in the Sentencing Table--
by redesignating Zone B to contain all guideline ranges having a
minimum of at least four months but not more than 46 months in criminal
history category I and a minimum of at least one month but not more
than 12 months in criminal history categories II through VI;
by redesignating Zone C to contain all guideline ranges having a
minimum of 51 months but not more than 87 months in criminal history
category I, a minimum of 15 months but not more than 18 months in
criminal history categories II through IV, and a minimum of 15 months
in criminal history categories V and VI;
and by redesignating Zone D to contain all guideline ranges having
a minimum of 97 months or more in criminal history category I, a
minimum of 21 months or more in criminal history categories II through
IV, and a minimum of 18 months or more in criminal history categories V
and VI.
The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is
amended--
in Note 1(B) by striking ``(i.e., the minimum term of imprisonment
specified in the applicable guideline range is at least one but not
more than nine months)'' and inserting ``(i.e., the minimum term of
imprisonment specified in the applicable guideline range is at least
four months but not more than 46 months in criminal history category I
or at least one month but not more than 12 months in criminal history
categories II through VI)'';
and in Note 2 by striking ``(i.e., the minimum term of imprisonment
specified in the applicable guideline range is ten months or more)''
and inserting ``(i.e., the minimum term of imprisonment specified in
the applicable guideline range is 51 months or more in criminal history
category I or 15 months or more in criminal history categories II
through VI)''.
The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is
amended--
in Note 3 by striking ``(i.e., the minimum term of imprisonment
specified in the applicable guideline range is at least one but not
more than nine months)'' and inserting ``(i.e., the minimum term of
imprisonment specified in the applicable guideline range is at least
four months but not more than 46 months in criminal history category I
or at least one month but not more than 12 months in criminal history
categories II through VI)'';
in Note 4 by striking ``(i.e., the minimum term specified in the
applicable guideline range is ten or twelve months)'' and inserting
``(i.e., the minimum term specified in the applicable guideline range
is 51 months but not more than 87 months in criminal history category
I, 15 months but not more than 18 months in criminal history categories
II through IV, or 15 months in criminal history categories V and VI)'';
by striking ``For example, where the guideline range is 10-16 months, a
sentence of five months imprisonment followed by a term of supervised
release with a condition requiring five months community confinement or
home detention would satisfy the minimum term of imprisonment required
by the guideline range'' and inserting ``For example, where the
defendant is in criminal history category II and the guideline range is
15-21 months, a sentence of seven and a half months imprisonment
followed by a term of supervised release with a condition requiring
seven and a half months community confinement or home detention would
satisfy the minimum term of imprisonment required by the guideline
range''; and by striking ``For example, where the guideline range is
10-16 months, both a sentence of five months imprisonment followed by a
term of supervised release with a condition requiring six months of
community confinement or home detention (under subsection (d)), and a
sentence of ten months imprisonment followed by a term of supervised
release with a condition requiring four months of community confinement
or home detention (also under subsection (d)) would be within the
guideline range'' and inserting ``For example, where the defendant is
in criminal history category II and the guideline range is 15-21
months, both a sentence of seven and a half months imprisonment
followed by a term of supervised release with a condition requiring
eight months of community confinement or home detention (under
subsection (d)), and a sentence of ten months imprisonment followed by
a term of supervised release with a condition requiring five months of
community confinement or home detention (also under subsection (d))
would be within the guideline range'';
and in Note 8 by striking ``(i.e., the minimum term of imprisonment
specified in the applicable guideline range is 15 months or more)'' and
inserting ``(i.e., the minimum term of imprisonment specified in the
applicable guideline range is 97 months or more in criminal history
category I, 21 months or more in criminal history categories II through
IV, or 18 months or more in criminal history categories V and VI)''.
Issues for Comment:
1. Part B of the proposed amendment would expand Zones B and C of
the Sentencing Table. The Commission seeks comment on whether it should
expand Zones B and C in a different manner than the one set forth in
the proposed amendment. Should the Commission expand Zone B to lower or
higher offense levels than proposed? Should it expand Zone C to lower
or higher offense levels than proposed? What data, statutory
provisions, or policy considerations should determine the scope of
Zones B and C?
2. The proposed expansion of Zone B would authorize sentences of
probation with conditions of confinement as a sentencing option for
current Zone C defendants, an option that was not available to such
defendants before. Similarly, the proposed expansion of Zone C would
authorize split sentences for current Zone D defendants, an option that
was not available to such defendants before. The Commission seeks
comment on whether the Commission should provide additional guidance to
address these new Zone B and C defendants. If so, what guidance should
the Commission provide?
3. The proposed expansion of Zones B and C would result in a zone
structure that authorizes different sentencing options for certain
defendants who are in different criminal history categories but have
the same applicable guideline range (i.e., defendants whose guideline
range is 15-21 or 18-24 months). The Commission seeks comment on
whether authorizing different sentencing options for defendants who
have the same applicable guideline range is appropriate. Would doing so
raise any legal or policy concerns?
2. Career Offender
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 examination of the career offender
guidelines, including (A) evaluating the impact, feasibility, and
uniformity in application of alternative
[[Page 5562]]
approaches to the `categorical approach' through workshops, field
testing, and updating the data analyses set forth in the Commission's
2016 report to Congress, titled Career Offender Sentencing
Enhancements; and (B) 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 proposed amendment addresses recurrent criticism of the
categorical approach and modified categorical approach in the context
of Sec. 4B1.1 (Career Offender). It sets forth options that would
eliminate the use of the categorical approach for purposes of
determining whether a federal offense is a ``crime of violence'' or
``controlled substance offense'' by listing federal offenses that
qualify as a ``crime of violence'' or a ``controlled substance
offense.'' The proposed amendment also provides options that would set
forth an approach for purposes of determining whether a state offense
is a ``crime of violence'' or ``controlled substance offense'' that
does not impose some of the limitations of the ``categorical approach''
and ``modified categorical approach'' adopted by the Supreme Court in
the context of certain statutory provisions. These changes are intended
to correct some of the ``odd'' and ``arbitrary'' results that the
categorical approach has produced relating to the ``crime of violence''
definition (see, e.g., United States v. Davis, 875 F.3d 592, 595 (11th
Cir. 2017); United States v. McCollum, 885 F.3d 300, 309-14 (4th Cir.
2018) (Traxler, J., concurring); id. (Wilkinson, J., dissenting)). The
proposed amendment also sets forth options to limit the scope of the
``controlled substance offense'' definition.
The Commission anticipates that the revised ``crime of violence''
definition set forth in the proposed amendment will identify offenses
as presumptively violent in an overbroad manner. To counteract this
overbreadth, each option provides necessary and critical exclusions and
limitations to ensure that Sec. 4B1.2 is properly tailored to capture
offenses that are actually violent. These exclusions and limitations
are necessary to the overall operation of the options set forth in the
proposed amendment.
The Categorical Approach as Developed by Supreme Court Jurisprudence
Several statutes and guidelines provide enhanced penalties for
defendants convicted of offenses that meet the definition of a
particular category of crimes. Courts typically determine whether a
conviction fits within the definition of a particular category of
crimes through the application of the ``categorical approach'' and
``modified categorical approach,'' as set forth by Supreme Court
jurisprudence. The categorical and modified categorical approaches
require courts to look only to the elements of the offense, rather than
the particular facts underlying the conviction, to determine whether
the offense meets the definition of a particular category of crimes. In
applying the modified categorical approach, courts may look to certain
additional sources of information, now commonly referred to as the
``Shepard documents,'' to determine the elements of the offense of
conviction. See Taylor v. United States, 495 U.S. 575 (1990) (holding
that, under the ``categorical approach,'' courts must compare the
elements of the offense as described in the statute of conviction to
the elements of the applicable definition of a particular category of
crimes to determine if such offense criminalizes the same or a narrower
range of conduct than the definition captures in order to serve as a
predicate offense); Shepard v. United States, 544 U.S. 13 (2005)
(holding that courts may use a ``modified categorical approach'' in
cases where the statute of conviction is ``overbroad,'' that is, the
statute contains multiple offenses with different offense elements).
Application of the Categorical Approach in the Guidelines
Supreme Court jurisprudence on this subject pertains to statutory
provisions (e.g., 18 U.S.C. 924(e)), but courts have applied the
categorical and modified categorical approaches to guideline
provisions. For example, courts have used these approaches to determine
if a conviction is a ``crime of violence'' for purposes of applying the
career offender guideline at Sec. 4B1.1.
General Criticism of the Categorical Approach as Developed by Supreme
Court Jurisprudence
The Commission has received comment over the years regarding the
complexity and limitations of the categorical approach as developed by
Supreme Court jurisprudence. Courts have criticized the categorical
approach as a ``legal fiction,'' in which an offense that a defendant
in fact commits violently is deemed to be a legally non-violent offense
because the offense could have been committed without violence, often
leading to ``odd'' and ``arbitrary'' results (e.g., United States v.
Davis, 875 F.3d 592, 595 (11th Cir. 2017); United States v. McCollum,
885 F.3d 300, 309-14 (4th Cir. 2018) (Traxler, J., concurring); id.
(Wilkinson, J., dissenting)).
Feedback From Stakeholders
The Commission also has received input in roundtable discussions
with several stakeholders with diverse perspectives and expertise
within the criminal justice system. Some stakeholders have suggested
that the Commission should eliminate the categorical approach to
capture violent offenses that are currently excluded while also
narrowing the scope of the ``controlled substance offense'' definition,
particularly its reach over predicate offenses. Some stakeholders also
have remarked that the Commission should limit the number of qualifying
prior offenses overall for purposes of the career offender guideline.
Some stakeholders have suggested that the Commission should condition
which convictions qualify as predicate offenses by establishing a
minimum sentence length threshold.
Changes Relating to ``Crime of Violence''
The proposed amendment would make several changes to the definition
of ``crime of violence.''
First, the proposed amendment would place all provisions related to
the definition of ``crime of violence'' in subsection (a). This
includes moving the provision on ``inchoate offenses included'' as it
relates to ``crime of violence'' into subsection (a) without
substantive changes.
Second, the proposed amendment would delete the ``force clause''
from Sec. 4B1.2(a).
Third, the proposed amendment would eliminate the use of the
categorical approach for purposes of federal offenses by listing
specific federal statutes proscribing violent offenses that qualify as
``crime of violence.''
Fourth, the proposed amendment sets forth two options for amending
the definition of ``crime of violence'' for purposes of state offenses.
Crime of Violence Option 1 would eliminate the use of the
categorical approach for purposes of state offenses by providing a
definition that is based on how an offense is designated (i.e.,
labeled) under federal or state law. It sets forth a list of violent
offenses. A conviction for an offense that is labeled as one of the
listed offenses is presumptively a qualifying ``crime of violence.''
This approach is intended to avoid an analysis requiring a categorical
matching between statutory elements, instead capturing convictions for
certain
[[Page 5563]]
types of offenses based on how they are labeled. This option brackets a
preliminary list of offense labels, highlighting the Commission's
interest in appropriately tailoring the scope of the offenses included
in the list. The Commission also recognizes that jurisdictions name
each of these offenses in various ways that may be appropriate to
include in the list of qualifying labels. The proposed amendment
includes issues for comment regarding any other offenses or labels that
should be included in the definition to adequately capture these
offenses in Crime of Violence Option 1.
Crime of Violence Option 2 would set forth an approach for purposes
of determining whether a state offense is a ``crime of violence'' that
does not impose some of the limitations of the ``categorical approach''
and ``modified categorical approach.'' It would provide that a state
offense is presumptively a ``crime of violence'' if the statute of
conviction [meets each of the elements (other than federal
jurisdictional requirements)] [proscribes [conduct][an act or omission]
that [is described by][satisfies][meets] the elements (other than
federal jurisdictional requirements)] of an offense set forth in the
proposed definition, regardless of whether the statute of conviction
includes additional elements (or means of committing any such elements)
that are broader than those of the offense. It sets forth a list of
violent offenses and defines most of these enumerated offenses by
referring to a federal statute. Many of the listed offenses qualify as
a ``serious violent felony'' under 18 U.S.C. 3559(c). Crime of Violence
Option 2 also brackets the possibility of including additional
offenses. It would define some of these additional offenses, either by
referring to a statutory provision or providing a guidelines definition
of such an offense. These changes are intended to eliminate the
categorical approach's requirement that courts compare only the
elements of the predicate offense as described in the statute of
conviction to the elements of a generic, contemporary definition of the
applicable enumerated offense. Instead, courts would be allowed to look
to any part of a statute of conviction--the elements of any offense,
and the means of committing any element of such offense, as described
in the statute--and determine whether any part of the statute of
conviction includes an offense that constitutes one of the enumerated
offenses as defined in Sec. 4B1.2.
Finally, the proposed amendment includes exclusions and limitations
to the scope of the ``crime of violence'' definition. These exclusions
and limitations are integral to the operation of the proposed
amendment. For example, the proposed amendment adopts as an exclusion
sentence length criteria similar to those relating to petty and minor
offenses from subsection (c)(2) of Sec. 4A1.2 (Definitions and
Instructions for Computing Criminal History). In addition, as an
important step in determining whether an offense is a ``crime of
violence,'' the proposed amendment provides that, after the government
has met its burden to establish that an offense presumptively qualifies
as a ``crime of violence'' under subsections (a)(1) through (a)(3), the
defendant may rebut such presumption by establishing any of the
following: (i) the conviction for the offense resulted in a sentence
for which the defendant served less than [60 days][30 days] in prison;
(ii) the acts for which the defendant is criminally liable [did not
inflict, did not intend to inflict, and did not threaten to inflict
[serious] bodily injury to another person][did not cause, did not
intend to cause, and did not create a serious risk of physical harm to
another person] during the commission of the offense; or (iii) the
defendant's conduct during the commission of the offense was limited to
reckless or negligent conduct.
Changes Relating to ``Controlled Substance Offense''
The proposed amendment would make several changes to Sec. 4B1.2
relating to the definition of ``controlled substance offense.''
First, the proposed amendment would place all provisions related to
the definition of ``controlled substance offense'' in subsection (b).
This includes moving the provision on ``inchoate offenses included'' as
it relates to ``controlled substance offense'' into subsection (b)
without substantive changes. In addition, it would move to subsection
(b) the provision currently located in the Commentary to Sec. 4B1.2
stating that a violation of 18 U.S.C. 924(c) or Sec. 929(a) is a
``controlled substance offense'' if the offense of conviction
established that the underlying offense was a ``controlled substance
offense.''
Second, the proposed amendment sets forth two options for limiting
the scope of the ``controlled substance offense'' definition.
Controlled Substance Offense Option 1 would revise the definition
of ``controlled substance offense'' to exclude state drug offenses from
the scope of its application by listing specific federal statutes
relating to drug offenses. It lists the federal statutes that are
controlled substance offenses under the current definition to maintain
the status quo with respect to federal drug trafficking statutes. The
list includes the federal drug trafficking statutes that are
specifically referenced in the career offender directive at 28 U.S.C.
994(h). The federal drug trafficking statutes that appear in brackets
are not cited in the directive.
Controlled Substance Offense Option 2 would maintain the current
definition of ``controlled substance offense'' but would limit its
scope by setting a minimum sentence length requirement for a prior
conviction to qualify as a ``controlled substance offense.'' It
provides three suboptions for limiting prior convictions. Controlled
Substance Offense Suboption 2A would limit qualifying prior
``controlled substance offense'' convictions to only those convictions
that are counted separately under Sec. 4A1.1(a). Controlled Substance
Offense Suboption 2B would limit qualifying prior convictions to only
convictions of a controlled substance offense that resulted in a
sentence imposed of [five years][three years][one year] or more that
are counted separately under Sec. 4A1.1(a) [or (b)]. Both Controlled
Substance Offense Suboptions 2A and 2B bracket the possibility of
including a provision that provides that a conviction for a controlled
substance offense shall not qualify as a prior felony conviction under
Sec. 4B1.2 if the defendant can establish that the conviction resulted
in a sentence for which the defendant served less than [five
years][three years][one year] in prison. Controlled Substance Offense
Suboption 2C would limit qualifying prior convictions to only
convictions of a controlled substance offense that resulted in a
sentence for which the defendant served [five years][three years][one
year] or more in prison and that are counted separately under Sec.
4A1.1(a) [or (b)].
Changes to Other Guidelines
The current definitions of ``crime of violence'' and ``controlled
substance offense'' at Sec. 4B1.2 are incorporated by reference in
several other guidelines in the Guidelines Manual. See Commentary to
Sec. 2K1.3 (Unlawful Receipt, Possession, or Transportation of
Explosive Materials; Prohibited Transactions Involving Explosive
Materials), Sec. 2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition), Sec. 2S1.1 (Laundering of Monetary
Instruments; Engaging in Monetary Transactions in Property Derived from
Unlawful Activity),
[[Page 5564]]
Sec. 4A1.2 (Definitions and Instructions for Computing Criminal
History), Sec. 4B1.4 (Armed Career Criminal), Sec. 7B1.1
(Classification of Violations (Policy Statement)), and Sec. 7C1.1
(Classification of Violations (Policy Statement)).
Absent additional changes to these other guideline provisions, all
revisions to the definitions in Sec. 4B1.2 would be incorporated into
those guidelines that currently reference the ``crime of violence'' and
``controlled substance offense'' definitions found in Sec. 4B1.2.
Thus, the proposed amendment effectively sets forth three
alternatives for addressing the references to ``crime of violence'' and
``controlled substance offense'' in Sec. 2K2.1. First, absent
additional changes to Sec. 2K2.1, any revisions to the definitions in
Sec. 4B1.2 would be incorporated by reference to Sec. 2K2.1. In
addition to this approach of maintaining the current operation of Sec.
2K2.1 by incorporating the definitions from Sec. 4B1.2, two options
are presented. Firearms Option 1 would maintain the status quo by
amending the Commentary to Sec. 2K2.1 to incorporate the relevant part
or parts of the current definitions from Sec. 4B1.2. Firearms Option 2
would amend the Commentary to Sec. 2K2.1 to provide that ``controlled
substance offense'' has the meaning given the term ``serious drug
offense'' in 18 U.S.C. 924(e) and ``crime of violence'' has the meaning
given the term ``violent felony'' in 18 U.S.C. 924(e). The proposed
amendment also provides an issue for comment on how the references to
``crime of violence'' and ``controlled substance'' in the other
guidelines cited above should be addressed.
Issues for Comment
The proposed amendment also sets forth issues for comment.
Proposed Amendment:
Section 4B1.2 is amended--
in subsection (a) by striking the following:
``Crime of Violence.--The term `crime of violence' means any
offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that--
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(2) is murder, voluntary manslaughter, kidnapping, aggravated
assault, a forcible sex offense, robbery, arson, extortion, or the use
or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or
explosive material as defined in 18 U.S.C. 841(c).'';
and inserting the following:
``Crime of Violence.--
(1) In General.--The term `crime of violence' means any of the
following offenses:
(A) Federal Offenses.--
(i) An offense under any of the following--
18 U.S.C. 113(a), [844(i)], 1111, 1112, 1201, 1951, [2111,] [2113,]
[2118,] [2119,] 2241, 2242, 2244(a)(1)-(a)(2)[; 49 U.S.C. 46502].
(ii) An offense under federal law, punishable by imprisonment for a
term exceeding one year, that involves the use or unlawful possession
of a firearm described in 26 U.S.C. 5845(a) or explosive material as
defined in 18 U.S.C. 841(c).
[Crime of Violence Option 1 for Definition Applicable to State
Offenses (List of Offense Labels):
(B) State Offenses.--Any offense, punishable by imprisonment for a
term exceeding one year, that is designated under state law as one of
the following:
[Aggravated Assault;
Arson;
Extortion;
Kidnapping;
Murder;
Rape;
Robbery;
Sexual assault;
Voluntary manslaughter.]]
[Crime of Violence Option 2 for Definition Applicable to State
Offenses (List of Enumerated Offenses as Described in Federal Statutes
with Bracketed Additional Offenses):
(B) State Offenses.--An offense under state law by whatever
designation, punishable by imprisonment for a term exceeding one year,
is presumptively a `crime of violence' if the statute of conviction
[meets each of the elements (other than federal jurisdictional
requirements)] [proscribes [conduct][an act or omission] that [is
described by] [satisfies][meets] the elements (other than federal
jurisdictional requirements)] of one of the following offenses,
regardless of whether the statute of conviction includes additional
elements (or means of committing any such elements) that are broader
than those of the offense:
Murder (as described in 18 U.S.C. 1111); manslaughter other than
involuntary manslaughter (as described in 18 U.S.C. 1112); aggravated
assault or battery (as described in 18 U.S.C. 113(a) (but not to
include a state offense that would otherwise be simple or misdemeanor
assault or simple or misdemeanor battery but for the identity of the
victim or perpetrator)); [assault with intent to commit rape (as
described below);] rape or aggravated sexual abuse (as described in 18
U.S.C. 2241); [sexual abuse (as described in 18 U.S.C. 2242);] abusive
sexual contact (as described in 18 U.S.C. 2244(a)(1), (a)(2)); [child
abuse (as described below);] [domestic violence (as described below);]
kidnapping (as described in 18 U.S.C. 1201); [hostage taking (as
described below);] [human trafficking (as described below);] [aircraft
piracy (as described in 49 U.S.C. 46502);] robbery (as described in 18
U.S.C. 1951(b)[, Sec. 2111, Sec. 2113, or Sec. 2118]); carjacking
(as described in 18 U.S.C. 2119); [extortion (as described in 18 U.S.C.
1951(b)(2));] [coercion (as described below);] [arson (as described in
18 U.S.C. 844(i) (but not to include arson of property other than a
building));] [firearms use (as described below);] [firearms possession
(as described in 18 U.S.C. 924(c));] [or using weapons of mass
destruction (as described in 18 U.S.C. 2332a)].
For purposes of offenses listed in subsection (a)(1)(B), use the
following descriptions:
[`Assault with intent to commit rape' is engaging in physical
contact with another person or using or brandishing a weapon against
another person with intent to commit aggravated sexual abuse or sexual
abuse (as described in 18 U.S.C. 2241 and 2242).]
[`Child abuse' is any of the following: the intentional infliction
of physical injury to a minor; the commission of any sexual act against
a child under the age of 14 by any person 18 years of age or older;
online enticement or coercion of a minor to engage in illegal sexual
activity; or the production of child pornography or livestreaming of
child sexual abuse.]
[`Coercion' is causing the performance or non-performance of any
act by another person, which such other person has a legal right to do
or to abstain from doing, by the use of actual or threatened force,
violence, or fear thereof, including the use, or an express or implicit
threat of use, of violence to cause harm to the person, reputation, or
property of any person.]
[`Domestic violence' is committing any act with the intent to kill
or injure a spouse, intimate partner, or dating partner.]
[`Firearms use' is an offense described in 18 U.S.C. 924(c) or
Sec. 929(a), if the firearm was brandished, discharged, or otherwise
used as a weapon during and relation to the offense in which the
firearm was used.]
[`Hostage taking' is the seizure or detention with threats to kill,
to injure, or to continue to detain another person in order to compel a
third person or a governmental organization to do or abstain from doing
any act as an explicit or implicit condition for the release of the
person detained.]
[[Page 5565]]
[`Human trafficking' is any of the following: the recruitment,
harboring, transportation, provision, or obtaining of a person for
labor, services, or a commercial sex act, through the use of force,
threat of force, fraud, or coercion; the recruitment, harboring,
transportation, provision, or obtaining of a minor for the purpose of a
commercial sex act; or the subjection of a person to involuntary
servitude, peonage, debt bondage, or slavery.]]
(2) Aiding and Abetting, Inchoate Offenses Included.--The term
`crime of violence' includes the offenses of aiding and abetting,
attempting to commit, or conspiring to commit any such offense.
(3) Exclusion.--The term `crime of violence' under subsections
(a)(1) and (a)(2) does not include any offense where the sentence
imposed was (i) a term of unsupervised probation; (ii) a term of
[supervised] probation [of less than [one year][three years][five
years]]; or (iii) a term of imprisonment of less than [60 days][30
days].
(4) Limitations.--An offense of conviction shall not qualify as a
`crime of violence' under subsections (a)(1) and (a)(2) if the
defendant can establish any of the following:
(A) Sentence Served.--The conviction for the offense resulted in a
sentence for which the defendant served less than [60 days][30 days] in
prison.
(B) [[Serious] Bodily Injury.--During the commission of the
offense, the acts for which the defendant is criminally liable did not
inflict, did not intend to inflict, and did not threaten to inflict
[serious] bodily injury to another person[. Provided, however, that
this limitation shall not apply to extortion and arson
offenses].][Physical Harm.--During the commission of the offense, the
acts for which the defendant is criminally liable did not cause, did
not intend to cause, and did not create a serious risk of physical harm
to another person[. Provided, however, that this limitation shall not
apply to extortion and arson offenses].]
(C) Recklessness and Negligence.--The defendant's conduct during
the commission of the offense was limited to reckless or negligent
conduct. [However, an offense is not excluded under this provision if
the defendant's conduct included extreme reckless conduct.]'';
by striking subsections (b) and (c) as follows:
``(b) Controlled Substance Offense.--The term `controlled substance
offense' means an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that--
(1) prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or
the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense; or
(2) is an offense described in 46 U.S.C. 70503(a) or Sec.
70506(b).
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means (1) the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense),
and (2) the sentences for at least two of the aforementioned felony
convictions are counted separately under the provisions of Sec.
4A1.1(a), (b), or (c). The date that a defendant sustained a conviction
shall be the date that the guilt of the defendant has been established,
whether by guilty plea, trial, or plea of nolo contendere.'';
and inserting the following new subsections (b) and (c):
[Controlled Substance Offense Option 1 for Limiting Scope of
Controlled Substance Offense Definition (Limiting Definition to Federal
Offenses):
``(b) Controlled Substance Offense.--
(1) In General.--The term `controlled substance offense' means an
offense under 21 U.S.C. 841, Sec. 952(a), Sec. 955, or Sec. 959, or
46 U.S.C. 70503(a) or Sec. 70506(b), [or 21 U.S.C. 843(a)(6), Sec.
843(b), Sec. 846 (if the object of the conspiracy or attempt was to
commit an offense covered by this provision), Sec. 856, Sec. 860,
Sec. 960, or Sec. 963 (if the object of the conspiracy or attempt was
to commit an offense covered by this provision)].
(2) Aiding and Abetting, Inchoate Offenses Included.--The term
`controlled substance offense' includes the offenses of aiding and
abetting, attempting to commit, or conspiring to commit any such
offense.
(3) Additional Consideration.--A violation of 18 U.S.C. 924(c) or
Sec. 929(a) is a `controlled substance offense' if the offense of
conviction established that the underlying offense was a `controlled
substance offense.'
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means (1) the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense),
and (2) the sentences for at least two of the aforementioned felony
convictions are counted separately under the provisions of Sec.
4A1.1(a), (b), or (c). The date that a defendant sustained a conviction
shall be the date that the guilt of the defendant has been established,
whether by guilty plea, trial, or plea of nolo contendere.'']
[Controlled Substance Offense Option 2 for Limiting Scope of
Controlled Substance Offense Definition (Limiting Prior Convictions for
Controlled Substance Offenses):
``(b) Controlled Substance Offense.--
(1) In General.--The term `controlled substance offense' means an
offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that--
(A) prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or
the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense; or
(B) is an offense in conduct described in 46 U.S.C. 70503(a) or
Sec. 70506(b).
(2) Aiding and Abetting, Inchoate Offenses Included.--The term
`controlled substance offense' includes the offenses of aiding and
abetting, attempting to commit, or conspiring to commit any such
offense.
(3) Additional Consideration.--A violation of 18 U.S.C. 924(c) or
Sec. 929(a) is a `controlled substance offense' if the offense of
conviction established that the underlying offense was a `controlled
substance offense.'
[Controlled Substance Offense Suboption 2A (Limiting Prior
Convictions to Sentences Receiving Points under Sec. 4A1.1(a)):
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense).
The date that a defendant sustained a conviction shall be the date that
the guilt of the defendant has been established, whether by guilty
plea, trial, or plea of nolo contendere. For purposes of
[[Page 5566]]
determining whether the defendant sustained a felony conviction of a
`crime of violence,' use only any such felony conviction that is
counted separately under Sec. 4A1.1(a), (b), or (c). For purposes of
determining whether the defendant sustained a felony conviction of a
`controlled substance offense,' use only any such felony conviction
that is counted separately under Sec. 4A1.1(a).
[A conviction for a controlled substance offense shall not qualify
as a prior felony conviction under this provision if the defendant can
establish that the conviction resulted in a sentence for which the
defendant served less than [five years] [three years][one year] in
prison.]]
[Controlled Substance Offense Suboption 2B (Limiting Prior
Convictions Through a Sentence-Imposed Approach):
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense).
The date that a defendant sustained a conviction shall be the date that
the guilt of the defendant has been established, whether by guilty
plea, trial, or plea of nolo contendere. For purposes of determining
whether the defendant sustained a felony conviction of a `crime of
violence,' use only any such felony conviction that is counted
separately under Sec. 4A1.1(a), (b), or (c). For purposes of
determining whether the defendant sustained a felony conviction of a
`controlled substance offense,' use only any such felony conviction
that (1) is counted separately under Sec. 4A1.1(a) [or (b)], and (2)
resulted in a sentence imposed of [five years][three years][one year]
or more. For purposes of this provision, `sentence imposed' has the
meaning given the term `sentence of imprisonment' in Sec. 4A1.2(b) and
Application Note 2 of the Commentary to Sec. 4A1.2. The length of the
sentence imposed includes any term of imprisonment given upon
revocation of probation, parole, or supervised release, regardless of
when the revocation occurred.
[A conviction for a controlled substance offense shall not qualify
as a prior felony conviction under this provision if the defendant can
establish that the conviction resulted in a sentence for which the
defendant served less than [five years] [three years][one year] in
prison.]]
[Controlled Substance Offense Suboption 2C (Limiting Prior
Convictions Through a Time-Served Approach):
(c) Two Prior Felony Convictions.--The term `two prior felony
convictions' means the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense (i.e., two
felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled substance offense).
The date that a defendant sustained a conviction shall be the date that
the guilt of the defendant has been established, whether by guilty
plea, trial, or plea of nolo contendere. For purposes of determining
whether the defendant sustained a felony conviction of a `crime of
violence,' use only any such felony conviction that is counted
separately under Sec. 4A1.1(a), (b), or (c). For purposes of
determining whether the defendant sustained a felony conviction of a
`controlled substance offense,' use only any such felony conviction
that (1) is counted separately under Sec. 4A1.1(a) [or (b)], and (2)
resulted in a sentence for which the defendant served [five
years][three years][one year] or more in prison.]''];
by striking subsections (d) and (e) as follows:
``(d) Inchoate Offenses Included.--The terms `crime of violence'
and `controlled substance offense' include the offenses of aiding and
abetting, attempting to commit, or conspiring to commit any such
offense.
(e) Additional Definitions.--
(1) Forcible Sex Offense.--`Forcible sex offense' includes where
consent to the conduct is not given or is not legally valid, such as
where consent to the conduct is involuntary, incompetent, or coerced.
The offenses of sexual abuse of a minor and statutory rape are included
only if the sexual abuse of a minor or statutory rape was (A) an
offense described in 18 U.S.C. 2241(c) or (B) an offense under state
law that would have been an offense under section 2241(c) if the
offense had occurred within the special maritime and territorial
jurisdiction of the United States.
(2) Extortion.--`Extortion' is obtaining something of value from
another by the wrongful use of (A) force, (B) fear of physical injury,
or (C) threat of physical injury.
(3) Robbery.--`Robbery' is the unlawful taking or obtaining of
personal property from the person or in the presence of another,
against his will, by means of actual or threatened force, or violence,
or fear of injury, immediate or future, to his person or property, or
property in his custody or possession, or the person or property of a
relative or member of his family or of anyone in his company at the
time of the taking or obtaining. The phrase `actual or threatened
force' refers to force that is sufficient to overcome a victim's
resistance.
(4) Prior Felony Conviction.--`Prior felony conviction' means a
prior adult federal or state conviction for an offense punishable by
death or imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed. A conviction for an offense
committed at age eighteen or older is an adult conviction. A conviction
for an offense committed prior to age eighteen is an adult conviction
if it is classified as an adult conviction under the laws of the
jurisdiction in which the defendant was convicted (e.g., a federal
conviction for an offense committed prior to the defendant's eighteenth
birthday is an adult conviction if the defendant was expressly
proceeded against as an adult).'';
and by inserting the following new subsection (d):
``(d) Prior Felony Conviction.--`Prior felony conviction' means a
prior adult federal or state conviction for an offense punishable by
death or imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed. A conviction for an offense
committed at age eighteen or older is an adult conviction. A conviction
for an offense committed prior to age eighteen is an adult conviction
if it is classified as an adult conviction under the laws of the
jurisdiction in which the defendant was convicted (e.g., a federal
conviction for an offense committed prior to the defendant's eighteenth
birthday is an adult conviction if the defendant was expressly
proceeded against as an adult).''.
The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is
amended--
in the heading by striking ``Notes'' and inserting ``Note'';
by striking Notes 1 and 2 as follows:
``1. Further Considerations Regarding `Crime of Violence' and
`Controlled Substance Offense'.--For purposes of this guideline--
Unlawfully possessing a listed chemical with intent to manufacture
a controlled substance (21 U.S.C.
[[Page 5567]]
841(c)(1)) is a `controlled substance offense.'
Unlawfully possessing a prohibited flask or equipment with intent
to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a
`controlled substance offense.'
Maintaining any place for the purpose of facilitating a drug
offense (21 U.S.C. 856) is a `controlled substance offense' if the
offense of conviction established that the underlying offense (the
offense facilitated) was a `controlled substance offense.'
Using a communications facility in committing, causing, or
facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled
substance offense' if the offense of conviction established that the
underlying offense (the offense committed, caused, or facilitated) was
a `controlled substance offense.'
A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a `crime of
violence' or a `controlled substance offense' if the offense of
conviction established that the underlying offense was a `crime of
violence' or a `controlled substance offense'. (Note that in the case
of a prior 18 U.S.C. 924(c) or Sec. 929(a) conviction, if the
defendant also was convicted of the underlying offense, the sentences
for the two prior convictions will be treated as a single sentence
under Sec. 4A1.2 (Definitions and Instructions for Computing Criminal
History).)
2. Offense of Conviction as Focus of Inquiry.--Section 4B1.1
(Career Offender) expressly provides that the instant and prior
offenses must be crimes of violence or controlled substance offenses of
which the defendant was convicted. Therefore, in determining whether an
offense is a crime of violence or controlled substance for the purposes
of Sec. 4B1.1 (Career Offender), the offense of conviction (i.e., the
conduct of which the defendant was convicted) is the focus of
inquiry.'';
by redesignating Note 3 as Note 1;
and in Note 1 (as so redesignated) by inserting after ``under Sec.
4B1.1.'' the following: ``Note that in the case of a prior 18 U.S.C.
924(c) or Sec. 929(a) conviction, if the defendant also was convicted
of the underlying offense, the sentences for the two prior convictions
will be treated as a single sentence under Sec. 4A1.2.''.
The Commentary to Sec. 4B1.2 is amended by inserting at the end
the following new Commentary captioned ``Background'':
``Background: Section 4B1.2 defines the terms `crime of violence,'
`controlled substance offense,' and `two prior felony convictions' for
purposes of Sec. 4B1.1 (Career Offender). Prior to [amendment year],
to determine if an offense met the definition of `crime of violence' in
Sec. 4B1.2, courts typically used the categorical approach and the
modified categorical approach, as set forth in Supreme Court
jurisprudence. See, e.g., Taylor v. United States, 495 U.S. 575 (1990);
Shepard v. United States, 544 U.S. 13 (2005); Descamps v. United
States, 570 U.S. 254 (2013); Mathis v. United States, 579 U.S. 500
(2016). These Supreme Court cases, however, involved statutory
provisions (e.g., 18 U.S.C. 924(e)) rather than guideline provisions.
In [amendment year], the Commission amended Sec. 4B1.2 to set
forth an approach for determining whether an offense is a `crime of
violence' or `controlled substance offense' that does not require the
application of the categorical approach and modified categorical
approach established by Supreme Court jurisprudence, or the use of a
generic-offense analysis, where courts must determine whether the
elements of the instant offense or prior offense match the elements of
the `generic definition' of certain offenses. See USSG App. C,
Amendment [__] (effective [Date]).''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended--
[Firearms Option 1 (Preserving Current Definitions of ``Crime of
Violence'' and ``Controlled Substance Offense'' for Sec. 2K2.1):
in note 1 by striking the following:
`` `Controlled substance offense' has the meaning given that term
in Sec. 4B1.2(b) and Application Note 1 of the Commentary to Sec.
4B1.2 (Definitions of Terms Used in Section 4B1.1).
`Crime of violence' has the meaning given that term in Sec.
4B1.2(a) and Application Note 1 of the Commentary to Sec. 4B1.2.'';
by redesignating Notes 3 through 13 as Notes 4 through 14,
respectively;
by inserting after Note 2 the following new Note 3:
``3. `Crime of Violence' and `Controlled Substance Offense'.--
(A) Crime of Violence.--
(i) Definition.--`Crime of violence' means any offense under
federal or state law, punishable by imprisonment for a term exceeding
one year, that (I) has as an element the use, attempted use, or
threatened use of physical force against the person of another; or (II)
is murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use or unlawful
possession of a firearm described in 26 U.S.C. 5845(a) or explosive
material as defined in 18 U.S.C. 841(c).
(ii) Additional Considerations.--
(I) The term `crime of violence' includes the offenses of aiding
and abetting, attempting to commit, or conspiring to commit any such
offense.
(II) `Forcible sex offense' includes where consent to the conduct
is not given or is not legally valid, such as where consent to the
conduct is involuntary, incompetent, or coerced. The offenses of sexual
abuse of a minor and statutory rape are included only if the sexual
abuse of a minor or statutory rape was (aa) an offense described in 18
U.S.C. 2241(c) or (bb) an offense under state law that would have been
an offense under section 2241(c) if the offense had occurred within the
special maritime and territorial jurisdiction of the United States.
(III) `Extortion' is obtaining something of value from another by
the wrongful use of (aa) force, (bb) fear of physical injury, or (cc)
threat of physical injury.
(IV) `Robbery' is the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property, or property in
his custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at the time of the
taking or obtaining. The phrase `actual or threatened force' refers to
force that is sufficient to overcome a victim's resistance.
(V) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a `crime of
violence' if the offense of conviction established that the underlying
offense was a `crime of violence.' (Note that in the case of a prior 18
U.S.C. 924(c) or Sec. 929(a) conviction, if the defendant also was
convicted of the underlying offense, the sentences for the two prior
convictions will be treated as a single sentence under Sec. 4A1.2
(Definitions and Instructions for Computing Criminal History).)
(VI) In determining whether an offense is a crime of violence, the
offense of conviction (i.e., the conduct of which the defendant was
convicted) is the focus of inquiry.
(B) Controlled Substance Offense.--
(i) Definition.--`Controlled substance offense' means an offense
under federal or state law, punishable by imprisonment for a term
exceeding one year, that (I) prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense; or (II) is an offense
[[Page 5568]]
described in 46 U.S.C. 70503(a) or Sec. 70506(b).
(ii) Additional Considerations.--
(I) The term `controlled substance offense' includes the offenses
of aiding and abetting, attempting to commit, or conspiring to commit
any such offense.
(II) Unlawfully possessing a listed chemical with intent to
manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a
`controlled substance offense.'
(III) Unlawfully possessing a prohibited flask or equipment with
intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a
`controlled substance offense.'
(IV) Maintaining any place for the purpose of facilitating a drug
offense (21 U.S.C. 856) is a `controlled substance offense' if the
offense of conviction established that the underlying offense (the
offense facilitated) was a `controlled substance offense.'
(V) Using a communications facility in committing, causing, or
facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled
substance offense' if the offense of conviction established that the
underlying offense (the offense committed, caused, or facilitated) was
a `controlled substance offense.'
(VI) A violation of 18 U.S.C. 924(c) or Sec. 929(a) is a
`controlled substance offense' if the offense of conviction established
that the underlying offense was a `controlled substance offense.' (Note
that in the case of a prior 18 U.S.C. 924(c) or Sec. 929(a)
conviction, if the defendant also was convicted of the underlying
offense, the sentences for the two prior convictions will be treated as
a single sentence under Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History).)
(VII) In determining whether an offense is a controlled substance
offense, the offense of conviction (i.e., the conduct of which the
defendant was convicted) is the focus of inquiry.'';
and in Note 13 (as so redesignated) by striking the following:
`` `Crime of violence' and `controlled substance offense' have the
meaning given those terms in Sec. 4B1.2 (Definitions of Terms Used in
Section 4B1.1).''.]
[Firearms Option 2 (Providing Statutory Definitions of ``Crime of
Violence'' and ``Controlled Substance Offense'' for Sec. 2K2.1):
in Note 1 by striking the following:
`` `Controlled substance offense' has the meaning given that term
in Sec. 4B1.2(b) and Application Note 1 of the Commentary to Sec.
4B1.2 (Definitions of Terms Used in Section 4B1.1).
`Crime of violence' has the meaning given that term in Sec.
4B1.2(a) and Application Note 1 of the Commentary to Sec. 4B1.2.'';
and inserting the following:
`` `Controlled substance offense' has the meaning given the term
`serious drug offense' in 18 U.S.C. 924(e).
`Crime of violence' has the meaning given the term `violent felony'
in 18 U.S.C. 924(e).'';
and in Note 12 by striking the following:
`` `Crime of violence' and `controlled substance offense' have the
meaning given those terms in Sec. 4B1.2 (Definitions of Terms Used in
Section 4B1.1).''.]
Issues for Comment:
1. As explained in the synopsis of the proposed amendment, courts
use the ``categorical approach'' and the ``modified categorical
approach,'' as set forth in Supreme Court jurisprudence, to determine
whether a conviction is a ``crime of violence'' or a ``controlled
substance offense'' for purposes of Sec. 4B1.2 (Definitions of Terms
Used in Section 4B1.1). These Supreme Court cases, however, involved
statutory provisions (e.g., 18 U.S.C. 924(e)) rather than guideline
provisions.
The Commission seeks comment on whether determinations under the
career offender guideline should use a different approach, such as the
approaches provided above. What are the advantages and disadvantages of
the ``categorical approach'' as opposed to the approaches set forth in
the proposed amendment above?
2. The proposed amendment would amend Sec. 4B1.2(a) to eliminate
the use of the categorical approach, for purposes of federal offenses,
by listing specific federal statutes that qualify as a ``crime of
violence.'' Are there federal offenses that are covered by the proposed
``crime of violence'' definition but should not be? Are there federal
offenses that are not covered by the proposed definition but should be?
3. The proposed amendment sets forth two options for amending the
definition of ``crime of violence'' for purposes of state offenses.
Crime of Violence Option 1 would eliminate the use of the categorical
approach for purposes of state offenses by identifying a crime of
violence solely based on how an offense is designated (i.e., labeled)
under state law. Crime of Violence Option 2 would provide that a state
offense is presumptively a ``crime of violence'' if the statute of
conviction [meets each of the elements (other than federal
jurisdictional requirements)] [proscribes [conduct][an act or omission]
that [is described by] [satisfies][meets] the elements (other than
federal jurisdictional requirements)] of an offense set forth in the
proposed definition, regardless of whether the statute of conviction
includes additional elements (or means of committing any such elements)
that are broader than those of the offense. It sets forth a list of
violent offenses and defines most of these enumerated offenses by
referring to how that offense is described in a federal statute. Many
of the listed offenses qualify as a ``serious violent felony'' under 18
U.S.C. 3559(c). Crime of Violence Option 2 also brackets the
possibility of including additional offenses. It would define some of
these additional offenses, either by referring to how that offense is
described in a statute or by providing a guidelines definition of such
an offense.
The Commission seeks comment generally on each option and whether
either of the approaches provided for purposes of the ``crime of
violence'' definition is appropriate and would cover most violent
offenses under state law. Which of the options, if either, should the
Commission adopt? Should the Commission consider a different approach
to revise the ``crime of violence'' definition? Are there specific
state offenses that would be included in the definition of ``crime of
violence'' set forth in these options that should not be considered
crimes of violence? Are there specific state offenses that would not be
included in the definition set forth in these options, but should be?
For example, should the Commission include offenses such as terroristic
threats and resisting arrest in the list of offenses that should
qualify as a ``crime of violence''?
The Commission also seeks comment on whether the list of offenses
included for purposes of federal offenses and state offenses should
generally capture the same offenses. Should the Commission
differentiate between the types of federal offenses and state offenses
that should qualify as crimes of violence by providing different list
of offenses?
Finally, the Commission seeks comment on the proposed definitions
for the enumerated offenses listed in Crime of Violence Option 2. Are
these definitions appropriate? Should the Commission provide different
definitions? If so, what definitions should the Commission provide?
4. Crime of Violence Option 1 for amending the definition of
``crime of violence'' for purposes of state offenses would eliminate
the use of the categorical approach by providing a definition that is
based on how an offense is designated (i.e., labeled) under state law.
This option brackets a preliminary list of offense labels. The
Commission recognizes that
[[Page 5569]]
jurisdictions name each of these offenses in various ways that may be
appropriate to include in the definition of crime of violence. For
example, the Commission has identified that jurisdictions use different
labels for the highest degree of murder, including such labels as First
Degree Murder, Murder in the First Degree, Deliberate Homicide, First
Degree Intentional Homicide, Aggravated Murder, and Capital Murder.
Similarly, the Commission has identified the same issue with robbery;
states and United States territories use different labels such as
Robbery in the First Degree, Robbery in the Second Degree, Robbery in
the Third Degree, Aggravated Robbery, First Degree Aggravated Robbery,
Armed Robbery, Carjacking, Armed Carjacking, Robbery Involving Occupied
Motor Vehicle, Aggravated Vehicular Hijacking, Vehicular Hijacking,
Robbery by Intimidation, Robbery with a Dangerous Weapon, Assault with
Intent to Rob, and Robbery with Firearms or Other Dangerous Weapons.
The Commission anticipates identifying similar issues with the other
offenses listed in Crime of Violence Option 1.
For purposes of Crime of Violence Option 1, the Commission intends
that violent offenses, such as aggravated assault, arson, extortion,
kidnapping, murder, rape, robbery, sexual assault, and voluntary
manslaughter, by whatever name they are known under state law, are
included in the crime of violence definition. The Commission seeks
comment on whether the list of offenses provided as part of the ``crime
of violence'' definition should include the different ways in which
these offenses are labeled by different jurisdictions. If so, to what
level of specificity should the Commission include any such offense
labels? The Commission also seeks comment on how each of the states and
United States territories name each of these offenses. Finally, the
Commission seeks comment on whether other labels should be included in
the definition to adequately capture these offenses in Crime of
Violence Option 1. Are there states that do not include names, labels,
or titles in their criminal code that would need to be addressed in
another way? As an alternative, instead of listing offense labels,
should the Commission provide a list of the specific state statutes
that should qualify as ``crime of violence''? Would an approach that
lists specific state statutes as crimes of violence be more easily
administered? If so, which state statutes should be included?
5. The proposed amendment provides an exclusion to limit the scope
of the definition of ``crime of violence'' by adopting a sentence
length criteria similar to the one relating to petty and minor offenses
from subsection (c)(2) of Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History), and sets limitations if the defendant can
establish that: (i) the conviction for the offense resulted in a
sentence for which the defendant served less than [60 days][30 days] in
prison; (ii) the acts for which the defendant is criminally liable [did
not inflict, did not intend to inflict, and did not threaten to inflict
[serious] bodily injury to another person][did not cause, did not
intend to cause, and did not create a serious risk of physical harm to
another person] during the commission of the offense; or (iii) the
defendant's conduct during the commission of the offense was limited to
reckless or negligent conduct.
The Commission seeks comment on whether these limitations are
appropriate. Do these limitations appropriately exclude prior
convictions that should not qualify as crimes of violence under Sec.
4B1.2? Are there additional or different limitations that the
Commission should include? For example, should the Commission exclude
prior convictions for robbery and extortion offenses if the defendant
can establish that no firearm or other dangerous weapon was used in the
offense, no threat of use of a firearm or other dangerous weapon was
involved in the offense, and the offense did not result in death or
serious bodily injury to any person? Should the Commission exclude
prior convictions for arson offenses if the defendant can establish
that the offense posed, and the defendant reasonably believed the
offense posed, no threat to human life?
One of the limitations provides that an offense of conviction shall
not qualify as a ``crime of violence'' if the defendant can establish
that the defendant's conduct during the commission of the offense was
limited to reckless or negligent conduct. With this limitation, the
Commission intends to require a mens rea more culpable than
recklessness or negligence for the offense to qualify as a crime of
violence. The Commission seeks comment on whether the language of this
limitation accomplishes this goal or whether there is a better way to
do so.
6. The proposed amendment sets forth two options for limiting the
scope of the ``controlled substance offense'' definition. Controlled
Substance Offense Option 1 would revise the definition of ``controlled
substance offense'' to exclude state drug offenses from the scope of
its application by listing specific federal statutes relating to drug
offenses. The proposed amendment lists the federal statutes that are
controlled substance offenses under the current definition to maintain
the status quo. The list includes the federal drug trafficking statutes
that are specifically referenced in the career offender directive at 28
U.S.C. 994(h). The federal drug trafficking statutes that appear in
brackets are not cited in the directive. The Commission seeks comment
generally on whether the approach set forth in this option is
appropriate. Are there federal drug offenses that are covered by the
proposed amendment but should not be? Are there federal drug offenses
that are not covered by the proposed amendment but should be?
7. Controlled Substance Offense Option 2 for limiting the scope of
the ``controlled substance offense'' definition would maintain the
current definition but would limit its scope by setting a minimum
sentence length requirement for a prior conviction to qualify as a
``controlled substance offense.'' It provides three suboptions for such
limitation. The Commission seeks comment on whether it should adopt
Controlled Substance Offense Option 2 by keeping the current definition
of ``controlled substance offense'' and limiting qualifying prior
convictions to only convictions that received a certain number of
criminal history points or a certain length of sentence imposed or
served. If so, how should the Commission set that limit and on what
basis? The Commission also seeks comment on whether including a minimum
sentence length requirement for prior offenses to qualify as a
``controlled substance offense'' is consistent with the Commission's
authority under 28 U.S.C. 994(h). Should the Commission differentiate
between ``crimes of violence'' and ``controlled substance offenses'' in
setting a minimum sentence length requirement?
The Commission also seeks comment on each of the suboptions. Which
suboption, if any, should the Commission adopt?
8. Controlled Substance Offense Suboptions 2A and 2B for setting a
minimum sentence length requirement for a prior conviction to qualify
as a ``controlled substance offense'' bracket the possibility of
including a provision that states that a conviction of a controlled
substance offense shall not qualify as a prior felony conviction under
Sec. 4B1.2 if the defendant can establish that the conviction resulted
in a sentence for which the defendant served less than [five
years][three years][one year] in prison. The
[[Page 5570]]
Commission seeks comment on what types of sentences should be counted
for purposes of this provision. For example, should revocation
sentences count to determine whether the defendant served less than
[five years][three years][one year] in prison?
9. The Commission seeks comment on whether the definitions of
``crime of violence'' and ``controlled substance offense'' should still
address the offenses of attempting to commit a substantive offense and
conspiracy to commit a substantive offense. Should the Commission
provide additional requirements or guidance to address these types of
offenses?
10. As indicated above, several guidelines use the terms ``crime of
violence'' and ``controlled substance offense'' and define these terms
by making specific reference to Sec. 4B1.2. See the Commentary to
Sec. 2K1.3 (Unlawful Receipt, Possession, or Transportation of
Explosive Materials; Prohibited Transactions Involving Explosive
Materials), Sec. 2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition), Sec. 2S1.1 (Laundering of Monetary
Instruments; Engaging in Monetary Transactions in Property Derived from
Unlawful Activity), Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History), Sec. 4B1.4 (Armed Career Criminal), Sec.
7B1.1 (Classification of Violations (Policy Statement)), and Sec.
7C1.1 (Classification of Violations (Policy Statement)).
The proposed amendment effectively sets forth three alternatives
for addressing the references to ``crime of violence'' and ``controlled
substance offense'' in Sec. 2K2.1. First, absent additional changes to
Sec. 2K2.1, any revisions to the definitions in Sec. 4B1.2 would be
incorporated by reference to Sec. 2K2.1. In addition to the approach
of maintaining the current operation of Sec. 2K2.1 by incorporating
the definitions from Sec. 4B1.2, two options are presented. Firearms
Option 1 would maintain the status quo by amending the Commentary to
Sec. 2K2.1 to incorporate the relevant part or parts of the current
definitions from Sec. 4B1.2. Firearms Option 2 would amend the
Commentary to Sec. 2K2.1 to provide that ``controlled substance
offense'' has the meaning given the term ``serious drug offense'' in 18
U.S.C. 924(e) and ``crime of violence'' has the meaning given the term
``violent felony'' in 18 U.S.C. 924(e). The Commission seeks comment on
each of these options, or, in the alternative, whether Sec. 2K2.1
should continue to define the terms ``crime of violence'' and
``controlled substance offense'' by making specific references to Sec.
4B1.2 if the Commission were to promulgate the proposed amendment.
Similarly, the Commission seeks comment on the approach it should
take to address the references to ``crime of violence'' and
``controlled substance offense'' in the other guidelines cited above.
Should the Commission maintain the status quo by amending the
Commentary to any or all of these guidelines to incorporate the
relevant parts of Sec. 4B1.2? Should the Commission instead continue
to define these terms by making specific references to Sec. 4B1.2 if
the Commission were to promulgate the proposed amendment making changes
to the ``crime of violence'' and ``controlled substance offense''
definitions contained in Sec. 4B1.2? Should the Commission consider
moving these definitions from the commentary of these guidelines to the
guidelines themselves?
3. Circuit Conflicts Concerning Sec. 4B1.2(b)
Synopsis of Proposed Amendment: The proposed amendment addresses
two circuit conflicts involving the definition of ``controlled
substance offense'' in subsection (b) of Sec. 4B1.2 (Definitions of
Terms Used in Section 4B1.1).
Section Sec. 4B1.2(b) defines a ``controlled substance offense''
as ``an offense under federal or state law . . . that prohibits the
manufacture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the possession of
a controlled substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.'' Several other
guidelines incorporate this definition by reference, often providing
for higher base offense levels if the defendant committed the instant
offense after sustaining a conviction for a ``controlled substance
offense.'' See Sec. Sec. 2K1.3 (Unlawful Receipt, Possession, or
Transportation of Explosive Materials; Prohibited Transactions
Involving Explosive Materials), 2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition), 4B1.4 (Armed Career Criminal), 7B1.1
(Classification of Violations (Policy Statement)), and 7C1.1
(Classification of Violations (Policy Statement)).
The first circuit conflict concerns whether the definition of a
``controlled substance offense'' in Sec. 4B1.2(b) only includes
substances controlled by the federal Controlled Substances Act
(``CSA'') (21 U.S.C. 801 et seq.), or whether the definition also
includes substances controlled by applicable state law. This circuit
conflict prompted Justice Sotomayor, joined by Justice Barrett, to call
for the Commission to ``address this division to ensure fair and
uniform application of the [g]uidelines.'' Guerrant v. United States,
142 S. Ct. 640, 640-41 (2022) (statement of Sotomayor, J., with whom
Barrett, J. joins, respecting the denial of certiorari); Wiggins v.
United States, 145 S. Ct. 2621, 2622 (2025) (statement of Sotomayor,
J., with whom Barrett, J. joins, respecting denial of certiorari)
(collecting cases).
The Second, Fifth, and Ninth Circuits have held that a ``controlled
substance offense'' only includes offenses involving substances
controlled by federal law (the CSA), not offenses that include
substances that a state schedule lists as a controlled substance, but
the CSA does not. See United States v. Minor, 121 F.4th 1085, 1089-1090
(5th Cir. 2024) (holding that state-law offense counts only if it is a
categorical match for a federal offense); United States v. Bautista,
989 F.3d 698, 705 (9th Cir. 2021) (conviction under Arizona statute
criminalizing hemp as well as marijuana is not a ``controlled substance
offense'' because hemp is not listed in the CSA); United States v.
Townsend, 897 F.3d 66, 74 (2d Cir. 2018) (conviction under New York
statute prohibiting the sale of Human Chorionic Gonadotropin (``HCG'')
is not a ``controlled substance offense'' because HCG is not controlled
under the CSA). In these circuits, a state drug offense will not
qualify as a ``controlled substance offense'' if the state statute
includes any substance not controlled under federal law, even if the
offense involved a controlled substance that is covered by the CSA.
Because the lists of substances controlled under federal and state law
rarely match, and many state statutes do not require proof of the exact
substance as an element of the offense, this approach has the practical
effect of eliminating many state offenses involving controlled
substances under federal law.
By contrast, the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and
Eleventh Circuits have held that a state conviction that includes a
controlled substance that is not identified in the CSA can qualify as a
``controlled substance offense'' under the guidelines. See United
States v. Dubois, 94 F.4th 1284, 1294-96 (11th Cir. 2024) (``A drug
regulated by state law is a `controlled substance' for state predicate
offenses, even if federal law does not regulate that drug.''), cert.
granted, judgment vacated sub nom. Dubois v. United States, 145 S. Ct.
1041 (2025), reinstated by 139
[[Page 5571]]
F.4th 887 (11th Cir. 2025); United States v. Lewis, 58 F.4th 764, 771
(3d Cir. 2023) (``a `controlled substance' under [Sec. 4B1.2(b)] is a
drug regulated by either state or federal law''); United States v.
Jones, 81 F.4th 591, 598-99 (6th Cir. 2023) (controlled substance
offense includes ``state-law controlled substance offense[s]''); United
States v. Jones, 15 F.4th 1288, 1295 (10th Cir. 2021) (definition of
``controlled substance offense'' includes ``state-law controlled
substance offenses, involving substances not found on the CSA'');
United States v. Henderson, 11 F.4th 713, 718 (8th Cir. 2021) (``There
is no requirement that the particular substance underlying the state
offense is also controlled under a distinct federal law.''); United
States v. Ward, 972 F.3d 364, 374 (4th Cir. 2020) (``[T]he Commission
has specified that we look to either the federal or state law of
conviction to define whether an offense will qualify [as a controlled
substance offense].''); United States v. Ruth, 966 F.3d 642, 654 (7th
Cir. 2020) (``The career-offender guideline defines the term controlled
substance offense broadly, and the definition is most plainly read to
include state-law offenses[.]'' (citation and quotation omitted)).
The second circuit conflict concerns which temporal version of the
applicable drug schedule (whether federal or state) should be used to
decide if a prior offense qualifies as a predicate ``controlled
substance offense'': (1) the schedule in place at the time of
defendant's prior conviction; or (2) the schedule in place at the time
of the instant offense or sentencing for the instant federal offense.
The interpretations of the Third, Fourth, Sixth, Eighth, and Eleventh
Circuits conflict with those of the First, Second, Fifth, and Ninth
Circuits. Compare United States v. Nelson, 151 F.4th 577 (4th Cir.
2025); Dubois, 94 F.4th at 1296; Lewis, 58 F.4th at 771-73; United
States v. Perez, 46 F.4th 691, 703 (8th Cir. 2022); United States v.
Clark, 46 F.4th 404, 408 (6th Cir. 2022) (all using time of the prior
convictions), with United States v. Minor, 121 F.4h 1085 (5th Cir.
2024); United States v. Bautista, 989 F.3d 698, 703 (9th Cir. 2021),
and United States v. Abdulaziz, 998 F.3d 519, 523 (1st Cir. 2021) (all
using time of sentencing); see also United States v. Gibson, 55 F.4th
153, 165 (2d Cir. 2022), adhered to on reh'g, 60 F.4th 720 (2d Cir.
2023) (not time of prior conviction).
The Sixth Circuit has concluded that courts should use the drug
schedule in place at the time of defendant's prior conviction,
reasoning that the guideline's language ``indicates that the court
should take a backward-looking approach and assess the nature of the
predicate offenses at the time the convictions for those offenses
occurred.'' See United States v. Clark, 46 F.4th 404, 408 (6th Cir.
2022) (``controlled substance'' should be defined with reference to
``the drug schedules in place at the time of the prior convictions at
issue''). Likewise, the Third, Eighth, and Eleventh Circuits have held
that whether a conviction qualifies as a controlled substance offense
depends on the law at the time of the prior conviction. Dubois, 94
F.4th at 1298 (``We adopt a time-of-state-conviction rule: the term
`controlled substance,' . . . means a substance regulated by state law
when the defendant was convicted of the state drug offense, even if it
is no longer regulated when the defendant is sentenced for the federal
firearm offense.''); Lewis, 58 F.4th at 771-73 (``Simply put,
controlled substances include those regulated at the time of the
predicate conviction.''); United States v. Perez, 46 F.4th 691, 703
(8th Cir. 2022) (``And this court has also held that whether a prior
state conviction is a controlled substance offense for Guidelines
purposes is based on the law at the time of conviction, without
reference to current state law.'' (citation omitted)). More recently,
the Fourth Circuit held that courts must consult the federal drug
schedules in effect at the time of the prior conviction when
determining whether a prior offense qualifies as a ``controlled
substance offense'' under Sec. 4B1.2(b). United States v. Nelson, 151
F.4th 577 (4th Cir. 2025).
By contrast, the First, Fifth, and Ninth Circuits use the schedule
in place at the time of sentencing for the instant federal offense.
Accordingly, these circuits compare the elements of the statute of
conviction with the current version of the CSA and do not treat a prior
conviction as a controlled substance offense if the statute of
conviction encompasses conduct that is not currently criminalized by
the CSA. See Minor, 121 F.4th 1085 (holding that the term ``controlled
substance'' hinges on the definition of ``controlled substance'' in the
CSA ``in place at the time of sentencing for the instant offense.'');
United States v. Bautista, 989 F.3d 698, 703 (9th Cir. 2021) (``[A]
court must ask whether [a] prior crime qualifies as a `controlled
substance offense' under the CSA and the corresponding [g]uideline at
the time of sentencing.''); United States v. Abdulaziz, 998 F.3d 519,
523 (1st Cir. 2021) (``[I]nsofar as the CSA's drug schedules were
incorporated into the guideline itself at the time of [ ] sentencing, .
. . we must look to the version of those drug schedules that were `in
effect' at that time to determine what constituted a `controlled
substance' at that time.'' (citations omitted)).
The proposed amendment would amend Sec. 4A1.2(b) to address both
circuit conflicts.
The proposed amendment would first address the circuit conflict
relating to whether a substance involved in an offense must be
controlled under federal law by the CSA to qualify as a ``controlled
substance offense'' under Sec. 4B1.2(b). Two options are provided:
Option 1 would set forth a definition of ``controlled substance''
that adopts the approach of the Second, Fifth, and Ninth Circuits. It
would limit the definition of the term to substances that are
specifically included in the CSA. This option would resolve the circuit
conflict so as to preserve the status quo in circuits that
categorically exclude violations of those state statutes that control
substances not included in the CSA.
Option 2 would set forth a definition of ``controlled substance''
that adopts the approach of the Third, Fourth, Sixth, Seventh, Eighth,
Tenth, and Eleventh Circuits. It would provide that the term
``controlled substance'' refers to substances either included in the
CSA or otherwise controlled under applicable state law.
The proposed amendment would then address the circuit conflict
relating to which version of the applicable drug schedule determines
whether a prior conviction qualifies as a ``controlled substance
offense'' under Sec. 4B1.2(b). Two options are provided.
Option 1 would adopt the First, Fifth, and Ninth Circuits' approach
of using the schedule in place at the time of sentencing for the
instant federal offense.
Option 2 would adopt the Third, Fourth, Sixth, Eighth, and Eleventh
Circuits' approach of using the schedule in place at the time of
defendant's original conviction.
The proposed amendment would also amend the Commentary to Sec.
2L1.2 (Unlawfully Entering or Remaining in the United States), which
contains a definition for the term ``drug trafficking offense'' that
closely tracks the definition of ``controlled substance offense'' in
Sec. 4B1.2(b). It sets forth the same options discussed above for
Sec. 4B1.2(b).
Issues for comment are also provided.
Proposed Amendment:
Section 4B1.2(b) is amended by striking the following:
``Controlled Substance Offense.--The term `controlled substance
offense'
[[Page 5572]]
means an offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that--
(1) prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or
the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense; or
(2) is an offense described in 46 U.S.C. 70503(a) or Sec.
70506(b).'';
and inserting the following:
``Controlled Substance Offense.--The term `controlled substance
offense' means an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that--
(1) prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or
the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense; or
(2) is an offense described in 46 U.S.C. 70503(a) or Sec.
70506(b).
[Circuit Conflict 1 (Whether a Substance Involved in an Offense Must Be
Controlled by the Controlled Substances Act To Qualify as a
``Controlled Substance Offense'' Under Sec. 4B1.2(b))]
[Option 1 (Second, Fifth, and Ninth Circuits--Controlled Substances
under Federal Law):
For purposes of this provision, the term `controlled substance'
refers to a drug or other substance, or immediate precursor, listed in
schedule I, II, III, IV, or V of the Controlled Substances Act (21
U.S.C. 801 et seq.).]
[Option 2 (Third, Fourth, Sixth, Seventh, Eighth, Tenth, and
Eleventh Circuits--Controlled Substances under Federal or State Law):
For purposes of this provision, the term `controlled substance'
refers to a drug or other substance, or immediate precursor, either
listed in schedule I, II, III, IV, or V of the Controlled Substances
Act (21 U.S.C. 801 et seq.) or otherwise controlled under applicable
state law.]
[Circuit Conflict 2 (Which Version of the Applicable Drug Schedule
Determines Whether a Prior Conviction Qualifies as a ``Controlled
Substance Offense'' Under Sec. 4B1.2(b))]
[Option 1 (First, Fifth, and Ninth Circuits--Schedule at Time of
Sentencing of Instant Offense):
For purposes of this provision, the term `controlled substance'
refers to a drug or other substance, or immediate precursor, that is
controlled under the applicable law at the time of sentencing for the
instant offense.]
[Option 2 (Third, Fourth, Sixth, Eighth, and Eleventh Circuits--
Schedule at Time of Original Conviction):
For purposes of this provision, the term `controlled substance'
refers to a drug or other substance, or immediate precursor, that was
controlled under the applicable law at the time the defendant was
originally convicted for the offense.]''.
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is
amended in Note 2 by striking the following:
`` `Drug trafficking offense' means an offense under federal,
state, or local law that prohibits the manufacture, import, export,
distribution, or dispensing of, or offer to sell a controlled substance
(or a counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.'';
and inserting the following:
`` `Drug trafficking offense' means an offense under federal,
state, or local law that prohibits the manufacture, import, export,
distribution, or dispensing of, or offer to sell a controlled substance
(or a counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
[Circuit Conflict 1 (Whether a Substance Involved in an Offense Must Be
Controlled by the Controlled Substances Act To Qualify as a ``Drug
Trafficking Offense'' Under Sec. 2L1.2)]
[Option 1 (Second, Fifth, and Ninth Circuits--Controlled Substances
under Federal Law):
For purposes of this provision, the term `controlled substance'
refers to a drug or other substance, or immediate precursor, listed in
schedule I, II, III, IV, or V of the Controlled Substances Act (21
U.S.C. 801 et seq.).]
[Option 2 (Third, Fourth, Sixth, Seventh, Eighth, Tenth, and
Eleventh Circuits--Controlled Substances under Federal or State Law):
For purposes of this provision, the term `controlled substance'
refers to a drug or other substance, or immediate precursor, either
listed in schedule I, II, III, IV, or V of the Controlled Substances
Act (21 U.S.C. 801 et seq.) or otherwise controlled under applicable
state law.]
[Circuit Conflict 2 (Which Version of the Applicable Drug Schedule
Determines Whether a Prior Conviction Qualifies as a ``Drug Trafficking
Offense'' Under Sec. 2L1.2)]
[Option 1 (First, Fifth, and Ninth Circuits--Schedule at Time of
Sentencing of Instant Offense):
For purposes of this provision, the term `controlled substance'
refers to a drug or other substance, or immediate precursor, that is
controlled under the applicable law at the time of sentencing for the
instant offense.]
[Option 2 (Third, Fourth, Sixth, Eighth, and Eleventh Circuits--
Schedule at Time of Original Conviction):
For purposes of this provision, the term `controlled substance'
refers to a drug or other substance, or immediate precursor, that was
controlled under the applicable law at the time the defendant was
originally convicted for the offense.]''.
Issues for Comment:
1. The proposed amendment would amend subsection (b) of Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1) to address the circuit
conflicts described in the synopsis above by providing two options for
each circuit conflict. The Commission seeks comment on whether it
should address the circuit conflicts in a manner other than the options
provided in the proposed amendment. If so, how?
2. Several guidelines use the term ``controlled substance offense''
and define the terms by making specific reference to Sec. 4B1.2. See,
e.g., the Commentary to Sec. 2K1.3 (Unlawful Receipt, Possession, or
Transportation of Explosive Materials; Prohibited Transactions
Involving Explosive Materials), Sec. 2K2.1 (Unlawful Receipt,
Possession, or Transportation of Firearms or Ammunition; Prohibited
Transactions Involving Firearms or Ammunition), Sec. 4B1.4 (Armed
Career Criminal), Sec. 7B1.1 (Classification of Violations (Policy
Statement)), and Sec. 7C1.1 (Classification of Violations (Policy
Statement)).
If the Commission were to promulgate any of the options set forth
in the proposed amendment for each circuit conflict, should any or all
of these guidelines continue to define the term ``controlled substance
offense'' by making specific references to Sec. 4B1.2? Should the
Commission maintain the status quo by amending the Commentary to these
guidelines to incorporate the relevant parts of Sec. 4B1.2? Should the
Commission consider moving these definitions from the commentary of
these guidelines to the guidelines themselves?
[[Page 5573]]
4. Human Smuggling
Synopsis of Proposed Amendment: This proposed amendment is a result
of the Commission's ``[e]xamination of Sec. 2L1.1 (Smuggling,
Transporting, or Harboring an Unlawful Alien) to ensure the guidelines
appropriately account for the consideration of factors such as the
number of humans smuggled and whether the offense involved bodily
injury or sexual assault.'' See U.S. Sent'g Comm'n, ``Notice of Final
Priorities,'' 90 FR 39264 (Aug. 14, 2025).
Offenses involving the smuggling, transporting, and harboring of
unlawful aliens and aiding, abetting, and conspiring to commit such
offenses, are referenced to Sec. 2L1.1. The guideline contains a
specific offense characteristic that provides a tiered enhancement
based on the number of unlawful aliens who were smuggled, transported,
or harbored. USSG Sec. 2L1.1(b)(2). Offenses involving 6-24 aliens
receive a 3-level increase, those involving 25-99 aliens receive a 6-
level increase, and those involving 100 or more aliens receive a 9-
level increase. Id. Commission data show that almost sixty percent
(59%) of cases sentenced under Sec. 2L1.1 in fiscal year 2024 did not
receive an enhancement under Sec. 2L1.1(b)(2) for the number of aliens
involved in the offense. On average, those cases involved three aliens.
When the enhancement was applied, the substantial majority of cases
received the 3-level increase at subsection (b)(2)(A) (6-24 aliens). In
those cases that received the 3-level enhancement, the offense involved
an average of 12 aliens, while cases that received the 6-level
enhancement at subsection (b)(2)(B) involved an average of 50 aliens.
For those cases that received the highest increase of nine levels at
subsection (b)(2)(C) because the offense involved 100 or more aliens,
the average number of aliens was 832. However, the median number of
aliens for that group was 175.
For an offense in which any person died or sustained a bodily
injury, Sec. 2L1.1(b)(7) provides a tiered enhancement based on the
severity of the injury sustained. USSG Sec. 2L1.1(b)(7). Under the
tiered enhancement, ``bodily injury'' results in a 2-level increase,
``serious bodily injury'' results in a 4-level increase, ``permanent or
life-threatening injury'' results in a 6-level increase, and ``death''
results in a 10-level increase. Id. The Commentary to Sec. 2L1.1
refers to the definition of ``serious bodily injury'' in Application
Note 1 of Sec. 1B1.1 (Application Instructions). That definition
provides that `` `serious bodily injury' is deemed to have occurred if
the offense involved conduct constituting criminal sexual abuse under
18 U.S.C. 2241 [(Aggravated sexual abuse)] or Sec. 2242 [(Sexual
abuse)] or any similar offense under state law.'' USSG Sec. 1B1.1,
comment. (n.1(L)).
In comments to the Commission, the Department of Justice expressed
concerns regarding Sec. 2L1.1. The Department opined that the
guideline does not reflect a congressional intent ``to provide
increased punishment for each alien smuggled.'' Letter from Scott
Meisler, Deputy Chief, Crim. Div., U.S. Dep't of Just., to the Hon.
Carlton W. Reeves, Chair, U.S. Sent'g Comm'n, 14 (July 18, 2025),
<a href="https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202507/90FR24170_public-comment_R.pdf#page=97">https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202507/90FR24170_public-comment_R.pdf#page=97</a>. The Department
also expressed that Sec. 2L1.1 does not adequately address human
smuggling cases in which a victim was sexually abused or otherwise
sexually assaulted. Id.
The proposed amendment would revise Sec. 2L1.1 to respond to these
concerns.
The proposed amendment would amend Sec. 2L1.1(b)(2) based on the
Commission's sentencing data by creating more tiers based on the number
of aliens involved and decreasing the number of aliens in each tier.
Under the proposed amendment, offenses involving [6]-12 aliens would
receive a 3-level enhancement, offenses involving 13-18 aliens would
receive a [4]-level enhancement, offenses involving 19-24 aliens would
receive a [5]-level enhancement, offenses involving 25-49 aliens would
receive a [6]-level enhancement, offenses involving 50-99 aliens would
receive a [7]-level enhancement, and offenses involving 100 or more
aliens would receive a 9-level enhancement.
The proposed amendment would insert a new subsection (b)(6)
applying a 2-level enhancement if the offense involved concealing
persons in the trunk or engine compartment of a motor vehicle or
carrying substantially more passengers than the rated capacity of a
motor vehicle or vessel. If the resulting offense level is less than
18, then the new provision would provide that the offense level be
increased to level 18. The existing subsection (b)(6) would be
renumbered as subsection (b)(7) and would be amended to provide that it
does not apply to conduct for which the defendant received an
enhancement under subsection (b)(5) or new subsection (b)(6).
Subsection (b)(7) (as renumbered) would also expressly provide that
``serious bodily injury'' includes criminal sexual abuse.
The proposed amendment would amend subsection (b)(8) (as
renumbered) providing an enhancement for an offense involving death or
bodily injury. It would bracket the possibility of amending subsection
(b)(8) (as renumbered) so that a 2-level enhancement would apply to an
offense in which a person was subjected to conduct constituting
criminal sexual contact under 18 U.S.C. 2244. It would also clarify
that the 4-level enhancement for serious bodily injury applies to cases
involving criminal sexual abuse.
The proposed amendment provides two options for adding a provision
to subsection (b)(8) (as renumbered) providing for an enhancement for
cases in which multiple people die or sustain an injury.
Option 1 would add a new subdivision to (b)(8) (as renumbered)
providing a new tiered enhancement if additional people died or
sustained an injury. It contains two bracketed possibilities for the
enhancement. The first bracketed possibility would apply if the offense
resulted in death, any degree of bodily injury[, or criminal sexual
contact] to additional people. The second bracketed possibility would
apply if the defendant intentionally or knowingly caused death, any
degree of bodily injury[, or criminal sexual contact] to additional
people. Under both possibilities, an offense would be subject to a [1]-
level increase if one or two additional people died or sustained any
degree of bodily injury; and an offense would be subject to a [2]-level
increase if three or more people died or sustained any degree of bodily
injury.
Option 2 would add a new subdivision to (b)(8) (as renumbered)
providing a new tiered enhancement if additional people died or
sustained permanent or life-threatening injury. It contains two
bracketed possibilities for the enhancement. The first bracketed
possibility would apply if the offense resulted in death or permanent
or life-threatening bodily injury to additional people. The second
bracketed possibility would apply if the defendant intentionally or
knowingly caused death or permanent or life-threatening bodily injury
to additional people. Under both possibilities, an offense would be
subject to a [3]-level increase if one or two additional people died or
sustained permanent or life-threatening injury; and an offense would be
subject to a [6]-level increase if three or more people died or
sustained permanent or life-threatening injury.
Finally, the proposed amendment brackets two possibilities for
adding a
[[Page 5574]]
new cross reference at Sec. 2L1.1(c)(2) instructing courts to apply
the appropriate guideline from Chapter Two, Part A, Subpart 3 depending
on whether there was conduct described in 18 U.S.C. 2241-2244. Under
the first bracketed possibility, the cross reference would apply if the
offense involved such conduct. Under the second bracketed possibility,
the cross reference would apply if the defendant engaged in such
conduct.
Issues for comment are also provided.
Proposed Amendment:
Section 2L1.1(b) is amended--
in paragraph (2) by striking the following:
``Number of Unlawful Aliens
------------------------------------------------------------------------
Smuggled, transported, or harbored Increase in level
------------------------------------------------------------------------
(A) 6-24............................. add 3.
(B) 25-99............................ add 6.
(C) 100 or more...................... add 9..'';.
------------------------------------------------------------------------
and inserting the following:
``Number of Unlawful Aliens
------------------------------------------------------------------------
Smuggled, transported, or harbored Increase in level
------------------------------------------------------------------------
(A) [6]-12........................... add 3.
(B) 13-18............................ add [4].
(C) 19-24............................ add [5].
(D) 25-49............................ add [6].
(E) 50-99............................ add [7].
(F) 100 or more...................... add 9.'';.
------------------------------------------------------------------------
by redesignating paragraphs (8) and (9) as paragraphs (9) and (10),
respectively;
by striking paragraphs (6) and (7) as follows:
``(6) If the offense involved intentionally or recklessly creating
a substantial risk of death or serious bodily injury to another person,
increase by 2 levels, but if the resulting offense level is less than
level 18, increase to level 18.
(7) If any person died or sustained bodily injury, increase the
offense level according to the seriousness of the injury:
------------------------------------------------------------------------
Death or degree of injury Increase in level
------------------------------------------------------------------------
(A) Bodily Injury.................... add 2 levels.
(B) Serious Bodily Injury............ add 4 levels.
(C) Permanent or Life-Threatening add 6 levels.
Bodily Injury.
(D) Death............................ add 10 levels.'';.
------------------------------------------------------------------------
and inserting before paragraph (9) (as so redesignated) the
following new paragraphs (6), (7), and (8):
``(6) If the offense involved (A) concealing persons in the trunk
or engine compartment of a motor vehicle, or (B) carrying substantially
more passengers than the rated capacity of a motor vehicle or vessel,
increase by [2] levels, but if the resulting offense level is less than
level 18, increase to level 18.
(7) If the offense involved conduct (other than conduct for which
the defendant received an enhancement under subsection (b)(5) or
(b)(6)) that intentionally or recklessly created a substantial risk of
death or serious bodily injury (including criminal sexual abuse under
18 U.S.C. 2241 or 2242 or any similar offense under state law) to
another person, increase by 2 levels, but if the resulting offense
level is less than level 18, increase to level 18.
(8) (A) If any person died, sustained bodily injury (including
criminal sexual abuse under 18 U.S.C. 2241 or 2242 or any similar
offense under state law)[, or was subjected to conduct constituting
criminal sexual contact under 18 U.S.C. 2244], increase the offense
level according to the seriousness of the injury:
------------------------------------------------------------------------
Death or degree of injury Increase in level
------------------------------------------------------------------------
(i) Bodily Injury [or Criminal Sexual add 2 levels.
Contact].
(ii) Serious Bodily Injury (Including add 4 levels.
Criminal Sexual Abuse).
(iii) Permanent or Life-Threatening add 6 levels.
Bodily Injury.
(iv) Death........................... add 10 levels.
------------------------------------------------------------------------
[Option 1 (increase for any additional injuries):
(B) If subsection (b)(8)(A) applies and [the offense resulted
in][the defendant intentionally or knowingly caused] death, any degree
of injury listed above[, or criminal sexual contact under 18 U.S.C.
2244]--
(i) to one or two additional people, increase by [1] level; or
(ii) to three or more additional people, increase by [2] levels.]
[Option 2 (increase for additional deaths or permanent or life-
threatening injuries):
(B) If subsection (b)(8)(A) applies and [the offense resulted
in][the defendant intentionally or knowingly caused] death or permanent
or life-threatening bodily injury--
(i) to one or two additional people, increase by [3] levels; or
(ii) to three or more additional people, increase by [6]
levels.]''.
[[Page 5575]]
Section 2L1.1(c) is amended by inserting at the end the following
new paragraph (2):
``(2) If the [offense involved][defendant engaged in] conduct
described in 18 U.S.C. 2241-2244, apply the appropriate guideline from
Chapter Two, Part A, Subpart 3, if the resulting offense level is
greater than that determined under this guideline.''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended--
by striking Notes 3 and 4 as follows:
``3. Application of Subsection (b)(6).--Reckless conduct to which
the adjustment from subsection (b)(6) applies includes a wide variety
of conduct (e.g., transporting persons in the trunk or engine
compartment of a motor vehicle; carrying substantially more passengers
than the rated capacity of a motor vehicle or vessel; harboring persons
in a crowded, dangerous, or inhumane condition; or guiding persons
through, or abandoning persons in, a dangerous or remote geographic
area without adequate food, water, clothing, or protection from the
elements). If subsection (b)(6) applies solely on the basis of conduct
related to fleeing from a law enforcement officer, do not apply an
adjustment from Sec. 3C1.2 (Reckless Endangerment During Flight).
Additionally, do not apply the adjustment in subsection (b)(6) if the
only reckless conduct that created a substantial risk of death or
serious bodily injury is conduct for which the defendant received an
enhancement under subsection (b)(5).
4. Application of Subsection (b)(7) to Conduct Constituting
Criminal Sexual Abuse.--Consistent with Application Note 1(L) of Sec.
1B1.1 (Application Instructions), `serious bodily injury' is deemed to
have occurred if the offense involved conduct constituting criminal
sexual abuse under 18 U.S.C. 2241 or Sec. 2242 or any similar offense
under state law.''; and inserting the following new Notes 3 and 4:
``3. Application of Subsection (b)(7).--
(A) Reckless Conduct.--Reckless conduct to which the adjustment
from subsection (b)(7) applies includes a wide variety of conduct
(e.g., harboring persons in a crowded, dangerous, or inhumane
condition; or guiding persons through, or abandoning persons in, a
dangerous or remote geographic area without adequate food, water,
clothing, or protection from the elements).
(B) Interaction with Other Guideline Provisions.--If subsection
(b)(7) applies solely on the basis of conduct related to fleeing from a
law enforcement officer, do not apply an adjustment from Sec. 3C1.2
(Reckless Endangerment During Flight).
4. [Application of Subsections (b)(7) and (b)(8) to Conduct
Constituting Criminal Sexual Abuse.--If subsection (b)(8) applies on
the basis of conduct constituting criminal sexual abuse under 18 U.S.C.
2241 or Sec. 2242 or any similar offense under state law, then
subsection (b)(7) should also apply.]''; and in Note 5 by striking
``subsection (b)(8)(A)'' and inserting ``subsection (b)(9)(A)''.
Issues for Comment:
1. The proposed amendment would amend the table at Sec.
2L1.1(b)(2) providing an enhancement based on the number of unlawful
aliens involved in the offense. Is the proposed number of unlawful
aliens in each category appropriate given the corresponding offense-
level enhancement? Should the Commission revise the number of unlawful
aliens for any of the categories? If so, what should the number of
unlawful aliens be for each category? Should an enhancement apply to
offenses involving fewer than six aliens? If so, what number of aliens
should trigger application of the enhancement? Is the proposed level
enhancement for each category appropriate? If not, what should each
level enhancement be?
2. The proposed amendment brackets the possibility of amending
Sec. 2L1.1(b)(8) (as renumbered) to apply a 2-level enhancement to an
offense involving criminal sexual contact under 18 U.S.C. 2244. The
Commission seeks comment on whether offenses involving criminal sexual
contact should receive an enhancement. If so, what level should the
enhancement be?
3. The proposed amendment provides two options for adding an
enhancement at Sec. 2L1.1(b)(8)(B) (as renumbered) that would apply if
there were multiple deaths or injuries. Option 1, which would apply if
there were multiple people who sustained an injury of any type covered
under the existing table in subsection (b)(8)(A) (as renumbered), would
apply a [1]-level enhancement if there were one or two additional
injured persons, or a [2]-level enhancement if there were three or more
injured persons. Option 2, which would apply if there were multiple
people who died or sustained a permanent or life-threatening bodily
injury, would apply a [3]-level enhancement if one or two people died
or sustained such an injury, or a [6]-level enhancement if three or
more people died or sustained such an injury. Both options bracket the
possibility of either making the enhancement offense-based or
defendant-based. The Commission seeks comment on the following:
(A) Does either of the options appropriately account for offenses
resulting in multiple deaths or injuries? Do the enhancements
appropriately account for the severity of any additional injuries?
(B) Should the enhancement be either offense-based or defendant-
based, or should the Commission consider another approach? If the
enhancement is defendant-based, should the Commission include the mens
rea requirement that the defendant ``intentionally or knowingly''
caused the injury?
(C) Is there another approach the Commission should consider? For
example, should the Commission create an enhancement that treats an
offense resulting in multiple injuries of a lesser degree the same as
an offense resulting in fewer, but more severe, injuries? If so, how
should that enhancement work?
4. The Commission seeks comment on whether it should add--either in
addition to or in lieu of the changes in the proposed amendment--a
specific offense characteristic to Sec. 2L1.1 to further address the
risks associated with human smuggling offenses committed by members of
transnational criminal organizations. For example, should the
Commission add a specific offense characteristic providing an
enhancement if the defendant ``committed the offense in connection with
the defendant's participation in an organization, knowing [or with
reckless disregard of the fact] that the organization was a
transnational criminal organization (as defined in 21 U.S.C.
2341(5))''? The Commission seeks comment on the following:
(A) Should the Commission add a specific offense characteristic to
Sec. 2L1.1 addressing transnational criminal organizations, such as
the language proposed above? If so, at what level should the Commission
set the enhancement?
(B) The proposed language above would apply to offenses involving a
``transnational criminal organization,'' as defined in 21 U.S.C.
2341(5). That statutory definition comprises three subsections, each
describing a type of criminal organization. Is this an appropriate
definition for purposes of the proposed enhancement? If so, should the
Commission use the full statutory definition, or should the Commission
use only part of the statutory definition? Should the Commission use a
different definition? If so, what definition should the Commission use?
Alternatively, should the Commission limit application of the
enhancement to specifically enumerated criminal organizations, such as
those
[[Page 5576]]
listed in 21 U.S.C. 2341(5)(B) or a list of organizations specifically
identified by the Commission?
(C) The proposed language above would apply to a defendant who
participates in a transnational criminal organization. Should the
Commission limit application of the enhancement to a defendant who
receives an adjustment under Sec. 3B1.1 (Aggravating Role), or who
holds a leadership or organizing role (or some other role) within a
transnational criminal organization?
(D) The proposed language would include a requirement that the
defendant participated in an organization ``knowing [or with reckless
disregard of the fact]'' that the organization was a transnational
criminal organization. Is this mens rea requirement appropriate, or
should the Commission revise or remove the requirement?
(E) If the Commission were to promulgate a new specific offense
characteristic related to transnational criminal organizations, could
it result in unwarranted sentencing disparities? If so, how should the
Commission address those disparities?
5. Are there any other aggravating or mitigating circumstances in
cases sentenced under Sec. 2L1.1 that the Commission should address?
If so, what are those circumstances, and how might the Commission
account for them?
[FR Doc. 2026-02441 Filed 2-5-26; 8:45 am]
BILLING CODE 2210-40-P
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</html>Indexed from Federal Register on February 6, 2026.
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