Notice2026-08647
Sentencing Guidelines for United States Courts
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 4, 2026
Effective
November 1, 2026
Issuing agencies
United States Sentencing Commission
Abstract
The United States Sentencing Commission hereby gives notice that the Commission has promulgated amendments to the sentencing guidelines, policy statements, and commentary. This notice sets forth the text of the amendments and the reason for each amendment.
Full Text
<html>
<head>
<title>Federal Register, Volume 91 Issue 85 (Monday, May 4, 2026)</title>
</head>
<body><pre>
[Federal Register Volume 91, Number 85 (Monday, May 4, 2026)]
[Notices]
[Pages 24088-24113]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08647]
[[Page 24087]]
Vol. 91
Monday,
No. 85
May 4, 2026
Part III
United States Sentencing Commission
-----------------------------------------------------------------------
Sentencing Guidelines for United States Courts; Notice
Federal Register / Vol. 91 , No. 85 / Monday, May 4, 2026 / Notices
[[Page 24088]]
-----------------------------------------------------------------------
UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of submission to Congress of amendments to the
sentencing guidelines effective November 1, 2026.
-----------------------------------------------------------------------
SUMMARY: The United States Sentencing Commission hereby gives notice
that the Commission has promulgated amendments to the sentencing
guidelines, policy statements, and commentary. This notice sets forth
the text of the amendments and the reason for each amendment.
DATES: The Commission has specified an effective date of November 1,
2026, for the amendments set forth in this notice.
FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs
Specialist, (202) 502-4597.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day of May each
year pursuant to 28 U.S.C. 994(p). Absent action of the Congress to the
contrary, submitted amendments become effective by operation of law on
the date specified by the Commission (generally November 1 of the year
in which the amendments are submitted to Congress).
Pursuant to its authority under 28 U.S.C. 994(p), the Commission
has promulgated amendments to the sentencing guidelines, policy
statements, and commentary. Notices of proposed amendments were
published in the Federal Register on December 19, 2025 (see 90 FR
59660) and February 6, 2026 (see 91 FR 5556). The Commission held
public hearings on the proposed amendments in Washington, DC, on
February 17, 2026, and March 9, 2026. On April 30, 2026, the Commission
submitted the promulgated amendments to the Congress and specified an
effective date of November 1, 2026.
The text of the amendments to the sentencing guidelines, policy
statements, and commentary, and the reason for each amendment, is set
forth below. Additional information pertaining to the amendments
described in this notice may be accessed through the Commission's
website at <a href="http://www.ussc.gov">www.ussc.gov</a>.
Authority: 28 U.S.C. 994(a), (o), (p), and (u); USSC Rules of
Practice and Procedure 2.2, 4.1, and 4.1A.
Carlton W. Reeves,
Chair.
Amendments to the Sentencing Guidelines, Policy Statements, and
Official Commentary
1. Amendment: Section 2A5.1 is amended by striking subsection (b)
as follows:
``(b) Specific Offense Characteristic
(1) If death resulted, increase by 5 levels.''.
Section 2B1.5(b) is amended by striking paragraph (6) as follows:
``(6) If a dangerous weapon was brandished or its use was
threatened, increase by 2 levels. If the resulting offense level is
less than level 14, increase to level 14.''.
The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is
amended--
by striking Note 7 as follows:
``7. Dangerous Weapons Enhancement Under Subsection (b)(6).--For
purposes of subsection (b)(6), `brandished' and `dangerous weapon' have
the meaning given those terms in Application Note 1 of the Commentary
to Sec. 1B1.1 (Application Instructions).'';
and by redesignating Note 8 as Note 7.
Section 2B2.3(b) is amended by striking paragraph (3) as follows:
``(3) If (A) the offense involved invasion of a protected computer;
and (B) the loss resulting from the invasion (i) exceeded $2,500 but
did not exceed $6,500, increase by 1 level; or (ii) exceeded $6,500,
increase by the number of levels from the table in Sec. 2B1.1 (Theft,
Property Destruction, and Fraud) corresponding to that amount.''.
The Commentary to Sec. 2B2.3 captioned ``Application Notes'' is
amended--
in the caption by striking ``Notes'' and inserting ``Note'';
in Note 1 by striking the following:
`` `Protected computer' means a computer described in 18 U.S.C.
1030(e)(2)(A) or (B).'';
and by striking Note 2 as follows:
``2. Application of Subsection (b)(3).--Valuation of loss is
discussed in Sec. 2B1.1 (Theft, Property Destruction, and Fraud) and
the Commentary to Sec. 2B1.1.''.
Section 2B6.1(b) is amended by striking paragraph (3) as follows:
``(3) If the offense involved an organized scheme to steal vehicles
or vehicle parts, or to receive stolen vehicles or vehicle parts, and
the offense level as determined above is less than level 14, increase
to level 14.''.
The Commentary to Sec. 2B6.1 captioned ``Application Notes'' is
amended--
in the caption by striking ``Notes'' and inserting ``Note'';
by striking Note 1 as follows:
``1. Subsection (b)(3), referring to an `organized scheme to steal
vehicles or vehicle parts, or to receive stolen vehicles or vehicle
parts,' provides an alternative minimum measure of loss in the case of
an ongoing, sophisticated operation such as an auto theft ring or `chop
shop.' `Vehicles' refers to all forms of vehicles, including aircraft
and watercraft. See Commentary to Sec. 2B1.1 (Theft, Property
Destruction, and Fraud).'';
and by redesignating Note 2 as Note 1.
Section 2D1.1(b) is amended--
by striking paragraph (10) as follows:
``(10) If the defendant was convicted under 21 U.S.C. 841(g)(1)(A),
increase by 2 levels.'';
by redesignating paragraphs (11) through (18) as paragraphs (10)
through (17), respectively;
and in paragraph (12) (as so redesignated) by striking ``subsection
(b)(13)(B)'' and inserting ``subsection (b)(12)(B)''.
Section 2D1.1(e)(2)(C) is amended by striking ``subsection
(b)(17)'' and inserting ``subsection (b)(16)''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended--
in Note 16 by striking ``Subsection (b)(11)'' both places it
appears and inserting ``Subsection (b)(10)''; and by striking ``Sec.
2D1.1(b)(16)(D)'' and inserting ``Sec. 2D1.1(b)(15)(D)'';
in Note 17 by striking ``Subsection (b)(12)'' both places it
appears and inserting ``Subsection (b)(11)'';
in Note 18, in the heading, by striking ``Subsection (b)(14)'' and
inserting ``Subsection (b)(13)'';
in Note 18(A) by striking ``Subsection (b)(14)(A)'' both places it
appears and inserting ``Subsection (b)(13)(A)'';
in Note 18(B) by striking ``(Subsection (b)(14)(C)-(D))'' and
inserting ``(Subsection (b)(13)(C)-(D))''; by striking ``subsection
(b)(14)(C)(ii) or (D)'' and inserting ``subsection (b)(13)(C)(ii) or
(D)''; and by striking ``subsection (b)(14)(D)'' and inserting
``subsection (b)(13)(D)'';
in Note 19 by striking ``Subsection (b)(15)'' both places it
appears and inserting ``Subsection (b)(14)''; and by striking
``subsection (b)(14)(A) and (b)(15)'' and inserting ``subsections
(b)(13)(A) and (b)(14)'';
[[Page 24089]]
in Note 20, in the heading, by striking ``Subsection (b)(16)'' and
inserting ``Subsection (b)(15)'';
in Note 20(A) by striking ``(Subsection (b)(16)(B))'' and inserting
``(Subsection (b)(15)(B))''; and by striking ``subsection (b)(16)(B)''
and inserting ``subsection (b)(15)(B)'';
in Note 20(B) by striking ``(Subsection (b)(16)(C))'' and inserting
``(Subsection (b)(15)(C))''; by striking ``Subsection (b)(16)(C)'' and
inserting ``Subsection (b)(15)(C)''; and by striking ``subsection
(b)(16)(C)'' and inserting ``subsection (b)(15)(C)'';
in Note 20(C) by striking ``(Subsection (b)(16)(E))'' and inserting
``(Subsection (b)(15)(E))''; and by striking ``subsection (b)(16)(E)''
and inserting ``subsection (b)(15)(E)'';
and in Note 21 by striking ``Subsection (b)(18)'' and inserting
``Subsection (b)(17)''; and by striking ``subsection (b)(18)'' both
places it appears and inserting ``subsection (b)(17)''.
The Commentary to Sec. 2D1.1 captioned ``Background'' is amended
by striking ``Subsection (b)(11)'' and inserting ``Subsection
(b)(10)''; by striking ``Subsection (b)(12)'' and inserting
``Subsection (b)(11)''; by striking ``Subsection (b)(14)(A)'' and
inserting ``Subsection (b)(13)(A)''; by striking ``Subsection
(b)(14)(C)(ii) and (D)'' and inserting ``Subsection (b)(13)(C)(ii) and
(D)''; by striking ``Subsection (b)(16)'' and inserting ``Subsection
(b)(15)''; and by striking ``Subsection (b)(17)'' and inserting
``Subsection (b)(16)''.
Section 2D1.11(b) is amended--
by striking paragraph (2) as follows:
``(2) If the defendant is convicted of violating 21 U.S.C.
841(c)(2) or (f)(1), or Sec. 960(d)(2), (d)(3), or (d)(4), decrease by
3 levels, unless the defendant knew or believed that the listed
chemical was to be used to manufacture a controlled substance
unlawfully.'';
by redesignating paragraphs (3) and (4) as paragraphs (2) and (3),
respectively;
by striking paragraph (5) as follows:
``(5) If the defendant is convicted under 21 U.S.C. 865, increase
by 2 levels.'';
and by redesignating paragraph (6) as paragraph (4).
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended--
by striking Note 3 as follows:
``3. Application of Subsection (b)(2).--Convictions under 21 U.S.C.
841(c)(2) and (f)(1), and 960(d)(2), (d)(3), and (d)(4) do not require
that the defendant have knowledge or an actual belief that the listed
chemical was to be used to manufacture a controlled substance
unlawfully. In a case in which the defendant possessed or distributed
the listed chemical without such knowledge or belief, a 3-level
reduction is provided to reflect that the defendant is less culpable
than one who possessed or distributed listed chemicals knowing or
believing that they would be used to manufacture a controlled substance
unlawfully.'';
by redesignating Notes 4 through 9 as Notes 3 through 8,
respectively;
in Note 3 (as so redesignated) by striking ``Subsection (b)(3)''
both places it appears and inserting ``Subsection (b)(2)'';
in Note 4 (as so redesignated) by striking ``Subsection (b)(4)''
and inserting ``Subsection (b)(3)''; and by striking ``subsection
(b)(4)'' each place it appears and inserting ``subsection (b)(3)'';
and in Note 6 (as so redesignated) by striking ``Subsection
(b)(6)'' and inserting ``Subsection (b)(4)''; and by striking
``subsection (b)(6)'' both places it appears and inserting ``subsection
(b)(4)''.
Section 2D1.12(b) is amended by striking paragraph (4) as follows:
``(4) If the offense involved stealing anhydrous ammonia or
transporting stolen anhydrous ammonia, increase by 6 levels.''.
Section 2D1.14 is amended--
in subsection (a)(1) by striking ``Sec. 2D1.1(a)(5)(A), (a)(5)(B),
and (b)(18)'' and inserting ``Sec. 2D1.1(a)(5)(A), (a)(5)(B), and
(b)(17)'';
and by striking subsection (b) as follows:
``(b) Specific Offense Characteristic
(1) If Sec. 3A1.4 (Terrorism) does not apply, increase by 6
levels.''.
Section 2G3.2 is amended by striking subsection (b) as follows:
``(b) Specific Offense Characteristics
(1) If a person who received the telephonic communication was less
than eighteen years of age, or if a broadcast was made between six
o'clock in the morning and eleven o'clock at night, increase by 4
levels.
(2) If 6 plus the offense level from the table in Sec. 2B1.1
(Theft, Property Destruction, and Fraud) corresponding to the volume of
commerce attributable to the defendant is greater than the offense
level determined above, increase to that offense level.''.
The Commentary to Sec. 2G3.2 is amended by striking the Commentary
captioned ``Background'' in its entirety as follows:
``Background: Subsection (b)(1) provides an enhancement where an
obscene telephonic communication was received by a minor less than 18
years of age or where a broadcast was made during a time when such
minors were likely to receive it. Subsection (b)(2) provides an
enhancement for large-scale `dial-a-porn' or obscene broadcasting
operations that results in an offense level comparable to the offense
level for such operations under Sec. 2G3.1 (Importing, Mailing, or
Transporting Obscene Matter; Transferring Obscene Matter to a Minor).
The extent to which the obscene material was distributed is
approximated by the volume of commerce attributable to the
defendant.''.
Section 2H3.1(b) is amended--
in the heading by striking ``Characteristics'' and inserting
``Characteristic'';
and by striking paragraph (2) as follows:
``(2) (Apply the greater) If--
(A) the defendant is convicted under 18 U.S.C. 119, increase by 8
levels; or
(B) the defendant is convicted under 18 U.S.C. 119, and the offense
involved the use of a computer or an interactive computer service to
make restricted personal information about a covered person publicly
available, increase by 10 levels.''.
The Commentary to Sec. 2H3.1 captioned ``Application Notes'' is
amended by striking Notes 3 and 4 as follows:
``3. Inapplicability of Chapter Three (Adjustments).--If the
enhancement under subsection (b)(2) applies, do not apply Sec. 3A1.2
(Official Victim).
4. Definitions.--For purposes of this guideline:
`Computer' has the meaning given that term in 18 U.S.C. 1030(e)(1).
`Covered person' has the meaning given that term in 18 U.S.C.
119(b).
`Interactive computer service' has the meaning given that term in
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C.
230(f)(2)).
`Means of identification' has the meaning given that term in 18
U.S.C. 1028(d)(7), except that such means of identification shall be of
an actual (i.e., not fictitious) individual, other than the defendant
or a person for whose conduct the defendant is accountable under Sec.
1B1.3 (Relevant Conduct).
`Personal information' means sensitive or private information
involving an identifiable individual (including such information in the
possession of a third party), including (A) medical records; (B) wills;
(C) diaries; (D) private correspondence, including email; (E) financial
records; (F) photographs of a sensitive or private nature; or (G)
similar information.
`Restricted personal information' has the meaning given that term
in 18 U.S.C. 119(b).''.
Section 2J1.3(b) is amended--
[[Page 24090]]
in the heading by striking ``Characteristics'' and inserting
``Characteristic'';
by striking paragraph (1) as follows:
``(1) If the offense involved causing or threatening to cause
physical injury to a person, or property damage, in order to suborn
perjury, increase by 8 levels.'';
and by redesignating paragraph (2) as paragraph (1).
Section 2J1.6(b) is amended--
in the heading by striking ``Characteristics'' and inserting
``Characteristic'';
by striking paragraph (1) as follows:
``(1) If the base offense level is determined under subsection
(a)(1), and the defendant--
(A) voluntarily surrendered within 96 hours of the time he was
originally scheduled to report, decrease by 5 levels; or
(B) was ordered to report to a community corrections center,
community treatment center, `halfway house,' or similar facility, and
subdivision (A) above does not apply, decrease by 2 levels.
Provided, however, that this reduction shall not apply if the
defendant, while away from the facility, committed any federal, state,
or local offense punishable by a term of imprisonment of one year or
more.'';
and by redesignating paragraph (2) as paragraph (1).
Section 2J1.9 is amended by striking subsection (b) as follows:
``(b) Specific Offense Characteristic
(1) If the payment was made or offered for refusing to testify or
for the witness absenting himself to avoid testifying, increase by 4
levels.''.
Section 2K1.5(b) is amended by striking the following:
``If more than one applies, use the greatest:
(1) If the offense was committed willfully and without regard for
the safety of human life, or with reckless disregard for the safety of
human life, increase by 15 levels.
(2) If the defendant was prohibited by another federal law from
possessing the weapon or material, increase by 2 levels.
(3) If the defendant's possession of the weapon or material would
have been lawful but for 49 U.S.C. 46505 and he acted with mere
negligence, decrease by 3 levels.'';
and inserting the following:
``(1) (Apply the greater) If--
(A) the offense was committed willfully and without regard for the
safety of human life, or with reckless disregard for the safety of
human life, increase by 15 levels; or
(B) the defendant was prohibited by another federal law from
possessing the weapon or material, increase by 2 levels.''.
The Commentary to Sec. 2K1.5 captioned ``Background'' is amended
by striking ``A decrease is provided in a case of mere negligence where
the defendant was otherwise authorized to possess the weapon or
material.''.
Section 2K2.6 is amended by striking subsection (b) as follows:
``(b) Specific Offense Characteristic
(1) If the defendant used the body armor in connection with another
felony offense, increase by 4 levels.''.
The Commentary to Sec. 2K2.6 is amended by striking the Commentary
captioned ``Application Notes'' in its entirety as follows:
``Application Notes:
1. Application of Subsection (b)(1).--
(A) Meaning of `Defendant'.--Consistent with Sec. 1B1.3 (Relevant
Conduct), the term `defendant', for purposes of subsection (b)(1),
limits the accountability of the defendant to the defendant's own
conduct and conduct that the defendant aided or abetted, counseled,
commanded, induced, procured, or willfully caused.
(B) Meaning of `Felony Offense'.--For purposes of subsection
(b)(1), `felony offense' means any offense (federal, state, or local)
punishable by imprisonment for a term exceeding one year, regardless of
whether a criminal charge was brought, or a conviction obtained.
(C) Meaning of `Used'.--For purposes of subsection (b)(1), `used'
means the body armor was (i) actively employed in a manner to protect
the person from gunfire; or (ii) used as a means of bartering.
Subsection (b)(1) does not apply if the body armor was merely
possessed. For example, subsection (b)(1) would not apply if the body
armor was found in the trunk of a car but was not being actively used
as protection.
2. Inapplicability of Sec. 3B1.5.--If subsection (b)(1) applies,
do not apply the adjustment in Sec. 3B1.5 (Use of Body Armor in Drug
Trafficking Crimes and Crimes of Violence).
3. Grouping of Multiple Counts.--If subsection (b)(1) applies
(because the defendant used the body armor in connection with another
felony offense) and the instant offense of conviction includes a count
of conviction for that other felony offense, the counts of conviction
for the 18 U.S.C. 931 offense and that other felony offense shall be
grouped pursuant to subsection (c) of Sec. 3D1.2 (Groups of Closely
Related Counts).''.
Section 2M4.1 is amended by striking subsection (b) as follows:
``(b) Specific Offense Characteristic
(1) If the offense occurred at a time when persons were being
inducted for compulsory military service, increase by 6 levels.''.
Section 2P1.1(b) is amended by striking paragraph (4) as follows:
``(4) If the defendant was a law enforcement or correctional
officer or employee, or an employee of the Department of Justice, at
the time of the offense, increase by 2 levels.''.
The Commentary to 2P1.1 captioned ``Application Notes'' is
amended--
by striking Note 3 as follows:
``3. If the adjustment in subsection (b)(4) applies, no adjustment
is to be made under Sec. 3B1.3 (Abuse of Position of Trust or Use of
Special Skill).'';
and by redesignating Notes 4 and 5 as Notes 3 and 4, respectively.
Section 2Q1.2(b) is amended--
by striking paragraph (5) as follows:
``(5) If a recordkeeping offense reflected an effort to conceal a
substantive environmental offense, use the offense level for the
substantive offense.'';
and by redesignating paragraphs (6) and (7) as paragraphs (5) and
(6), respectively.
The Commentary to Sec. 2Q1.2 captioned ``Application Notes'' is
amended--
by striking Note 1 as follows:
``1. `Recordkeeping offense' includes both recordkeeping and
reporting offenses. The term is to be broadly construed as including
failure to report discharges, releases, or emissions where required;
the giving of false information; failure to file other required reports
or provide necessary information; and failure to prepare, maintain, or
provide records as prescribed.'';
and by redesignating Notes 2 through 7 as Notes 1 through 6,
respectively.
The Commentary to Sec. 2Q1.2 captioned ``Background'' is amended
by striking ``Sec. 2Q1.2(b)(6)'' and inserting ``Sec. 2Q1.2(b)(5)''.
Section 2Q1.3(b) is amended--
by striking paragraph (2) as follows:
``(2) If the offense resulted in a substantial likelihood of death
or serious bodily injury, increase by 11 levels.'';
by redesignating paragraphs (3) and (4) as paragraphs (2) and (3),
respectively;
and by striking paragraph (5) as follows:
``(5) If a recordkeeping offense reflected an effort to conceal a
substantive environmental offense, use the offense level for the
substantive offense.''.
The Commentary to Sec. 2Q1.3 captioned ``Application Notes'' is
amended--
by striking Note 1 as follows:
``1. `Recordkeeping offense' includes both recordkeeping and
reporting
[[Page 24091]]
offenses. The term is to be broadly construed as including failure to
report discharges, releases, or emissions where required; the giving of
false information; failure to file other required reports or provide
necessary information; and failure to prepare, maintain, or provide
records as prescribed.'';
by renumbering Notes 2 and 3 as Notes 1 and 2, respectively;
by striking Note 4 as follows:
``4. Subsection (b)(2) applies to offenses where the public health
is seriously endangered.'';
by redesignating Notes 5 and 6 as Notes 3 and 4, respectively;
in Note 3 (as so redesignated) by striking ``Subsection (b)(3)''
and inserting ``Subsection (b)(2)'';
and in Note 4 (as so redesignated) by striking ``Subsection
(b)(4)'' and inserting ``Subsection (b)(3)''.
Section 2Q1.4 is amended--
by striking subsection (b) as follows:
``(b) Specific Offense Characteristics
(1) If (A) any victim sustained permanent or life-threatening
bodily injury, increase by 4 levels; (B) any victim sustained serious
bodily injury, increase by 2 levels; or (C) the degree of injury is
between that specified in subdivisions (A) and (B), increase by 3
levels.
(2) If the offense resulted in (A) a substantial disruption of
public, governmental, or business functions or services; or (B) a
substantial expenditure of funds to clean up, decontaminate, or
otherwise respond to the offense, increase by 4 levels.
(3) If the offense resulted in an ongoing, continuous, or
repetitive release of a contaminant into a public water system or
lasted for a substantial period of time, increase by 2 levels.'';
by redesignating subsections (c) and (d) as subsections (b) and
(c), respectively;
and in subsection (c)(1) (as so redesignated) by striking ``the
death or permanent, life-threatening, or serious bodily injury of more
than one victim'' and inserting ``the death, permanent or life-
threatening bodily injury, or serious bodily injury of more than one
victim''.
The Commentary to Sec. 2Q1.4 captioned ``Application Notes'' is
amended in Note 2 by striking ``Subsection (d)'' and inserting
``Subsection (c)''; and by striking ``subsection (c)'' and inserting
``subsection (b)''.
Section 2T1.9 is amended in subsection (b)--
in the heading by striking ``Characteristics'' and inserting
``Characteristic'';
by striking the following:
``If more than one applies, use the greater:
(1) If the offense involved the planned or threatened use of
violence to impede, impair, obstruct, or defeat the ascertainment,
computation, assessment, or collection of revenue, increase by 4
levels.'';
and by redesignating paragraph (2) as paragraph (1).
The Commentary to Sec. 2T1.9 captioned ``Application Notes'' is
amended--
in Note 3 by striking ``Specific offense characteristics from Sec.
2T1.9(b) are to be applied'' and inserting ``Subsection (b)(1) is to be
applied'';
and in Note 4 by striking ``Subsection (b)(2)'' and inserting
``Subsection (b)(1)''.
The Commentary to Sec. 2T1.9 captioned ``Background'' is amended
by striking ``Additional specific offense characteristics are
included'' and inserting ``A specific offense characteristic is
included''.
The Commentary to Sec. 3B1.4 captioned ``Application Notes'' is
amended in Note 2 by striking ``Sec. 2D1.1(b)(16)(B)'' and inserting
``Sec. 2D1.1(b)(15)(B)''.
The Commentary to Sec. 3B1.5 captioned ``Application Notes'' is
amended by striking Note 3 as follows:
``3. Interaction with Sec. 2K2.6 and Other Counts of Conviction.--
If the defendant is convicted only of 18 U.S.C. 931 and receives an
enhancement under subsection (b)(1) of Sec. 2K2.6 (Possessing,
Purchasing, or Owning Body Armor by Violent Felons), do not apply an
adjustment under this guideline. However, if, in addition to the count
of conviction under 18 U.S.C. 931, the defendant (A) is convicted of an
offense that is a drug trafficking crime or a crime of violence; and
(B) used the body armor with respect to that offense, an adjustment
under this guideline shall apply with respect to that offense.''.
The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is
amended in Note 7 by striking ``Sec. 2D1.1(b)(16)(D)'' and inserting
``Sec. 2D1.1(b)(15)(D)''.
Reason for Amendment: This amendment continues the Commission's
multi-year efforts to simplify the Guidelines Manual. The initiative of
simplifying the Guidelines Manual has taken various forms over time.
Last year, as part of these efforts, the Commission revised the three-
step sentencing process to eliminate departures from the guidelines.
See USSG App. C, amend. 836 (effective Nov. 1, 2025). During this
amendment cycle, the Commission examined application rates for the 298
specific offense characteristics in Chapter Two to identify any
infrequently used provisions that could be eliminated as a good-
government measure.
This amendment deletes 26 specific offense characteristics that did
not apply at all in the last five fiscal years, some of which date back
to the original Guidelines Manual in 1987. These 26 specific offense
characteristics applied infrequently--if at all--even using a 25-year
lookback period. For some of these specific offense characteristics,
low usage mirrored low usage of the underlying guideline. For others,
the underlying guideline was applied a relatively large number of
times, but the specific offense characteristic applied infrequently.
The Commission is deleting these 26 specific offense
characteristics to streamline the Guidelines Manual in light of their
infrequent applicability.
2. Amendment: Section 2B1.1(b)(1) is amended by striking the
following:
``If the loss exceeded $6,500, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $6,500 or less..................... no increase.
(B) More than $6,500................... add 2.
(C) More than $15,000.................. add 4.
(D) More than $40,000.................. add 6.
(E) More than $95,000.................. add 8.
(F) More than $150,000................. add 10.
(G) More than $250,000................. add 12.
(H) More than $550,000................. add 14.
(I) More than $1,500,000............... add 16.
(J) More than $3,500,000............... add 18.
(K) More than $9,500,000............... add 20.
(L) More than $25,000,000.............. add 22.
(M) More than $65,000,000.............. add 24.
(N) More than $150,000,000............. add 26.
(O) More than $250,000,000............. add 28.
(P) More than $550,000,000............. add 30.'';
------------------------------------------------------------------------
and inserting the following:
``If the loss exceeded $9,000, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $9,000 or less..................... no increase.
(B) More than $9,000................... add 2.
(C) More than $20,000.................. add 4.
(D) More than $55,000.................. add 6.
(E) More than $150,000................. add 8.
(F) More than $200,000................. add 10.
(G) More than $350,000................. add 12.
(H) More than $750,000................. add 14.
(I) More than $2,000,000............... add 16.
(J) More than $5,000,000............... add 18.
(K) More than $15,000,000.............. add 20.
(L) More than $35,000,000.............. add 22.
(M) More than $90,000,000.............. add 24.
(N) More than $200,000,000............. add 26.
(O) More than $350,000,00.............. add 28.
(P) More than $750,000,000............. add 30.'';
------------------------------------------------------------------------
[[Page 24092]]
Section 2B1.4(b)(1) is amended by striking ``$6,500'' and inserting
``$9,000''.
Section 2B1.5(b)(1) is amended by striking ``If the value of the
cultural heritage resource or paleontological resource (A) exceeded
$2,500 but did not exceed $6,500, increase by 1 level; or (B) exceeded
$6,500, increase by the number of levels from the table in Sec. 2B1.1
(Theft, Property Destruction, and Fraud) corresponding to that amount''
and inserting ``If the value of the cultural heritage resource or
paleontological resource (A) exceeded $3,500 but did not exceed $9,000,
increase by 1 level; or (B) exceeded $9,000, increase by the number of
levels from the table in Sec. 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to that amount''.
Section 2B2.1(b)(2) is amended by striking the following:
``If the loss exceeded $5,000, increase the offense level as
follows:
and inserting the following:
``If the loss exceeded $9,000, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $5,000 or less..................... no increase.
(B) More than $5,000 add 1............. add 1.
(C) More than $20,000 add 2............ add 2.
(D) More than $95,000 add 3............ add 3.
(E) More than $500,000................. add 4.
(F) More than $1,500,000............... add 5.
(G) More than $3,000,000............... add 6.
(H) More than $5,000,000............... add 7.
(I) More than $9,500,000............... add 8.
add 30.''
------------------------------------------------------------------------
and inserting the following:
``If the loss exceeded $7,000, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $7,000 or less..................... no increase.
(B) More than $7,000................... add 1.
(C) More than $25,000.................. add 2.
(D) More than $150,000................. add 3.
(E) More than $700,000................. add 4.
(F) More than $2,000,000............... add 5.
(G) More than $4,000,000............... add 6.
(H) More than $7,000,000............... add 7.
(I) More than $15,000,000.............. add 8.
add 30.''
------------------------------------------------------------------------
Section 2B3.1(b)(7) is amended by striking the following:
``If the loss exceeded $20,000, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $20,000 or less.................... no increase.
(B) More than $20,000.................. add 1.
(C) More than $95,000.................. add 2.
(D) More than $500,000................. add 3.
(E) More than $1,500,000............... add 4.
(F) More than $3,000,000............... add 5.
(G) More than $5,000,000............... add 6.
(H) More than $9,500,000............... add 7.''
------------------------------------------------------------------------
and inserting the following:
``If the loss exceeded $25,000, increase the offense level as
follows:
------------------------------------------------------------------------
Loss (apply the greatest) Increase in level
------------------------------------------------------------------------
(A) $25,000 or less.................... no increase.
(B) More than $25,000.................. add 1.
(C) More than $150,000................. add 2.
(D) More than $700,000................. add 3.
(E) More than $2,000,000............... add 4.
(F) More than $4,000,000............... add 5.
(G) More than $7,000,000............... add 6.
(H) More than $15,000,000.............. add 7.''
------------------------------------------------------------------------
Section 2B3.2(b)(2) is amended by striking ``$20,000'' and
inserting ``$25,000''.
Section 2B3.3(b)(1) is amended by striking ``If the greater of the
amount obtained or demanded (A) exceeded $2,500 but did not exceed
$6,500, increase by 1 level; or (B) exceeded $6,500, increase by the
number of levels from the table in Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount'' and inserting
``If the greater of the amount obtained or demanded (A) exceeded $3,500
but did not exceed $9,000, increase by 1 level; or (B) exceeded $9,000,
increase by the number of levels from the table in Sec. 2B1.1 (Theft,
Property Destruction, and Fraud) corresponding to that amount''.
Section 2B4.1(b)(1) is amended by striking ``If the greater of the
value of the bribe or the improper benefit to be conferred (A) exceeded
$2,500 but did not exceed $6,500, increase by 1 level; or (B) exceeded
$6,500, increase by the number of levels from the table in Sec. 2B1.1
(Theft, Property Destruction, and Fraud) corresponding to that amount''
and inserting ``If the greater of the value of the bribe or the
improper benefit to be conferred (A) exceeded $3,500 but did not exceed
$9,000, increase by 1 level; or (B) exceeded $9,000, increase by the
number of levels from the table in Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount''.
Section 2B5.1(b)(1) is amended by striking ``If the face value of
the counterfeit items (A) exceeded $2,500 but did not exceed $6,500,
increase by 1 level; or (B) exceeded $6,500, increase by the number of
levels from the table in Sec. 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to that amount'' and inserting ``If the face value
of the counterfeit items (A) exceeded $3,500 but did not exceed $9,000,
increase by 1 level; or (B) exceeded $9,000, increase by the number of
levels from the table in Sec. 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to that amount''.
Section 2B5.3(b)(1) is amended by striking ``If the infringement
amount (A) exceeded $2,500 but did not exceed $6,500, increase by 1
level; or (B) exceeded $6,500, increase by the number of levels from
the table in Sec. 2B1.1 (Theft, Property Destruction, and Fraud)
corresponding to that amount'' and inserting ``If the infringement
amount (A) exceeded $3,500 but did not exceed $9,000, increase by 1
level; or (B) exceeded $9,000, increase by the number of levels from
the table in Sec. 2B1.1 (Theft, Property Destruction, and Fraud)
corresponding to that amount''.
Section 2B6.1(b)(1) is amended by striking ``If the retail value of
the motor vehicles or parts (A) exceeded $2,500 but did not exceed
$6,500, increase by 1 level; or (B) exceeded $6,500, increase by the
number of levels from the table in Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount'' and inserting
``If the retail value of the motor vehicles or parts (A) exceeded
$3,500 but did not exceed $9,000, increase by 1 level; or (B) exceeded
$9,000, increase by the number of levels from the table in Sec. 2B1.1
(Theft, Property Destruction, and Fraud) corresponding to that
amount''.
Section 2C1.1(b)(2) is amended by striking ``$6,500'' and inserting
``$9,000''.
Section 2C1.2(b)(2) is amended by striking ``$6,500'' and inserting
``$9,000''.
Section 2C1.8(b)(1) is amended by striking ``$6,500'' and inserting
``$9,000''.
Sectio n 2E5.1(b)(2) is amended by striking ``If the value of the
prohibited payment or the value of the improper benefit to the payer,
whichever is greater (A) exceeded $2,500 but did not exceed $6,500,
increase by 1 level; or (B) exceeded $6,500, increase by the number of
levels from the table in Sec. 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to that amount'' and inserting ``If the value of
the prohibited payment or the value of the improper benefit to the
payer, whichever is greater (A) exceeded $3,500 but did not exceed
$9,000, increase by 1 level; or (B) exceeded $9,000, increase by the
number of levels
[[Page 24093]]
from the table in Sec. 2B1.1 (Theft, Property Destruction, and Fraud)
corresponding to that amount''.
Section 2Q2.1(b)(3)(A) is amended by striking ``If the market value
of the fish, wildlife, or plants (i) exceeded $2,500 but did not exceed
$6,500, increase by 1 level; or (ii) exceeded $6,500, increase by the
number of levels from the table in Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount'' and inserting
``If the market value of the fish, wildlife, or plants (i) exceeded
$3,500 but did not exceed $9,000, increase by 1 level; or (ii) exceeded
$9,000, increase by the number of levels from the table in Sec. 2B1.1
(Theft, Property Destruction, and Fraud) corresponding to that
amount''.
Section 2R1.1(b)(2) is amended by striking the following:
``If the volume of commerce attributable to the defendant was more
than $1,000,000, adjust the offense level as follows:
------------------------------------------------------------------------
Volume of commerce (apply the greatest) Adjustment to offense level
------------------------------------------------------------------------
(A) More than $1,000,000............... add 2
(B) More than $10,000,000.............. add 4
(C) More than $50,000,000.............. add 6
(D) More than $100,000,000............. add 8
(E) More than $300,000,000............. add 10
(F) More than $600,000,000............. add 12
(G) More than $1,200,000,000........... add 14
(H) More than $1,850,000,000........... add 16.'';
------------------------------------------------------------------------
and inserting the following:
``If the volume of commerce attributable to the defendant was more
than $1,500,000, adjust the offense level as follows:
------------------------------------------------------------------------
Volume of commerce (apply the greatest) Adjustment to offense level
------------------------------------------------------------------------
(A) More than $1,500,000............... add 2
(B) More than $15,000,000.............. add 4
(C) More than $70,000,000.............. add 6
(D) More than $150,000,000............. add 8
(E) More than $400,000,000............. add 10
(F) More than $800,000,000............. add 12
(G) More than $1,650,000,000........... add 14
(H) More than $2,500,000,000........... add 16.''.
------------------------------------------------------------------------
Section 2T3.1(a) is amended--
in paragraph (1) by striking ``$1,500'' and inserting ``$2,000'';
in paragraph (2) by striking ``$200'' and inserting ``$300''; and
by striking ``$1,500'' and inserting ``$2,000'';
and in paragraph (3) by striking ``$200'' and inserting ``$300''.
Section 2T4.1 is amended by striking the following:
------------------------------------------------------------------------
``Tax loss (apply the greatest) Offense level
------------------------------------------------------------------------
(A) $2,500 or less..................... 6
(B) More than $2,500................... 8
(C) More than $6,500................... 10
(D) More than $15,000.................. 12
(E) More than $40,000.................. 14
(F) More than $100,000................. 16
(G) More than $250,000................. 18
(H) More than $550,000................. 20
(I) More than $1,500,000............... 22
(J) More than $3,500,000............... 24
(K) More than $9,500,000............... 26
(L) More than $25,000,000.............. 28
(M) More than $65,000,000.............. 30
(N) More than $150,000,000............. 32
(O) More than $250,000,000............. 34
(P) More than $550,000,000............. 36.'';
------------------------------------------------------------------------
and inserting the following:
------------------------------------------------------------------------
``Tax loss (apply the greatest) Offense level
------------------------------------------------------------------------
(A) $3,500 or less..................... 6
(B) More than $3,500................... 8
(C) More than $9,000................... 10
(D) More than $20,000.................. 12
(E) More than $55,000.................. 14
(F) More than $150,000................. 16
(G) More than $350,000................. 18
(H) More than $750,000................. 20
(I) More than $2,000,000............... 22
(J) More than $5,000,000............... 24
(K) More than $15,000,000.............. 26
(L) More than $35,000,000.............. 28
(M) More than $90,000,000.............. 30
(N) More than $200,000,000............. 32
(O) More than $350,000,000............. 34
(P) More than $750,000,000............. 36.'';
------------------------------------------------------------------------
Section 5E1.2 is amended--
in subsection (c)(3) by striking the following:
``Fine Table
------------------------------------------------------------------------
Offense level A Minimum B Maximum
------------------------------------------------------------------------
3 and below............................. $200 $9,500
4-5..................................... 500 9,500
6-7..................................... 1,000 9,500
8-9..................................... 2,000 20,000
10-11................................... 4,000 40,000
12-13................................... 5,500 55,000
14-15................................... 7,500 75,000
16-17................................... 10,000 95,000
18-19................................... 10,000 100,000
20-22................................... 15,000 150,000
23-25................................... 20,000 200,000
26-28................................... 25,000 250,000
29-31................................... 30,000 300,000
32-34................................... 35,000 350,000
35-37................................... 40,000 400,000
38 and above............................ 50,000 500,000.'';
------------------------------------------------------------------------
and inserting the following:
[[Page 24094]]
``Fine Table
------------------------------------------------------------------------
Offense level A Minimum B Maximum
------------------------------------------------------------------------
3 and below............................. $300 $15,000
4-5..................................... 700 15,000
6-7..................................... 1,500 15,000
8-9..................................... 2,500 25,000
10-11................................... 5,500 55,000
12-13................................... 7,500 75,000
14-15................................... 10,000 100,000
16-17................................... 15,000 150,000
18-19................................... 15,000 150,000
20-22................................... 20,000 200,000
23-25................................... 25,000 250,000
26-28................................... 35,000 350,000
29-31................................... 40,000 400,000
32-34................................... 50,000 500,000
35-37................................... 55,000 550,000
38 and above............................ 70,000 700,000.'';
------------------------------------------------------------------------
and in subsection (h)--
in the heading by striking ``Instruction'' and inserting
``Instructions'';
and by inserting at the end the following new paragraph (2):
``(2) For offenses committed on or after November 1, 2015 but prior
to November 1, 2026, use the applicable fine guideline range that was
set forth in the version of Sec. 5E1.2(c) that was in effect on
November 1, 2025, rather than the applicable fine guideline range set
forth in subsection (c) above.''.
Section 8C2.4 is amended--
in subsection (d) by striking the following:
------------------------------------------------------------------------
``Offense level Amount
------------------------------------------------------------------------
6 or less............................................ $8,500
7.................................................... 15,000
8.................................................... 15,000
9.................................................... 25,000
10................................................... 35,000
11................................................... 50,000
12................................................... 570,000
13................................................... 100,000
14................................................... 150,000
15................................................... 200,000
16................................................... 30,000
17................................................... 450,000
18................................................... 600,000
19................................................... 850,000
20................................................... 1,000,000
21................................................... 1,500,000
22................................................... 2,000,000
23................................................... 3,000,000
24................................................... 3,500,000
25................................................... 5,000,000
26................................................... 6,500,000
27................................................... 8,500,000
28................................................... 10,000,000
29................................................... 15,000,000
30................................................... 20,000,000
31................................................... 25,000,000
32................................................... 30,000,000
33................................................... 40,000,000
34................................................... 50,000,000
35................................................... 65,000,000
36................................................... 80,000,000
37................................................... 100,000,000
38 or more........................................... 150,000,000.'';
------------------------------------------------------------------------
and inserting the following:
------------------------------------------------------------------------
``Offense level Amount
------------------------------------------------------------------------
6 or less............................................ $10,000
7.................................................... 20,000
8.................................................... 20,000
9.................................................... 35,000
10................................................... 50,000
11................................................... 70,000
12................................................... 95,000
13................................................... 150,000
14................................................... 200,000
15................................................... 250,000
16................................................... 400,000
17................................................... 600,000
18................................................... 800,000
19................................................... 1,000,000
20................................................... 1,500,000
21................................................... 2,000,000
22................................................... 2,500,000
23................................................... 4,000,000
24................................................... 5,000,000
25................................................... 7,000,000
26................................................... 9,000,000
27................................................... 10,000,000
28................................................... 15,000,000
29................................................... 20,000,000
30................................................... 25,000,000
31................................................... 35,000,000
32................................................... 40,000,000
33................................................... 5,000,000
34................................................... 70,000,000
35................................................... 90,000,000
36................................................... 100,000,000
37................................................... 100,000,000
38 or more........................................... 150,000,000.'';
------------------------------------------------------------------------
and in subsection (e)--
in the heading by striking ``Instruction'' and inserting
``Instructions'';
and by inserting at the end the following new paragraph (2):
``(2) For offenses committed on or after November 1, 2015 but prior
to November 1, 2026, use the offense level fine table that was set
forth in the version of Sec. 8C2.4(d) that was in effect on November
1, 2025, rather than the offense level fine table set forth in
subsection (d) above.''.
Reason for Amendment: This amendment makes adjustments to the
monetary tables in Sec. Sec. 2B1.1 (Theft, Property, Destruction, and
Fraud), 2B2.1 (Burglary), 2B3.1 (Robbery), 2R1.1 (Bid-Rigging, Price-
Fixing or Market-Allocation Agreements Among Competitors), 2T4.1 (Tax
Table), 5E1.2 (Fines for Individual Defendants), and 8C2.4 (Base Fine)
to account for inflation. These provisions were last revised to account
for inflation in 2015. See USSG App. C, amend. 791 (effective Nov. 1,
2015). The amendment adjusts the monetary tables and values in the
guidelines using a specific multiplier derived from the Bureau of Labor
Statistics' Consumer Price Index and rounds, using a set of rules
extrapolated from the provisions for adjusting monetary penalties for
inflation set forth in section 5(a) of the Federal Civil Penalties
Inflation Adjustment Act of 1990. This is the same methodology the
Commission employed in 2015 and rounds the values using the following
approach:
<bullet> amounts greater than $100,000,000 to the nearest multiple
of $50,000,000;
<bullet> amounts greater than $10,000,000 to the nearest multiple
of $5,000,000;
<bullet> amounts greater than $1,000,000 to the nearest multiple of
$500,000;
<bullet> amounts greater than $100,000 to the nearest multiple of
$50,000;
<bullet> amounts greater than $10,000 to the nearest multiple of
$5,000;
<bullet> amounts greater than $1,000 to the nearest multiple of
$500; and
<bullet> amounts of $1,000 or less to the nearest multiple of $50.
[[Page 24095]]
The amendment adjusts for inflation the monetary value in specific
offense characteristics in other Chapter Two guidelines--Sec. Sec.
2B1.4, 2B1.5, 2B2.3, 2B3.2, 2B3.3, 2B4.1, 2B5.1, 2B5.3, 2B6.1, 2C1.1,
2C1.2, 2C1.8, 2E5.1, 2Q2.1, and 2T3.1--and includes conforming changes
to guidelines that refer to the monetary tables.
The amendment adjusts each table based on inflationary changes
since 2014 ($1.00 in 2014 = $1.36 in 2025), the year each monetary
table was last adjusted for inflation.
Congress has generally mandated that agencies in the executive
branch adjust the civil monetary penalties they impose to account for
inflation using the Bureau of Labor Statistics' Consumer Price Index.
See 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment
Act of 1990). Although the Commission's work does not involve civil
monetary penalties, the Commission does establish appropriate sentences
for categories of offenses and individuals convicted of federal crimes,
including appropriate amounts for criminal fines.
Due to inflationary changes, there has been a gradual decrease in
the value of the dollar over time. As a result, monetary losses in
current offenses reflect, to some degree, a lower degree of harm and
culpability than equivalent amounts when the monetary tables were last
substantively amended. Similarly, the fine levels recommended by the
guidelines are lower in value than when they were last adjusted, and
therefore, do not have the same sentencing impact as a similar fine in
the past. Based on its own analysis and on widespread support for
inflationary adjustments expressed in public comment, the Commission
concluded that aligning the above monetary tables with modern dollar
values is appropriate.
Finally, the amendment adds a special instruction to both
Sec. Sec. 5E1.2 and 8C2.4 providing that, for offenses committed on or
after November 1, 2015 but prior to November 1, 2026, courts should use
the applicable fine guideline range that was set forth in the version
of Sec. 5E1.2(c) that was in effect on November 1, 2025. This addition
extends the reasoning of the existing special instruction responding to
concerns previously expressed in public comment that changes to the
fine tables might create ex post facto problems. Such guidance is
similar to that provided in the commentary to Sec. 5E1.3 (Special
Assessment) relating to the amount of the special assessment to be
imposed in a given case.
3. Amendment: Section 2D1.1(b)(12), as redesignated by Amendment 1
of this document, is amended--
by striking ``fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue'' both places it
appears and inserting ``fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide), a fentanyl analogue, or a fentanyl-related
substance'';
and by inserting at the end the following new paragraph:
``Provided, however, that this enhancement shall only apply in a
case involving a fentanyl-related substance if the court applies the
offense level specified in the Drug Quantity Table for fentanyl (N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide), a fentanyl
analogue, or a fentanyl-related substance.''.
Section 2D1.1(c)(1) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> 9 KG or more of a Fentanyl-Related Substance;''.
Section 2D1.1(c)(2) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 3 KG but less than 9 KG of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(3) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 1 KG but less than 3 KG of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(4) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 300 G but less than 1 KG of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(5) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 100 G but less than 300 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(6) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 70 G but less than 100 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(7) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 40 G but less than 70 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(8) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 10 G but less than 40 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(9) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 8 G but less than 10 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(10) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 6 G but less than 8 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(11) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 4 G but less than 6 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(12) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 2 G but less than 4 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(13) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> At least 1 G but less than 2 G of a Fentanyl-Related
Substance;''.
Section 2D1.1(c)(14) is amended by inserting after the line
referenced to a Fentanyl Analogue the following line:
``<bullet> Less than 1 G of a Fentanyl-Related Substance;''.
The annotation to Sec. 2D1.1(c) captioned ``Notes to Drug Quantity
Table'' is amended--
by redesignating Note (K) as Note (L);
and by inserting after Note (J) the following new Note (K):
``(K) The term `Fentanyl-Related Substance' is defined in 21 U.S.C.
812(e). There is a rebuttable presumption that the base offense level
specified in the Drug Quantity Table applies to fentanyl-related
substances. However, if the defendant establishes either that the
fentanyl-related substance (i) functions to block, diminish, or
counteract the effect produced by fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue, or
(ii) is significantly less potent than fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide), the court should instead
determine the base offense level for the fentanyl-related substance
using the converted drug weight of the most closely related controlled
substance referenced in this guideline (as provided in Application Note
6 below).''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes,'' as
amended by Amendment 1 of this document, is further amended in Note
8(D), under the heading relating to Schedule I or II Opiates by
inserting after the line referenced to a Fentanyl Analogue the
following line:
``1 gm of a Fentanyl-Related Substance = 10 kg''.
The Commentary to Sec. 2D1.6 captioned ``Application Notes'' is
amended in Note 1 by striking ``fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide), or fentanyl analogue'' and
inserting ``fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
[[Page 24096]]
propanamide), fentanyl analogue, or fentanyl-related substance''.
Reason for Amendment: This amendment responds to the enactment of
the Halt All Lethal Trafficking of Fentanyl Act (Pub. L. 119-26) (2025)
(``HALT Fentanyl Act'' or ``Act''), which permanently scheduled
``fentanyl-related substances'' as Schedule I substances under 21
U.S.C. 812. The Act also expanded the offenses prohibited by 21 U.S.C.
841 and 960 to include ``fentanyl-related substances,'' setting the
quantities that trigger mandatory minimum penalties at the same level
as fentanyl analogues. The Act defined ``fentanyl-related substances''
in 21 U.S.C. 812(e).
This amendment amends the Drug Quantity Table at subsection (c) of
Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy) and the Drug Equivalency Tables at
Application Note 8(D) of the Commentary to Sec. 2D1.1 to add
``fentanyl-related substances.'' It sets the quantity thresholds and
base offense levels for fentanyl-related substances at the same level
as fentanyl analogues, to mirror the equivalencies between these
substances in the Act. This approach also is consistent with Commission
data showing that prior to the HALT Fentanyl Act, courts sentenced most
individuals convicted of offenses involving fentanyl-related substances
as if those offenses involved fentanyl analogues.
The amendment also adds a new Note to the Drug Quantity Table that
defines ``fentanyl-related substance'' by reference to the definition
in 21 U.S.C. 812(e), allowing for flexibility in case the statutory
definition is amended in the future. The new Note reiterates that the
base offense level specified in the Drug Quantity Table presumptively
applies to fentanyl-related substances. However, in light of the class-
based nature of the definition--which is based on chemical structure
alone--and the resulting breadth of substances that it currently covers
or could cover in the future, the Note also provides a safety valve by
which, under specified conditions, that presumption can be rebutted. If
a defendant establishes that the fentanyl-related substance either (i)
functions to block, diminish, or counteract the effect produced by
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or
a fentanyl analogue, or (ii) is significantly less potent than fentanyl
(N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide), the Note
instructs the court to instead determine the base offense level for the
fentanyl-related substance using the converted drug weight of the most
closely related controlled substance referenced in Sec. 2D1.1 (as
provided in Application Note 6).
To maintain consistency within Sec. 2D1.1, the amendment also adds
``fentanyl-related substance'' to the existing enhancement at Sec.
2D1.1(b)(13), which currently increases penalties for representing or
marketing fentanyl or a fentanyl analogue as another substance or as a
legitimately manufactured drug. As amended, the enhancement will also
apply if a fentanyl-related substance is represented or marketed as a
legitimately manufactured drug. Consistent with the new Note to the
Drug Quantity Table, the amendment includes a proviso that the
enhancement at subsection (b)(13) shall only apply in a case involving
a fentanyl-related substance if the court applies the offense level
specified in the Drug Quantity Table for fentanyl, a fentanyl analogue,
or a fentanyl-related substance.
Finally, this amendment makes a technical change to Application
Note 1 to Sec. 2D1.6 (Use of Communication Facility in Committing Drug
Offense; Attempt or Conspiracy) to include fentanyl-related substance
as one of the substances for which the Drug Quantity Table in Sec.
2D1.1 provides a minimum offense level of 12.
4. Amendment: Section 1B1.1(a)(4) is amended by striking ``Apply
Part D of Chapter Three to group the various counts and adjust the
offense level accordingly'' and inserting ``Apply Sec. 3D1.1
(Procedure for Determining Offense Level on Multiple Counts) to
determine the combined offense level applicable to all counts''.
The Commentary to Sec. 1B1.2 captioned ``Application Notes'' is
amended in Note 4 by striking ``if the object offenses specified in the
conspiracy count would be grouped together under Sec. 3D1.2(d) (e.g.,
a conspiracy to steal three government checks) it is not necessary to
engage in the foregoing analysis, because Sec. 1B1.3(a)(2) governs
consideration of the defendant's conduct'' and inserting ``if the
combined offense level for the object offenses specified in the
conspiracy count is determined pursuant to 3D1.1(a) (e.g., a conspiracy
to steal three government checks) it is not necessary to engage in the
foregoing analysis''.
Section 1B1.3 is amended--
in subsection (a)(2) by striking ``solely with respect to offenses
of a character for which Sec. 3D1.2(d) would require grouping of
multiple counts, all acts and omissions described in subdivisions
(1)(A) and (1)(B) above that were part of the same course of conduct or
common scheme or plan as the offense of conviction'' and inserting
``solely with respect to offenses described in subsection (d) below,
all acts and omissions described in paragraphs (1)(A) and (1)(B) above
that were part of the same course of conduct or common scheme or plan
as the offense of conviction'';
and by inserting at the end the following new subsection (d):
``(d) Offenses Covered by Subsection (a)(2).--Subsection (a)(2)
applies to offenses where the offense level is determined largely on
the basis of the total amount of harm or loss, the quantity of a
substance involved, or some other measure of aggregate harm, or where
the offense behavior is ongoing or continuous in nature and the offense
guideline is written to cover such behavior.
Subsection (a)(2) applies to offenses covered by the following
guidelines:
Sec. 2A3.5;
Sec. Sec. 2B1.1, 2B1.4, 2B1.5, 2B4.1, 2B5.1, 2B5.3, 2B6.1;
Sec. Sec. 2C1.1, 2C1.2, 2C1.8;
Sec. Sec. 2D1.1, 2D1.2, 2D1.5, 2D1.11, 2D1.13;
Sec. Sec. 2E4.1, 2E5.1;
Sec. Sec. 2G2.2, 2G3.1;
Sec. 2K2.1;
Sec. Sec. 2L1.1, 2L2.1;
Sec. 2N3.1;
Sec. 2Q2.1;
Sec. 2R1.1;
Sec. Sec. 2S1.1, 2S1.3;
Sec. Sec. 2T1.1, 2T1.4, 2T1.6, 2T1.7, 2T1.9, 2T2.1, 2T3.1.
Subsection (a)(2) does not apply to the offenses covered by the
following guidelines:
all offenses in Chapter Two, Part A (except Sec. 2A3.5);
Sec. Sec. 2B2.1, 2B2.3, 2B3.1, 2B3.2, 2B3.3;
Sec. 2C1.5;
Sec. Sec. 2D2.1, 2D2.2, 2D2.3;
Sec. Sec. 2E1.3, 2E1.4, 2E2.1;
Sec. Sec. 2G1.1, 2G1.3, 2G2.1;
Sec. Sec. 2H1.1, 2H2.1, 2H4.1;
Sec. Sec. 2L2.2, 2L2.5;
Sec. Sec. 2M2.1, 2M2.3, 2M3.1, 2M3.2, 2M3.3, 2M3.4, 2M3.5, 2M3.9;
Sec. Sec. 2P1.1, 2P1.2, 2P1.3;
Sec. 2X6.1.
For offenses covered by guidelines that are not listed, subsection
(a)(2) may or may not apply. In such instances, a case-by-case
determination must be made based upon the facts of the case and the
applicable guidelines (including specific offense characteristics and
other adjustments) used to determine the offense level.''.
The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is
amended--
[[Page 24097]]
in Note 5(A) by striking the following:
``Relationship to Grouping of Multiple Counts.--`Offenses of a
character for which Sec. 3D1.2(d) would require grouping of multiple
counts,' as used in subsection (a)(2), applies to offenses for which
grouping of counts would be required under Sec. 3D1.2(d) had the
defendant been convicted of multiple counts. Application of this
provision does not require the defendant, in fact, to have been
convicted of multiple counts. For example, where the defendant engaged
in three drug sales of 10, 15, and 20 grams of cocaine, as part of the
same course of conduct or common scheme or plan, subsection (a)(2)
provides that the total quantity of cocaine involved (45 grams) is to
be used to determine the offense level even if the defendant is
convicted of a single count charging only one of the sales. If the
defendant is convicted of multiple counts for the above noted sales,
the grouping rules of Chapter Three, Part D (Multiple Counts) provide
that the counts are grouped together. Although Chapter Three, Part D
(Multiple Counts) applies to multiple counts of conviction, it does not
limit the scope of subsection (a)(2). Subsection (a)(2) merely
incorporates by reference the types of offenses set forth in Sec.
3D1.2(d); thus, as discussed above, multiple counts of conviction are
not required for subsection (a)(2) to apply.
As noted above, subsection (a)(2) applies to offenses of a
character for which Sec. 3D1.2(d) would require grouping of multiple
counts, had the defendant been convicted of multiple counts. For
example, the defendant sells 30 grams of cocaine (a violation of 21
U.S.C. 841) on one occasion and, as part of the same course of conduct
or common scheme or plan, attempts to sell an additional 15 grams of
cocaine (a violation of 21 U.S.C. 846) on another occasion. The
defendant is convicted of one count charging the completed sale of 30
grams of cocaine. The two offenses (sale of cocaine and attempted sale
of cocaine), although covered by different statutory provisions, are of
a character for which Sec. 3D1.2(d) would require the grouping of
counts, had the defendant been convicted of both counts. Therefore,
subsection (a)(2) applies and the total amount of cocaine (45 grams)
involved is used to determine the offense level.'',
and inserting the following:
``In General.--Application of subsection (a)(2) does not require
the defendant, in fact, to have been convicted of multiple counts. For
example, where the defendant engaged in three drug sales of 10, 15, and
20 grams of cocaine, as part of the same course of conduct or common
scheme or plan, subsection (a)(2) provides that the total quantity of
cocaine involved (45 grams) is to be used to determine the offense
level even if the defendant is convicted of a single count charging
only one of the sales.
As noted in subsection (d), subsection (a)(2) applies to offenses
where the offense level is determined largely on the basis of the total
amount of harm or loss, the quantity of a substance involved, or some
other measure of aggregate harm, or where the offense behavior is
ongoing or continuous in nature and the offense guideline is written to
cover such behavior. For example, the defendant sells 30 grams of
cocaine (a violation of 21 U.S.C. 841) on one occasion and, as part of
the same course of conduct or common scheme or plan, attempts to sell
an additional 15 grams of cocaine (a violation of 21 U.S.C. 846) on
another occasion. The defendant is convicted of one count charging the
completed sale of 30 grams of cocaine. The two offenses (sale of
cocaine and attempted sale of cocaine), although violating different
statutory provisions, are covered by a guideline to which subsection
(a)(2) is applicable pursuant to subsection (d). Therefore, subsection
(a)(2) applies and the total amount of cocaine (45 grams) involved is
used to determine the offense level.'';
and by inserting at the end the following new Note 11:
``11. Application of Subsection (d).--Subsection (d) provides that
subsection (a)(2) covers most property crimes (except robbery,
burglary, extortion, and the like), drug offenses, firearms offenses,
and other crimes where the guidelines are based primarily on quantity
or contemplate continuing behavior. The list of instances in which
subsection (a)(2) should be applied is not exhaustive. Note, however,
that certain guidelines are specifically excluded from the operation of
subsection (a)(2).
Subsection (a)(2) applies to a conspiracy, attempt, or solicitation
to commit an offense if the offense that is the object of the
conspiracy, attempt, or solicitation is covered under subsection
(d).''.
The Commentary to Sec. 1B1.3 captioned ``Background'' is amended
by striking ``The distinction is made on the basis of Sec. 3D1.2(d),
which provides for grouping together (i.e., treating as a single count)
all counts charging offenses of a type covered by this subsection.
However, the applicability of subsection (a)(2) does not depend upon
whether multiple counts are alleged'' and inserting ``The distinction
is made on the basis of subsection (d)''; by striking ``(i.e., to which
Sec. 3D1.2(d) applies)''; and by striking ``Conversely, when Sec.
3D1.2(d) does not apply, so that convictions on multiple counts are
considered separately in determining the guideline sentencing range,
the guidelines prohibit aggregation of quantities from other counts in
order to prevent `double counting' of the conduct and harm from each
count of conviction. Continuing offenses present similar practical
problems. The reference to Sec. 3D1.2(d), which provides for grouping
of multiple counts arising out of a continuing offense when the offense
guideline takes the continuing nature into account, also prevents
double counting.''.
Section 1B1.5(c) is amended by striking ``Chapter Three
(Adjustments)'' and inserting ``Chapter Three, Parts A through D''.
The Commentary to Sec. 1B1.5 captioned ``Application Notes'' is
amended in Note 3 by striking ``(or group of closely related offenses
in the case of offenses that would be grouped together under Sec.
3D1.2(d))'' and inserting ``(or group of offenses to which Sec.
3D1.1(a) applies)''.
The Commentary to Sec. 1B1.11 captioned ``Background'' is amended
by striking ``whether the offenses of conviction are the type in which
the conduct is grouped under Sec. 3D1.2(d)'' and inserting ``whether
the offenses of conviction are the type to which Sec. 3D1.1(a)
applies''; and by striking ``(see Sec. Sec. 3D1.1-3D1.5, 5G1.2)'' and
inserting ``(see Sec. Sec. 3D1.1, 5G1.2)''.
Section 2A1.4(b)(1) is amended by striking ``Chapter Three, Part D
(Multiple Counts)'' and inserting ``subsection (b) of Sec. 3D1.1
(Procedure for Determining Offense Level on Multiple Counts)''.
The Commentary to Sec. 2A6.1 captioned ``Application Notes'' is
amended in Note 3 by striking the following:
``Grouping.--For purposes of Chapter Three, Part D (Multiple
Counts), multiple counts involving making a threatening or harassing
communication to the same victim are grouped together under Sec. 3D1.2
(Groups of Closely Related Counts). Multiple counts involving different
victims are not to be grouped under Sec. 3D1.2.'';
and inserting the following:
``Multiple Counts.--For purposes of Chapter Three, Part D (Multiple
Counts), do not apply subsection (b) of Sec. 3D1.1 (Procedure for
Determining Offense Level on Multiple Counts) to multiple counts
involving making a threatening or harassing communication to the same
victim, even if those acts occurred on separate occasions. Multiple
acts of making a threatening or harassing communication to the same
victim are already taken into account in the
[[Page 24098]]
specific offense characteristics of this guideline.''.
The Commentary to Sec. 2A6.2 captioned ``Application Notes'' is
amended in Note 4 by striking the following:
``For purposes of Chapter Three, Part D (Multiple Counts), multiple
counts involving stalking, threatening, or harassing the same victim
are grouped together (and with counts of other offenses involving the
same victim that are covered by this guideline) under Sec. 3D1.2
(Groups of Closely Related Counts). For example, if the defendant is
convicted of two counts of stalking the defendant's ex-spouse under 18
U.S.C. 2261A and one count of interstate domestic violence involving an
assault of the ex-spouse under 18 U.S.C. 2261, the stalking counts
would be grouped together with the interstate domestic violence count.
This grouping procedure avoids unwarranted `double counting' with the
enhancement in subsection (b)(1)(E) (for multiple acts of stalking,
threatening, harassing, or assaulting the same victim) and recognizes
that the stalking and interstate domestic violence counts are
sufficiently related to warrant grouping.
Multiple counts that are cross referenced to another offense
guideline pursuant to subsection (c) are to be grouped together if
Sec. 3D1.2 (Groups of Closely Related Counts) would require grouping
of those counts under that offense guideline. Similarly, multiple
counts cross referenced pursuant to subsection (c) are not to be
grouped together if Sec. 3D1.2 would preclude grouping of the counts
under that offense guideline. For example, if the defendant is
convicted of multiple counts of threatening an ex-spouse in violation
of a court protection order under 18 U.S.C. 2262 and the counts are
cross referenced to Sec. 2A6.1 (Threatening or Harassing
Communications), the counts would group together because Application
Note 3 of Sec. 2A6.1 specifically requires grouping. In contrast, if
the defendant is convicted of multiple counts of assaulting the ex-
spouse in violation of a court protection order under 18 U.S.C. 2262
and the counts are cross referenced to Sec. 2A2.2 (Aggravated
Assault), the counts probably would not group together inasmuch as
Sec. 3D1.2(d) specifically precludes grouping of counts covered by
Sec. 2A2.2 and no other provision of Sec. 3D1.2 would likely apply to
require grouping.
Multiple counts involving different victims are not to be grouped
under Sec. 3D1.2 (Groups of Closely Related Counts).'';
and inserting the following:
``For purposes of Chapter Three, Part D (Multiple Counts), do not
apply subsection (b) of Sec. 3D1.1 (Procedure for Determining Offense
Level on Multiple Counts) to multiple counts involving stalking,
threatening, or harassing the same victim, even if those acts occurred
on separate occasions. Multiple acts of stalking, threatening,
harassing, or assaulting the same victim are already taken into account
in the specific offense characteristics of this guideline. For example,
if the defendant is convicted of two counts of stalking the defendant's
ex-spouse under 18 U.S.C. 2261A and one count of interstate domestic
violence involving an assault of the ex-spouse under 18 U.S.C. 2261,
Sec. 3D1.1(b) does not apply to the stalking counts.
Determine the combined offense level for multiple counts that are
cross referenced to another offense guideline pursuant to subsection
(c) by applying Sec. 3D1.1.''.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 20 by striking ``See Chapter Three, Part D (Multiple
Counts)'' and inserting ``See subsection (a) of Sec. 3D1.1 (Procedure
for Determining Offense Level on Multiple Counts)''.
The Commentary to Sec. 2B1.5 captioned ``Application Notes,'' as
amended by Amendment 1 of this document, is further amended in Note 7,
as redesignated by Amendment 1 of this document, by striking ``For
purposes of Chapter Three, Part D (Multiple Counts), multiple counts
involving offenses covered by this guideline are grouped together under
subsection (d) of Sec. 3D1.2 (Groups of Closely Related Counts).
Multiple counts involving offenses covered by this guideline and
offenses covered by other guidelines are not to be grouped under Sec.
3D1.2(d)'' and inserting ``For purposes of Chapter Three, Part D
(Multiple Counts), apply subsection (a) of Sec. 3D1.1 (Procedure for
Determining Offense Level on Multiple Counts) to determine the combined
offense level for multiple counts involving offenses covered by this
guideline''.
The Commentary to Sec. 2D1.5 captioned ``Application Notes'' is
amended by striking Note 3 as follows:
``3. Multiple Counts.--Violations of 21 U.S.C. 848 will be grouped
with other drug offenses for the purpose of applying Chapter Three,
Part D (Multiple Counts).''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes,'' as
amended by Amendment 1 of this document, is further amended in Note 8,
as redesignated by Amendment 1 of this document, by striking
``Determine the offense level under each guideline separately'' and
inserting ``Determine the offense level under each guideline separately
as provided in subsection (c) of Sec. 3D1.1 (Procedure for Determining
Offense Level on Multiple Counts)''; and by striking ``Under the
grouping rules of Sec. 3D1.2(b), the counts will be grouped together''
and inserting ``Determine the combined offense level for these offenses
by applying subsection (d) of Sec. 3D1.1 (Procedure for Determining
Offense Level on Multiple Counts)''.
Section 2D2.3(b)(1) is amended by striking ``apply Chapter Three,
Part D (Multiple Counts)'' and inserting ``apply subsection (b) of
Sec. 3D1.1 (Procedure for Determining Offense Level on Multiple
Counts)''.
Section 2G1.1(d)(1) is amended by striking ``Chapter Three, Part D
(Multiple Counts)'' and inserting ``subsection (b) of Sec. 3D1.1
(Procedure for Determining Offense Level on Multiple Counts)''.
The Commentary to Sec. 2G1.1 captioned ``Application Notes'' is
amended in Note 5 by striking ``multiple counts involving more than one
victim are not to be grouped together under Sec. 3D1.2 (Groups of
Closely Related Counts)'' and inserting ``multiple counts involving
more than one victim are subject to the adjustment under subsection (b)
of Sec. 3D1.1 (Procedure for Determining Offense Level on Multiple
Counts)''.
Section 2G1.3(d)(1) is amended by striking ``Chapter Three, Part D
(Multiple Counts)'' and inserting ``subsection (b) of Sec. 3D1.1
(Procedure for Determining Offense Level on Multiple Counts)''.
The Commentary to Sec. 2G1.3 captioned ``Application Notes'' is
amended in Note 6 by striking ``multiple counts involving more than one
minor are not to be grouped together under Sec. 3D1.2 (Groups of
Closely Related Counts)'' and inserting ``multiple counts involving
more than one minor are subject to the adjustment under subsection (b)
of Sec. 3D1.1 (Procedure for Determining Offense Level on Multiple
Counts)''.
Section 2G2.1(d)(1) is amended by striking ``Chapter Three, Part D
(Multiple Counts)'' and inserting ``subsection (b) of Sec. 3D1.1
(Procedure for Determining Offense Level on Multiple Counts)''.
The Commentary to Sec. 2G2.1 captioned ``Application Notes'' is
amended in Note 7 by striking ``multiple counts involving the
exploitation of different minors are not to be grouped together under
Sec. 3D1.2 (Groups of Closely Related Counts)'' and inserting
``multiple counts involving the exploitation of different minors are
subject to the adjustment under subsection (b) of Sec. 3D1.1
(Procedure for
[[Page 24099]]
Determining Offense Level on Multiple Counts)''.
The Commentary to Sec. 2H4.1 captioned ``Application Notes'' is
amended in Note 2 by striking ``the most serious such offense (or group
of closely related offenses in the case of offenses that would be
grouped together under Sec. 3D1.2(d)) is to be used'' and inserting
``the most serious such offense (or group of offenses to which Sec.
3D1.1(a) applies) is to be used''.
The Commentary to Sec. 2J1.2 captioned ``Application Notes'' is
amended--
by striking Note 3 as follows:
``3. Convictions for the Underlying Offense.--In the event that the
defendant is convicted of an offense sentenced under this section as
well as for the underlying offense (i.e., the offense that is the
object of the obstruction), see the Commentary to Chapter Three, Part C
(Obstruction and Related Adjustments), and to Sec. 3D1.2(c) (Groups of
Closely Related Counts).''.
and by redesignating Note 4 as Note 3.
Section 2J1.3(d)(1) is amended by striking ``do not group the
counts together under Sec. 3D1.2 (Groups of Closely Related Counts)''
and inserting ``apply subsection (b) of Sec. 3D1.1 (Procedure for
Determining Offense Level on Multiple Counts) to the counts''.
The Commentary to Sec. 2J1.3 captioned ``Application Notes'' is
amended--
by striking Note 3 as follows:
``3. In the event that the defendant is convicted under this
section as well as for the underlying offense (i.e., the offense with
respect to which he committed perjury, subornation of perjury, or
witness bribery), see the Commentary to Sec. 3C1.1, and to Sec.
3D1.2(c) (Groups of Closely Related Counts).'';
and by redesignating Note 4 as Note 3.
The Commentary to Sec. 2J1.6 captioned ``Application Notes'' is
amended in Note 3 by striking the following:
``In the case of a failure to appear for service of sentence, any
term of imprisonment imposed on the failure to appear count is to be
imposed consecutively to any term of imprisonment imposed for the
underlying offense. See Sec. 5G1.3(a). The guideline range for the
failure to appear count is to be determined independently and the
grouping rules of Sec. Sec. 3D1.1-3D1.5 do not apply.
However, in the case of a conviction on both the underlying offense
and the failure to appear, other than a case of failure to appear for
service of sentence, the failure to appear is treated under Sec. 3C1.1
(Obstructing or Impeding the Administration of Justice) as an
obstruction of the underlying offense, and the failure to appear count
and the count or counts for the underlying offense are grouped together
under Sec. 3D1.2(c). (Note that 18 U.S.C. 3146(b)(2) does not require
a sentence of imprisonment on a failure to appear count, although if a
sentence of imprisonment on the failure to appear count is imposed, the
statute requires that the sentence be imposed to run consecutively to
any other sentence of imprisonment. Therefore, unlike a count in which
the statute mandates both a minimum and a consecutive sentence of
imprisonment, the grouping rules of Sec. Sec. 3D1.1-3D1.5 apply. See
Sec. 3D1.1(b)(1), comment. (n.1), and Sec. 3D1.2, comment. (n.1).)
The combined sentence will then be constructed to provide a `total
punishment' that satisfies the requirements both of Sec. 5G1.2
(Sentencing on Multiple Counts of Conviction) and 18 U.S.C. 3146(b)(2).
For example, if the combined applicable guideline range for both counts
is 30-37 months and the court determines that a `total punishment' of
36 months is appropriate, a sentence of 30 months for the underlying
offense plus a consecutive six months' sentence for the failure to
appear count would satisfy these requirements. (Note that the
combination of this instruction and increasing the offense level for
the obstructive, failure to appear conduct has the effect of ensuring
an incremental, consecutive punishment for the failure to appear count,
as required by 18 U.S.C. 3146(b)(2).)'';
and inserting the following:
``In the case of a failure to appear for service of sentence, any
term of imprisonment imposed on the failure to appear count is to be
imposed consecutively to any term of imprisonment imposed for the
underlying offense. See Sec. 5G1.3(a). The guideline range for the
failure to appear count is to be determined independently and Sec.
3D1.1 (Procedure for Determining Offense Level on Multiple Counts) does
not apply.
However, in the case of a conviction on both the underlying offense
and the failure to appear, other than a case of failure to appear for
service of sentence, the failure to appear is treated under Sec. 3C1.1
(Obstructing or Impeding the Administration of Justice) as an
obstruction of the underlying offense, and the combined offense level
for the failure to appear count and the count or counts for the
underlying offense is determined under Sec. 3D1.1. (Note that 18
U.S.C. 3146(b)(2) does not require a sentence of imprisonment on a
failure to appear count, although if a sentence of imprisonment on the
failure to appear count is imposed, the statute requires that the
sentence be imposed to run consecutively to any other sentence of
imprisonment. Therefore, unlike a count in which the statute mandates
both a minimum and a consecutive sentence of imprisonment, Sec. 3D1.1
applies. See Sec. 3D1.1(e)(1), comment. (n.1).) The combined sentence
will then be constructed to provide a `total punishment' that satisfies
the requirements both of Sec. 5G1.2 (Sentencing on Multiple Counts of
Conviction) and 18 U.S.C. 3146(b)(2). For example, if the combined
applicable guideline range for both counts is 30-37 months and the
court determines that a `total punishment' of 36 months is appropriate,
a sentence of 30 months for the underlying offense plus a consecutive
six months' sentence for the failure to appear count would satisfy
these requirements. (Note that the combination of this instruction and
increasing the offense level for the obstructive, failure to appear
conduct has the effect of ensuring an incremental, consecutive
punishment for the failure to appear count, as required by 18 U.S.C.
3146(b)(2).)''.
The Commentary to Sec. 2J1.9 captioned ``Application Notes'' is
amended--
in the caption by striking ``Notes'' and inserting ``Note'';
and by striking Note 2 as follows:
``2. In the event that the defendant is convicted under this
section as well as for the underlying offense (i.e., the offense with
respect to which the payment was made), see the Commentary to Sec.
3C1.1, and to Sec. 3D1.2(c) (Groups of Closely Related Counts).''.
The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is
amended in Note 4 by striking the following:
``Non-Applicability of Certain Enhancements.--
(A) In General.--If a sentence under this guideline is imposed in
conjunction with a sentence for an underlying offense, do not apply any
specific offense characteristic for possession, brandishing, use, or
discharge of an explosive or firearm when determining the sentence for
the underlying offense. A sentence under this guideline accounts for
any explosive or weapon enhancement for the underlying offense of
conviction, including any such enhancement that would apply based on
conduct for which the defendant is accountable under Sec. 1B1.3
(Relevant Conduct). Do not apply any weapon enhancement in the
guideline for the underlying offense, for example, if (A) a co-
defendant, as part of the jointly undertaken criminal activity,
possessed
[[Page 24100]]
a firearm different from the one for which the defendant was convicted
under 18 U.S.C. 924(c); or (B) in an ongoing drug trafficking offense,
the defendant possessed a firearm other than the one for which the
defendant was convicted under 18 U.S.C. 924(c). However, if a defendant
is convicted of two armed bank robberies, but is convicted under 18
U.S.C. 924(c) in connection with only one of the robberies, a weapon
enhancement would apply to the bank robbery which was not the basis for
the 18 U.S.C. 924(c) conviction.
A sentence under this guideline also accounts for conduct that
would subject the defendant to an enhancement under Sec. 2D1.1(b)(2)
(pertaining to use of violence, credible threat to use violence, or
directing the use of violence). Do not apply that enhancement when
determining the sentence for the underlying offense.
If the explosive or weapon that was possessed, brandished, used, or
discharged in the course of the underlying offense also results in a
conviction that would subject the defendant to an enhancement under
Sec. 2K1.3(b)(3) (pertaining to possession of explosive material in
connection with another felony offense) or Sec. 2K2.1(b)(7)(B)
(pertaining to possession of any firearm or ammunition in connection
with another felony offense), do not apply that enhancement. A sentence
under this guideline accounts for the conduct covered by these
enhancements because of the relatedness of that conduct to the conduct
that forms the basis for the conviction under 18 U.S.C. 844(h), Sec.
924(c) or Sec. 929(a). For example, if in addition to a conviction for
an underlying offense of armed bank robbery, the defendant was
convicted of being a felon in possession under 18 U.S.C. 922(g), the
enhancement under Sec. 2K2.1(b)(7)(B) would not apply.
(B) Impact on Grouping.--If two or more counts would otherwise
group under subsection (c) of Sec. 3D1.2 (Groups of Closely Related
Counts), the counts are to be grouped together under Sec. 3D1.2(c)
despite the non-applicability of certain enhancements under Application
Note 4(A). Thus, for example, in a case in which the defendant is
convicted of a felon-in-possession count under 18 U.S.C. 922(g) and a
drug trafficking count underlying a conviction under 18 U.S.C. 924(c),
the counts shall be grouped pursuant to Sec. 3D1.2(c). The applicable
Chapter Two guidelines for the felon-in-possession count and the drug
trafficking count each include `conduct that is treated as a specific
offense characteristic' in the other count, but the otherwise
applicable enhancements did not apply due to the rules in Sec. 2K2.4
related to 18 U.S.C. 924(c) convictions.'';
and inserting the following:
``Non-Applicability of Certain Enhancements.--If a sentence under
this guideline is imposed in conjunction with a sentence for an
underlying offense, do not apply any specific offense characteristic
for possession, brandishing, use, or discharge of an explosive or
firearm when determining the sentence for the underlying offense. A
sentence under this guideline accounts for any explosive or weapon
enhancement for the underlying offense of conviction, including any
such enhancement that would apply based on conduct for which the
defendant is accountable under Sec. 1B1.3 (Relevant Conduct). Do not
apply any weapon enhancement in the guideline for the underlying
offense, for example, if (A) a co-defendant, as part of the jointly
undertaken criminal activity, possessed a firearm different from the
one for which the defendant was convicted under 18 U.S.C. 924(c); or
(B) in an ongoing drug trafficking offense, the defendant possessed a
firearm other than the one for which the defendant was convicted under
18 U.S.C. 924(c). However, if a defendant is convicted of two armed
bank robberies, but is convicted under 18 U.S.C. 924(c) in connection
with only one of the robberies, a weapon enhancement would apply to the
bank robbery which was not the basis for the 18 U.S.C. 924(c)
conviction.
A sentence under this guideline also accounts for conduct that
would subject the defendant to an enhancement under Sec. 2D1.1(b)(2)
(pertaining to use of violence, credible threat to use violence, or
directing the use of violence). Do not apply that enhancement when
determining the sentence for the underlying offense.
If the explosive or weapon that was possessed, brandished, used, or
discharged in the course of the underlying offense also results in a
conviction that would subject the defendant to an enhancement under
Sec. 2K1.3(b)(3) (pertaining to possession of explosive material in
connection with another felony offense) or Sec. 2K2.1(b)(7)(B)
(pertaining to possession of any firearm or ammunition in connection
with another felony offense), do not apply that enhancement. A sentence
under this guideline accounts for the conduct covered by these
enhancements because of the relatedness of that conduct to the conduct
that forms the basis for the conviction under 18 U.S.C. 844(h), Sec.
924(c) or Sec. 929(a). For example, if in addition to a conviction for
an underlying offense of armed bank robbery, the defendant was
convicted of being a felon in possession under 18 U.S.C. 922(g), the
enhancement under Sec. 2K2.1(b)(7)(B) would not apply.''.
The Commentary to Sec. 2L2.2 captioned ``Application Notes'' is
amended by striking Note 5 as follows:
``5. Multiple Counts.--For the purposes of Chapter Three, Part D
(Multiple Counts), a count of conviction for unlawfully entering or
remaining in the United States covered by Sec. 2L1.2 (Unlawfully
Entering or Remaining in the United States) arising from the same
course of conduct as the count of conviction covered by this guideline
shall be considered a closely related count to the count of conviction
covered by this guideline, and therefore is to be grouped with the
count of conviction covered by this guideline.''.
Section 2M6.1(d)(1) is amended by striking ``Chapter Three, Part D
(Multiple Counts)'' and inserting ``subsection (b) of Sec. 3D1.1
(Procedure for Determining Offense Level on Multiple Counts)''.
Section 2N1.1(d)(1) is amended by striking ``Chapter Three, Part D
(Multiple Counts)'' and inserting ``subsection (b) of Sec. 3D1.1
(Procedure for Determining Offense Level on Multiple Counts)''.
The Commentary to Sec. 2P1.2 captioned ``Application Notes'' is
amended in Note 3 by striking ``group the offenses together under Sec.
3D1.2(c)'' and inserting ``determine the combined offense level for the
offenses under Sec. 3D1.1 (Procedure for Determining Offense Level on
Multiple Counts)''; and by striking ``the grouping rules of Sec. Sec.
3D1.1-3D1.5 apply. See Sec. 3D1.1(b)(1), comment. (n.1), and Sec.
3D1.2, comment. (n.1)'' and inserting ``Sec. 3D1.1 will apply. See
Sec. 3D1.1(e)(1), comment. (n.1)''.
Section 2Q1.4(c)(1), as redesignated and amended by Amendment 1 of
this document, is further amended by striking ``Chapter Three, Part D
(Multiple Counts)'' and inserting ``subsection (b) of Sec. 3D1.1
(Procedure for Determining Offense Level on Multiple Counts)''.
The Commentary to Sec. 2S1.1 captioned ``Application Notes'' is
amended by striking Note 6 as follows:
``6. Grouping of Multiple Counts.--In a case in which the defendant
is convicted of a count of laundering funds and a count for the
underlying offense from which the laundered funds were derived, the
counts shall be grouped pursuant to subsection (c) of Sec. 3D1.2
(Groups of Closely-Related Counts).''.
[[Page 24101]]
The Commentary to Sec. 2X1.1 captioned ``Application Notes'' is
amended in Note 4 by striking ``(or group of closely related multiple
counts)'' and inserting ``(or the offense level for the group of counts
determined under subsection (a) of Sec. 3D1.1 (Procedure for
Determining Offense Level on Multiple Counts))''; and by striking ``In
the case of multiple counts that are not closely related counts'' and
inserting ``In the case of multiple counts to which Sec. 3D1.1(a) does
not apply''.
The Commentary to Sec. 2X6.1 captioned ``Application Notes'' is
amended in Note 3 by striking the following:
``Multiple Counts.--
(A) In a case in which the defendant is convicted under both 18
U.S.C. 25 and the underlying crime of violence, the counts shall be
grouped pursuant to subsection (a) of Sec. 3D1.2 (Groups of Closely
Related Counts).
(B) Multiple counts involving the use of a minor in a crime of
violence shall not be grouped under Sec. 3D1.2.'';
and inserting the following:
``Multiple Counts.--In a case in which the defendant is convicted
of multiple counts involving the use of a minor in a crime of violence,
apply subsection (b) of Sec. 3D1.1 (Procedure for Determining Offense
Level on Multiple Counts) to the counts.''.
The Commentary to Sec. 3C1.1 captioned ``Application Notes,'' as
amended by Amendment 1 of this document, is further amended--
by striking Note 8 as follows:
``8. Grouping Under Sec. 3D1.2(c).--If the defendant is convicted
both of an obstruction offense (e.g., 18 U.S.C. 3146 (Penalty for
failure to appear); 18 U.S.C. 1621 (Perjury generally)) and an
underlying offense (the offense with respect to which the obstructive
conduct occurred), the count for the obstruction offense will be
grouped with the count for the underlying offense under subsection (c)
of Sec. 3D1.2 (Groups of Closely Related Counts). The offense level
for that group of closely related counts will be the offense level for
the underlying offense increased by the 2-level adjustment specified by
this section, or the offense level for the obstruction offense,
whichever is greater.'';
and by redesignating Note 9 as Note 8.
Chapter Three, Part D is amended--
by striking in their entirety the Introductory Commentary,
Sec. Sec. 3D1.1 through 3D1.5, and the Concluding Commentary to Part D
of Chapter Three as follows:
'' Introductory Commentary
This part provides rules for determining a single offense level
that encompasses all the counts of which the defendant is convicted.
These rules apply to multiple counts of conviction (A) contained in the
same indictment or information; or (B) contained in different
indictments or informations for which sentences are to be imposed at
the same time or in a consolidated proceeding. The single, `combined'
offense level that results from applying these rules is used, after
adjustment pursuant to the guidelines in subsequent parts, to determine
the sentence. These rules have been designed primarily with the more
commonly prosecuted federal offenses in mind.
The rules in this part seek to provide incremental punishment for
significant additional criminal conduct. The most serious offense is
used as a starting point. The other counts determine how much to
increase the offense level. The amount of the additional punishment
declines as the number of additional offenses increases.
Some offenses that may be charged in multiple-count indictments are
so closely intertwined with other offenses that conviction for them
ordinarily would not warrant increasing the guideline range. For
example, embezzling money from a bank and falsifying the related
records, although legally distinct offenses, represent essentially the
same type of wrongful conduct with the same ultimate harm, so that it
would be more appropriate to treat them as a single offense for
purposes of sentencing. Other offenses, such as an assault causing
bodily injury to a teller during a bank robbery, are so closely related
to the more serious offense that it would be appropriate to treat them
as part of the more serious offense, leaving the sentence enhancement
to result from application of a specific offense characteristic.
In order to limit the significance of the formal charging decision
and to prevent multiple punishment for substantially identical offense
conduct, this part provides rules for grouping offenses together.
Convictions on multiple counts do not result in a sentence enhancement
unless they represent additional conduct that is not otherwise
accounted for by the guidelines. In essence, counts that are grouped
together are treated as constituting a single offense for purposes of
the guidelines.
Some offense guidelines, such as those for theft, fraud and drug
offenses, contain provisions that deal with repetitive or ongoing
behavior. Other guidelines, such as those for assault and robbery, are
oriented more toward single episodes of criminal behavior. Accordingly,
different rules are required for dealing with multiple-count
convictions involving these two different general classes of offenses.
More complex cases involving different types of offenses may require
application of one rule to some of the counts and another rule to other
counts.
Some offenses, e.g., racketeering and conspiracy, may be
`composite' in that they involve a pattern of conduct or scheme
involving multiple underlying offenses. The rules in this part are to
be used to determine the offense level for such composite offenses from
the offense level for the underlying offenses.
Essentially, the rules in this part can be summarized as follows:
(1) If the offense guidelines in Chapter Two base the offense level
primarily on the amount of money or quantity of substance involved
(e.g., theft, fraud, drug trafficking, firearms dealing), or otherwise
contain provisions dealing with repetitive or ongoing misconduct (e.g.,
many environmental offenses), add the numerical quantities and apply
the pertinent offense guideline, including any specific offense
characteristics for the conduct taken as a whole. (2) When offenses are
closely interrelated, group them together for purposes of the multiple-
count rules, and use only the offense level for the most serious
offense in that group. (3) As to other offenses (e.g., independent
instances of assault or robbery), start with the offense level for the
most serious count and use the number and severity of additional counts
to determine the amount by which to increase that offense level.
Sec. 3D1.1. Procedure for Determining Offense Level on Multiple
Counts
(a) When a defendant has been convicted of more than one count, the
court shall:
(1) Group the counts resulting in conviction into distinct Groups
of Closely Related Counts (`Groups') by applying the rules specified in
Sec. 3D1.2.
(2) Determine the offense level applicable to each Group by
applying the rules specified in Sec. 3D1.3.
(3) Determine the combined offense level applicable to all Groups
taken together by applying the rules specified in Sec. 3D1.4.
(b) Exclude from the application of Sec. Sec. 3D1.2-3D1.5 the
following:
(1) Any count for which the statute (A) specifies a term of
imprisonment to be imposed; and (B) requires that such term of
imprisonment be imposed to run consecutively to any other term of
imprisonment. Sentences for such counts are governed by the provisions
of Sec. 5G1.2(a).
(2) Any count of conviction under 18 U.S.C. 1028A. See Application
Note
[[Page 24102]]
2(B) of the Commentary to Sec. 5G1.2 (Sentencing on Multiple Counts of
Conviction) for guidance on how sentences for multiple counts of
conviction under 18 U.S.C. 1028A should be imposed.
Commentary
Application Notes:
1. In General.--For purposes of sentencing multiple counts of
conviction, counts can be (A) contained in the same indictment or
information; or (B) contained in different indictments or informations
for which sentences are to be imposed at the same time or in a
consolidated proceeding.
2. Application of Subsection (b).--Subsection (b)(1) applies if a
statute (A) specifies a term of imprisonment to be imposed; and (B)
requires that such term of imprisonment be imposed to run consecutively
to any other term of imprisonment. See, e.g., 18 U.S.C. 924(c)
(requiring mandatory minimum terms of imprisonment, based on the
conduct involved, to run consecutively). The multiple count rules set
out under this part do not apply to a count of conviction covered by
subsection (b). However, a count covered by subsection (b)(1) may
affect the offense level determination for other counts. For example, a
defendant is convicted of one count of bank robbery (18 U.S.C. 2113),
and one count of use of a firearm in the commission of a crime of
violence (18 U.S.C. 924(c)). The two counts are not grouped together
pursuant to this guideline, and, to avoid unwarranted double counting,
the offense level for the bank robbery count under Sec. 2B3.1
(Robbery) is computed without application of the enhancement for weapon
possession or use as otherwise required by subsection (b)(2) of that
guideline. Pursuant to 18 U.S.C. 924(c), the mandatory minimum five-
year sentence on the weapon-use count runs consecutively to the
guideline sentence imposed on the bank robbery count. See Sec.
5G1.2(a).
Unless specifically instructed, subsection (b)(1) does not apply
when imposing a sentence under a statute that requires the imposition
of a consecutive term of imprisonment only if a term of imprisonment is
imposed (i.e., the statute does not otherwise require a term of
imprisonment to be imposed). See, e.g., 18 U.S.C. 3146 (Penalty for
failure to appear); 18 U.S.C. 924(a)(4) (regarding penalty for 18
U.S.C. 922(q) (possession or discharge of a firearm in a school zone));
18 U.S.C. 1791(c) (penalty for providing or possessing a controlled
substance in prison). Accordingly, the multiple count rules set out
under this part do apply to a count of conviction under this type of
statute.
Background: This section outlines the procedure to be used for
determining the combined offense level. After any adjustments from
Chapter Three, Parts E (Acceptance of Responsibility) and F (Early
Disposition Programs), and Chapter Four, Parts B (Career Offenders and
Criminal Livelihood) and C (Adjustment for Certain Zero-Point
Offenders) are made, this combined offense level is used to determine
the guideline sentence range. Chapter Five (Determining the Sentencing
Range and Options Under the Guidelines) discusses how to determine the
sentence from the (combined) offense level; Sec. 5G1.2 deals
specifically with determining the sentence of imprisonment when
convictions on multiple counts are involved. References in Chapter Five
(Determining the Sentencing Range and Options Under the Guidelines) to
the `offense level' should be treated as referring to the combined
offense level after all subsequent adjustments have been made.
Sec. 3D1.2. Groups of Closely Related Counts
All counts involving substantially the same harm shall be grouped
together into a single Group. Counts involve substantially the same
harm within the meaning of this rule:
(a) When counts involve the same victim and the same act or
transaction.
(b) When counts involve the same victim and two or more acts or
transactions connected by a common criminal objective or constituting
part of a common scheme or plan.
(c) When one of the counts embodies conduct that is treated as a
specific offense characteristic in, or other adjustment to, the
guideline applicable to another of the counts.
(d) When the offense level is determined largely on the basis of
the total amount of harm or loss, the quantity of a substance involved,
or some other measure of aggregate harm, or if the offense behavior is
ongoing or continuous in nature and the offense guideline is written to
cover such behavior.
Offenses covered by the following guidelines are to be grouped
under this subsection:
Sec. 2A3.5;
Sec. Sec. 2B1.1, 2B1.4, 2B1.5, 2B4.1, 2B5.1, 2B5.3, 2B6.1;
Sec. Sec. 2C1.1, 2C1.2, 2C1.8;
Sec. Sec. 2D1.1, 2D1.2, 2D1.5, 2D1.11, 2D1.13;
Sec. Sec. 2E4.1, 2E5.1;
Sec. Sec. 2G2.2, 2G3.1;
Sec. 2K2.1;
Sec. Sec. 2L1.1, 2L2.1;
Sec. 2N3.1;
Sec. 2Q2.1;
Sec. 2R1.1;
Sec. Sec. 2S1.1, 2S1.3;
Sec. Sec. 2T1.1, 2T1.4, 2T1.6, 2T1.7, 2T1.9, 2T2.1, 2T3.1.
Specifically excluded from the operation of this subsection are:
all offenses in Chapter Two, Part A (except Sec. 2A3.5);
Sec. Sec. 2B2.1, 2B2.3, 2B3.1, 2B3.2, 2B3.3;
Sec. 2C1.5;
Sec. Sec. 2D2.1, 2D2.2, 2D2.3;
Sec. Sec. 2E1.3, 2E1.4, 2E2.1;
Sec. Sec. 2G1.1, 2G1.3, 2G2.1;
Sec. Sec. 2H1.1, 2H2.1, 2H4.1;
Sec. Sec. 2L2.2, 2L2.5;
Sec. Sec. 2M2.1, 2M2.3, 2M3.1, 2M3.2, 2M3.3, 2M3.4, 2M3.5, 2M3.9;
Sec. Sec. 2P1.1, 2P1.2, 2P1.3;
Sec. 2X6.1.
For multiple counts of offenses that are not listed, grouping under
this subsection may or may not be appropriate; a case-by-case
determination must be made based upon the facts of the case and the
applicable guidelines (including specific offense characteristics and
other adjustments) used to determine the offense level.
Exclusion of an offense from grouping under this subsection does
not necessarily preclude grouping under another subsection.
Commentary
Application Notes:
1. Subsections (a)-(d) set forth circumstances in which counts are
to be grouped together into a single Group. Counts are to be grouped
together into a single Group if any one or more of the subsections
provide for such grouping. Counts for which the statute (A) specifies a
term of imprisonment to be imposed; and (B) requires that such term of
imprisonment be imposed to run consecutively to any other term of
imprisonment are excepted from application of the multiple count rules.
See Sec. 3D1.1(b)(1); id., comment. (n.1).
2. The term `victim' is not intended to include indirect or
secondary victims. Generally, there will be one person who is directly
and most seriously affected by the offense and is therefore
identifiable as the victim. For offenses in which there are no
identifiable victims (e.g., drug or immigration offenses, where society
at large is the victim), the `victim' for purposes of subsections (a)
and (b) is the societal interest that is harmed. In such cases, the
counts are grouped together when the societal interests that are harmed
are closely related. Where one count, for example, involves unlawfully
entering
[[Page 24103]]
the United States and the other involves possession of fraudulent
evidence of citizenship, the counts are grouped together because the
societal interests harmed (the interests protected by laws governing
immigration) are closely related. In contrast, where one count involves
the sale of controlled substances and the other involves an immigration
law violation, the counts are not grouped together because different
societal interests are harmed. Ambiguities should be resolved in
accordance with the purpose of this section as stated in the lead
paragraph, i.e., to identify and group `counts involving substantially
the same harm.'
3. Under subsection (a), counts are to be grouped together when
they represent essentially a single injury or are part of a single
criminal episode or transaction involving the same victim.
When one count charges an attempt to commit an offense and the
other charges the commission of that offense, or when one count charges
an offense based on a general prohibition and the other charges
violation of a specific prohibition encompassed in the general
prohibition, the counts will be grouped together under subsection (a).
Examples: (1) The defendant is convicted of forging and uttering
the same check. The counts are to be grouped together. (2) The
defendant is convicted of kidnapping and assaulting the victim during
the course of the kidnapping. The counts are to be grouped together.
(3) The defendant is convicted of bid rigging (an antitrust offense)
and of mail fraud for signing and mailing a false statement that the
bid was competitive. The counts are to be grouped together. (4) The
defendant is convicted of two counts of assault on a federal officer
for shooting at the same officer twice while attempting to prevent
apprehension as part of a single criminal episode. The counts are to be
grouped together. (5) The defendant is convicted of three counts of
unlawfully bringing aliens into the United States, all counts arising
out of a single incident. The three counts are to be grouped together.
But: (6) The defendant is convicted of two counts of assault on a
federal officer for shooting at the officer on two separate days. The
counts are not to be grouped together.
4. Subsection (b) provides that counts that are part of a single
course of conduct with a single criminal objective and represent
essentially one composite harm to the same victim are to be grouped
together, even if they constitute legally distinct offenses occurring
at different times. This provision does not authorize the grouping of
offenses that cannot be considered to represent essentially one
composite harm (e.g., robbery of the same victim on different occasions
involves multiple, separate instances of fear and risk of harm, not one
composite harm).
When one count charges a conspiracy or solicitation and the other
charges a substantive offense that was the sole object of the
conspiracy or solicitation, the counts will be grouped together under
subsection (b).
Examples: (1) The defendant is convicted of one count of conspiracy
to commit extortion and one count of extortion for the offense he
conspired to commit. The counts are to be grouped together. (2) The
defendant is convicted of two counts of mail fraud and one count of
wire fraud, each in furtherance of a single fraudulent scheme. The
counts are to be grouped together, even if the mailings and telephone
call occurred on different days. (3) The defendant is convicted of one
count of auto theft and one count of altering the vehicle
identification number of the car he stole. The counts are to be grouped
together. (4) The defendant is convicted of two counts of distributing
a controlled substance, each count involving a separate sale of 10
grams of cocaine that is part of a common scheme or plan. In addition,
a finding is made that there are two other sales, also part of the
common scheme or plan, each involving 10 grams of cocaine. The total
amount of all four sales (40 grams of cocaine) will be used to
determine the offense level for each count under Sec. 1B1.3(a)(2). The
two counts will then be grouped together under either this subsection
or subsection (d) to avoid double counting. But: (5) The defendant is
convicted of two counts of rape for raping the same person on different
days. The counts are not to be grouped together.
5. Subsection (c) provides that when conduct that represents a
separate count, e.g., bodily injury or obstruction of justice, is also
a specific offense characteristic in or other adjustment to another
count, the count represented by that conduct is to be grouped with the
count to which it constitutes an aggravating factor. This provision
prevents `double counting' of offense behavior. Of course, this rule
applies only if the offenses are closely related. It is not, for
example, the intent of this rule that (assuming they could be joined
together) a bank robbery on one occasion and an assault resulting in
bodily injury on another occasion be grouped together. The bodily
injury (the harm from the assault) would not be a specific offense
characteristic to the robbery and would represent a different harm. On
the other hand, use of a firearm in a bank robbery and unlawful
possession of that firearm are sufficiently related to warrant grouping
of counts under this subsection. Frequently, this provision will
overlap subsection (a), at least with respect to specific offense
characteristics. However, a count such as obstruction of justice, which
represents a Chapter Three adjustment and involves a different harm or
societal interest than the underlying offense, is covered by subsection
(c) even though it is not covered by subsection (a).
Sometimes there may be several counts, each of which could be
treated as an aggravating factor to another more serious count, but the
guideline for the more serious count provides an adjustment for only
one occurrence of that factor. In such cases, only the count
representing the most serious of those factors is to be grouped with
the other count. For example, if in a robbery of a credit union on a
military base the defendant is also convicted of assaulting two
employees, one of whom is injured seriously, the assault with serious
bodily injury would be grouped with the robbery count, while the
remaining assault conviction would be treated separately.
A cross reference to another offense guideline does not constitute
`a specific offense characteristic . . . or other adjustment' within
the meaning of subsection (c). For example, the guideline for bribery
of a public official contains a cross reference to the guideline for a
conspiracy to commit the offense that the bribe was to facilitate.
Nonetheless, if the defendant were convicted of one count of securities
fraud and one count of bribing a public official to facilitate the
fraud, the two counts would not be grouped together by virtue of the
cross reference. If, however, the bribe was given for the purpose of
hampering a criminal investigation into the offense, it would
constitute obstruction and under Sec. 3C1.1 would result in a 2-level
enhancement to the offense level for the fraud. Under the latter
circumstances, the counts would be grouped together.
6. Subsection (d) likely will be used with the greatest frequency.
It provides that most property crimes (except robbery, burglary,
extortion and the like), drug offenses, firearms offenses, and other
crimes where the guidelines are based primarily on quantity or
contemplate continuing behavior are to be grouped together. The list of
instances in which this subsection should be applied is not exhaustive.
Note, however, that certain guidelines are specifically excluded from
the operation of subsection (d).
[[Page 24104]]
A conspiracy, attempt, or solicitation to commit an offense is
covered under subsection (d) if the offense that is the object of the
conspiracy, attempt, or solicitation is covered under subsection (d).
Counts involving offenses to which different offense guidelines
apply are grouped together under subsection (d) if the offenses are of
the same general type and otherwise meet the criteria for grouping
under this subsection. In such cases, the offense guideline that
results in the highest offense level is used; see Sec. 3D1.3(b). The
`same general type' of offense is to be construed broadly.
Examples: (1) The defendant is convicted of five counts of
embezzling money from a bank. The five counts are to be grouped
together. (2) The defendant is convicted of two counts of theft of
social security checks and three counts of theft from the mail, each
from a different victim. All five counts are to be grouped together.
(3) The defendant is convicted of five counts of mail fraud and ten
counts of wire fraud. Although the counts arise from various schemes,
each involves a monetary objective. All fifteen counts are to be
grouped together. (4) The defendant is convicted of three counts of
unlicensed dealing in firearms. All three counts are to be grouped
together. (5) The defendant is convicted of one count of selling
heroin, one count of selling PCP, and one count of selling cocaine. The
counts are to be grouped together. The Commentary to Sec. 2D1.1
provides rules for combining (adding) quantities of different drugs to
determine a single combined offense level. (6) The defendant is
convicted of three counts of tax evasion. The counts are to be grouped
together. (7) The defendant is convicted of three counts of discharging
toxic substances from a single facility. The counts are to be grouped
together. (8) The defendant is convicted on two counts of check forgery
and one count of uttering the first of the forged checks. All three
counts are to be grouped together. Note, however, that the uttering
count is first grouped with the first forgery count under subsection
(a) of this guideline, so that the monetary amount of that check counts
only once when the rule in Sec. 3D1.3(b) is applied. But: (9) The
defendant is convicted of three counts of bank robbery. The counts are
not to be grouped together, nor are the amounts of money involved to be
added.
7. A single case may result in application of several of the rules
in this section. Thus, for example, example (8) in the discussion of
subsection (d) involves an application of Sec. 3D1.2(a) followed by an
application of Sec. 3D1.2(d). Note also that a Group may consist of a
single count; conversely, all counts may form a single Group.
8. A defendant may be convicted of conspiring to commit several
substantive offenses and also of committing one or more of the
substantive offenses. In such cases, treat the conspiracy count as if
it were several counts, each charging conspiracy to commit one of the
substantive offenses. See Sec. 1B1.2(d) and accompanying commentary.
Then apply the ordinary grouping rules to determine the combined
offense level based upon the substantive counts of which the defendant
is convicted and the various acts cited by the conspiracy count that
would constitute behavior of a substantive nature. Example: The
defendant is convicted of two counts: conspiring to commit offenses A,
B, and C, and committing offense A. Treat this as if the defendant was
convicted of (1) committing offense A; (2) conspiracy to commit offense
A; (3) conspiracy to commit offense B; and (4) conspiracy to commit
offense C. Count (1) and count (2) are grouped together under Sec.
3D1.2(b). Group the remaining counts, including the various acts cited
by the conspiracy count that would constitute behavior of a substantive
nature, according to the rules in this section.
Background: Ordinarily, the first step in determining the combined
offense level in a case involving multiple counts is to identify those
counts that are sufficiently related to be placed in the same Group of
Closely Related Counts (`Group'). This section specifies four
situations in which counts are to be grouped together. Although it
appears last for conceptual reasons, subsection (d) probably will be
used most frequently.
A primary consideration in this section is whether the offenses
involve different victims. For example, a defendant may stab three
prison guards in a single escape attempt. Some would argue that all
counts arising out of a single transaction or occurrence should be
grouped together even when there are distinct victims. Although such a
proposal was considered, it was rejected because, in many cases, it
would not adequately capture the scope and impact of the criminal
behavior. Cases involving injury to distinct victims are sufficiently
comparable, whether or not the injuries are inflicted in distinct
transactions, so that each such count should be treated separately
rather than grouped together. Counts involving different victims (or
societal harms in the case of `victimless' crimes) are grouped together
only as provided in subsection (c) or (d).
Even if counts involve a single victim, the decision as to whether
to group them together may not always be clear cut. For example, how
contemporaneous must two assaults on the same victim be in order to
warrant grouping together as constituting a single transaction or
occurrence? Existing case law may provide some guidance as to what
constitutes distinct offenses, but such decisions often turn on the
technical language of the statute and cannot be controlling. In
interpreting this part and resolving ambiguities, the court should look
to the underlying policy of this part as stated in the Introductory
Commentary.
Sec. 3D1.3. Offense Level Applicable to Each Group of Closely
Related Counts
Determine the offense level applicable to each of the Groups as
follows:
(a) In the case of counts grouped together pursuant to Sec.
3D1.2(a)-(c), the offense level applicable to a Group is the offense
level, determined in accordance with Chapter Two and Parts A, B, and C
of Chapter Three, for the most serious of the counts comprising the
Group, i.e., the highest offense level of the counts in the Group.
(b) In the case of counts grouped together pursuant to Sec.
3D1.2(d), the offense level applicable to a Group is the offense level
corresponding to the aggregated quantity, determined in accordance with
Chapter Two and Parts A, B and C of Chapter Three. When the counts
involve offenses of the same general type to which different guidelines
apply, apply the offense guideline that produces the highest offense
level.
Commentary
Application Notes:
1. The `offense level' for a count refers to the offense level from
Chapter Two after all adjustments from Parts A, B, and C of Chapter
Three.
2. When counts are grouped pursuant to Sec. 3D1.2(a)-(c), the
highest offense level of the counts in the group is used. Ordinarily,
it is necessary to determine the offense level for each of the counts
in a Group in order to ensure that the highest is correctly identified.
Sometimes, it will be clear that one count in the Group cannot have a
higher offense level than another, as with a count for an attempt or
conspiracy to commit the completed offense. The formal determination of
the offense level for such a count may be unnecessary.
3. When counts are grouped pursuant to Sec. 3D1.2(d), the offense
guideline applicable to the aggregate behavior is used. If the counts
in the Group are covered by different guidelines, use the
[[Page 24105]]
guideline that produces the highest offense level. Determine whether
the specific offense characteristics or adjustments from Chapter Three,
Parts A, B, and C apply based upon the combined offense behavior taken
as a whole. Note that guidelines for similar property offenses have
been coordinated to produce identical offense levels, at least when
substantial property losses are involved. However, when small sums are
involved the differing specific offense characteristics that require
increasing the offense level to a certain minimum may affect the
outcome.
Background: This section provides rules for determining the offense
level associated with each Group of Closely Related Counts. Summary
examples of the application of these rules are provided at the end of
the Commentary to this part.
Sec. 3D1.4. Determining the Combined Offense Level
The combined offense level is determined by taking the offense
level applicable to the Group with the highest offense level and
increasing that offense level by the amount indicated in the following
table:
------------------------------------------------------------------------
Number of units Increase in offense level
------------------------------------------------------------------------
1......................................... none.
1\1/2\.................................... add 1 level.
2......................................... add 2 levels.
2\1/2\-3.................................. add 3 levels.
3\1/2\-5.................................. add 4 levels.
More than 5............................... add 5 levels.
------------------------------------------------------------------------
In determining the number of Units for purposes of this section:
(a) Count as one Unit the Group with the highest offense level.
Count one additional Unit for each Group that is equally serious or
from 1 to 4 levels less serious.
(b) Count as one-half Unit any Group that is 5 to 8 levels less
serious than the Group with the highest offense level.
(c) Disregard any Group that is 9 or more levels less serious than
the Group with the highest offense level. Such Groups will not increase
the applicable offense level but may provide a reason for sentencing at
the higher end of the sentencing range for the applicable offense
level.
Commentary
Application Notes:
1. Application of the rules in Sec. Sec. 3D1.2 and 3D1.3 may
produce a single Group of Closely Related Counts. In such cases, the
combined offense level is the level corresponding to the Group
determined in accordance with Sec. 3D1.3.
2. The procedure for calculating the combined offense level when
there is more than one Group of Closely Related Counts is as follows:
First, identify the offense level applicable to the most serious Group;
assign it one Unit. Next, determine the number of Units that the
remaining Groups represent. Finally, increase the offense level for the
most serious Group by the number of levels indicated in the table
corresponding to the total number of Units.
Background: When Groups are of roughly comparable seriousness, each
Group will represent one Unit. When the most serious Group carries an
offense level substantially higher than that applicable to the other
Groups, however, counting the lesser Groups fully for purposes of the
table could add excessive punishment, possibly even more than those
offenses would carry if prosecuted separately. To avoid this anomalous
result and produce declining marginal punishment, Groups 9 or more
levels less serious than the most serious Group should not be counted
for purposes of the table, and that Groups 5 to 8 levels less serious
should be treated as equal to one-half of a Group. Thus, if the most
serious Group is at offense level 15 and if two other Groups are at
level 10, there would be a total of two Units for purposes of the table
(one plus one-half plus one-half) and the combined offense level would
be 17.
Sec. 3D1.5. Determining the Total Punishment
Use the combined offense level to determine the appropriate
sentence in accordance with the provisions of Chapter Five.
Commentary
This section refers the court to Chapter Five (Determining the
Sentencing Range and Options Under the Guidelines) in order to
determine the total punishment to be imposed based upon the combined
offense level. The combined offense level is subject to adjustments
from Chapter Three, Parts E (Acceptance of Responsibility) and F (Early
Disposition Programs), and Chapter Four, Parts B (Career Offenders and
Criminal Livelihood) and C (Adjustment for Certain Zero-Point
Offenders).
* * * * *
Concluding Commentary to Part D of Chapter Three
Illustrations of the Operation of the Multiple-Count Rules
The following examples, drawn from presentence reports in the
Commission's files, illustrate the operation of the guidelines for
multiple counts. The examples are discussed summarily; a more thorough,
step-by-step approach is recommended until the user is thoroughly
familiar with the guidelines.
1. Defendant A was convicted of four counts, each charging robbery
of a different bank. Each would represent a distinct Group. Sec.
3D1.2. In each of the first three robberies, the offense level was 22
(20 plus a 2-level increase because a financial institution was robbed)
(Sec. 2B3.1(b)). In the fourth robbery $21,000 was taken and a firearm
was displayed; the offense level was therefore 28. As the first three
counts are 6 levels lower than the fourth, each of the first three
represents one-half unit for purposes of Sec. 3D1.4. Altogether there
are 2 \1/2\ Units, and the offense level for the most serious (28) is
therefore increased by 3 levels under the table. The combined offense
level is 31.
2. Defendant B was convicted of four counts: (1) distribution of
230 grams of cocaine; (2) distribution of 150 grams of cocaine; (3)
distribution of 75 grams of heroin; (4) offering a DEA agent $20,000 to
avoid prosecution. The combined offense level for drug offenses is
determined by the total quantity of drugs, converted to converted drug
weight (using the Drug Conversion Tables in the Commentary to Sec.
2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking)).
The first count translates into 46 kilograms of converted drug weight;
the second count translates into 30 kilograms of converted drug weight;
and the third count translates into 75 kilograms of converted drug
weight. The total is 151 kilograms of converted drug weight. Under
Sec. 2D1.1, the combined offense level for the drug offenses is 24. In
addition, because of the attempted bribe of the DEA agent, this offense
level is increased by 2 levels to 26 under Sec. 3C1.1 (Obstructing or
Impeding the Administration of Justice). Because the conduct
constituting the bribery offense is accounted for by Sec. 3C1.1, it
becomes part of the same Group as the drug offenses pursuant to Sec.
3D1.2(c). The combined offense level is 26 pursuant to Sec. 3D1.3(a),
because the offense level for bribery (20) is less than the offense
level for the drug offenses (26).
3. Defendant C was convicted of four counts arising out of a scheme
pursuant to which the defendant received kickbacks from subcontractors.
The counts were as follows: (1) The defendant received $1,000 from
subcontractor A relating to contract X (Mail Fraud). (2) The defendant
received $1,000 from subcontractor A relating to contract X (Commercial
Bribery). (3) The defendant received $1,000 from subcontractor A
relating to contract Y (Mail Fraud). (4) The defendant received $1,000
from subcontractor B relating to
[[Page 24106]]
contract Z (Commercial Bribery). The mail fraud counts are covered by
Sec. 2B1.1 (Theft, Property Destruction, and Fraud). The bribery
counts are covered by Sec. 2B4.1 (Bribery in Procurement of Bank Loan
and Other Commercial Bribery), which treats the offense as a
sophisticated fraud. The total money involved is $4,000, which results
in an offense level of 9 under either Sec. 2B1.1 (assuming the
application of the `sophisticated means' enhancement in Sec.
2B1.1(b)(10)) or Sec. 2B4.1. Since these two guidelines produce
identical offense levels, the combined offense level is 9.'';
and inserting the following new Introductory Commentary and new
Sec. 3D1.1:
'' Introductory Commentary
This part provides rules for determining a single offense level
that encompasses all the counts of which the defendant is convicted.
These rules apply to multiple counts of conviction (A) contained in the
same indictment or information; or (B) contained in different
indictments or informations for which sentences are to be imposed at
the same time or in a consolidated proceeding. The single offense level
that results from applying these rules is used, after adjustment
pursuant to the guidelines in subsequent parts, to determine the
applicable guideline range.
The Commission first designed these rules primarily based on the
more commonly prosecuted offenses with the goals of providing
incremental punishment for significant additional criminal conduct,
preventing multiple punishments for substantially identical conduct,
and limiting the significance of the formal charging decision. These
goals led to the development of three principles: (1) combining the
offense behavior of offenses using a Chapter Two guideline primarily
based on the total amount of harm or loss, the quantity of a substance
involved, or some other measure of aggregate harm; (2) grouping related
offenses together and assigning an offense level based on the most
serious of the related offenses; and (3) assigning incremental offense-
level increases based on any remaining unrelated offenses using a unit
system. The Guidelines Manual expanded on these three principles in
five guidelines, each containing several rules that courts and
commenters frequently found confusing, particularly the rules for
determining whether multiple offenses were related or unrelated.
In 2026, the Commission revised Chapter Three, Part D to simplify
the multiple count rules while maintaining the goals and principles of
the original rules. The current rules still combine offenses to which
the applicable Chapter Two guideline is primarily based on the total
amount of harm or loss, the quantity of a substance involved, or some
other measure of aggregate harm. However, to simplify the process for
assigning incremental punishment in certain cases, the current rules
set forth one rule that was developed based on the situations where
incremental punishment applied most frequently under the original rules
and the average increase involved in those cases. This rule provides
for incremental offense-level increases to multiple counts involving
different victims or the same victim on different occasions, such as
multiple counts of murder, assault, robbery, and sexual abuse, based
solely on the number of counts instead of a unit system.
Sec. 3D1.1. Procedure for Determining Offense Level on Multiple
Counts
(a) If there are multiple counts to which the same guideline
applies and the guideline is listed below, determine the offense level
applicable to these counts using the combined offense behavior taken as
a whole.
The guidelines covered by subsection (a) are as follows:
Sec. 2A3.5;
Sec. Sec. 2B1.1, 2B1.4, 2B1.5, 2B4.1, 2B5.1, 2B5.3, 2B6.1;
Sec. Sec. 2C1.1, 2C1.2, 2C1.8;
Sec. Sec. 2D1.1, 2D1.2, 2D1.5, 2D1.11, 2D1.13;
Sec. Sec. 2E4.1, 2E5.1;
Sec. Sec. 2G2.2, 2G3.1;
Sec. 2K2.1;
Sec. Sec. 2L1.1, 2L2.1;
Sec. 2N3.1;
Sec. 2Q2.1;
Sec. 2R1.1;
Sec. Sec. 2S1.1, 2S1.3;
Sec. Sec. 2T1.1, 2T1.4, 2T1.6, 2T1.7, 2T1.9, 2T2.1, 2T3.1.
(b) (1) If there are multiple counts (A) to which the same
guideline applies, (B) for which the applicable guideline is listed
below, and (C) involving different victims or the same victim on
different occasions, determine the offense level applicable to these
counts by calculating the offense level for each count separately and
applying the adjustment set forth in subsection (b)(2) to the count
resulting in the highest offense level.
The guidelines covered by subsection (b) are as follows:
all offenses in Chapter Two, Part A (except Sec. 2A3.5);
Sec. Sec. 2B2.1, 2B3.1, 2B3.2, 2B3.3;
Sec. 2D2.3;
Sec. Sec. 2E1.3, 2E1.4, 2E2.1;
Sec. Sec. 2G1.1, 2G1.3, 2G2.1;
Sec. Sec. 2H1.1, 2H4.1;
Sec. Sec. 2J1.2, 2J1.3;
Sec. 2K1.4;
Sec. Sec. 2M3.9, 2M6.1;
Sec. 2N1.1;
Sec. 2Q1.4;
Sec. 2X6.1.
(2) The adjustment set forth in the table below shall be based on
the number of counts covered by the guidelines listed in paragraph (1).
------------------------------------------------------------------------
Number of counts covered by guideline
listed in paragraph (1) Increase in offense level
------------------------------------------------------------------------
(A) 2..................................... add 2 levels.
(B) 3..................................... add 3 levels.
(C) 4 or 5................................ add 4 levels.
(D) 6 or more............................. add 5 levels.
------------------------------------------------------------------------
(c) If there are any remaining counts not covered by subsection (a)
or (b), determine the offense level for these counts by calculating the
offense level for each count separately.
(d) The offense level applicable to all counts of conviction is the
highest offense level applicable to: (1) any group of counts as
determined under subsection (a); (2) any group of counts as determined
under subsection (b); or (3) any count as determined under subsection
(c).
(e) Special Instruction for Certain Multiple Counts.--If there are
multiple counts of conviction, exclude from the application of
subsections (a) through (d) above the following counts:
(1) Any count for which the statute (A) specifies a term of
imprisonment to be imposed; and (B) requires that such term of
imprisonment be imposed to run consecutively to any other term of
imprisonment. Sentences for such counts are governed by subsection (a)
of Sec. 5G1.2 (Sentencing on Multiple Counts of Conviction).
(2) Any count of conviction under 18 U.S.C. 1028A. See Application
Note 2(B) of the Commentary to Sec. 5G1.2 (Sentencing on Multiple
Counts of Conviction) for guidance on how sentences for multiple counts
of conviction under 18 U.S.C. 1028A should be imposed.
Commentary
Application Notes:
1. In General.--For purposes of sentencing multiple counts of
conviction, counts can be (A) contained in the same indictment or
information; or (B) contained in different indictments or informations
for which sentences are to be imposed at the same time or in a
consolidated proceeding.
2. Application of Subsection (e).--Subsection (e)(1) applies if a
statute (A) specifies a term of imprisonment to be imposed; and (B)
requires that such term of imprisonment be imposed to run
[[Page 24107]]
consecutively to any other term of imprisonment. See, e.g., 18 U.S.C.
924(c) (requiring mandatory minimum terms of imprisonment, based on the
conduct involved, to run consecutively). The multiple count rules set
out under this guideline do not apply to a count of conviction covered
by subsection (e). However, a count covered by subsection (e)(1) may
affect the offense level determination for other counts. For example, a
defendant is convicted of one count of bank robbery (18 U.S.C. 2113),
and one count of use of a firearm in the commission of a crime of
violence (18 U.S.C. 924(c)). The two counts are not grouped together
pursuant to this guideline, and, to avoid unwarranted double counting,
the offense level for the bank robbery count under Sec. 2B3.1
(Robbery) is computed without application of the enhancement for weapon
possession or use as otherwise required by subsection (b)(2) of that
guideline. Pursuant to 18 U.S.C. 924(c), the mandatory minimum five-
year sentence on the weapon-use count runs consecutively to the
guideline sentence imposed on the bank robbery count. See Sec.
5G1.2(a).
Unless specifically instructed, subsection (e)(1) does not apply
when imposing a sentence under a statute that requires the imposition
of a consecutive term of imprisonment only if a term of imprisonment is
imposed (i.e., the statute does not otherwise require a term of
imprisonment to be imposed). See, e.g., 18 U.S.C. 3146 (Penalty for
failure to appear); 18 U.S.C. 924(a)(4) (regarding penalty for 18
U.S.C. 922(q) (possession or discharge of a firearm in a school zone));
18 U.S.C. 1791(c) (penalty for providing or possessing a controlled
substance in prison). Accordingly, the multiple count rules set out
under this part do apply to a count of conviction under this type of
statute.
3. Rules for Determining a Single Offense Level.--Subsections (a)
through (c) set forth the rules for determining a single offense level
in cases involving multiple counts of conviction, and subsection (d)
instructs to use the highest resulting offense level. In most cases,
the single offense level applicable to all counts can be determined by
applying only one subsection in this guideline. In some cases, the
application of two subsections will be necessary to determine the
single offense level applicable to all counts. In rare cases, the
application of all three subsections will be necessary to determine the
single offense level applicable to all counts. The following examples
illustrate the interaction of the rules set forth in this guideline.
(A) Cases Involving Subsections (a), (c), and (d).--Defendant A is
convicted of two counts of wire fraud, in violation of 18 U.S.C. 1343,
and one count of tax evasion, in violation of 26 U.S.C. 7201. The
guideline that applies to the wire fraud counts is Sec. 2B1.1, while
the guideline that applies to the tax evasion is Sec. 2T1.1. Although
both guidelines are specifically listed in subsection (a), the rule set
forth in subsection (a) is only used to determine a single offense
level for the multiple counts to which the same guideline applies
(i.e., wire fraud counts). Therefore, the offense level for the wire
fraud counts is determined by using the combined behavior. Subsection
(c) would then apply to the remaining tax evasion count, and the
offense level applicable to this count will be calculated separately.
Subsection (d) is used to determine the single offense level for all
three counts. Defendant A's offense level will be the greater of the
offense levels determined above: the offense level based on the
combined behavior calculated for the two counts of wire fraud or the
offense level calculated for the tax evasion count.
(B) Cases Involving Subsections (b), (c), and (d).--Defendant B is
convicted of two counts of impeding a federal officer (each count
involving a different federal officer), in violation of 18 U.S.C.
111(a), and one count of burglary of a post office, in violation of 18
U.S.C. 2115. The guideline that applies to the two counts of impeding a
federal officer is Sec. 2A2.4, while the guideline that applies to the
burglary count is Sec. 2B2.1. Although both guidelines are
specifically listed in subsection (b), the rule set forth in subsection
(b) is only used to determine a single offense level for the multiple
counts to which the same guideline applies (i.e., the counts of
impeding a federal officer). Under subsection (b), each count of
impeding a federal officer is calculated separately. Because subsection
(b) applies to two counts, two levels are added to the count of
impeding a federal officer that results in the highest offense level.
Subsection (c) would apply to the remaining burglary count, and the
offense level applicable for this count will be calculated separately.
Subsection (d) is then used to determine the single offense level for
all three counts, which will be the greater of the offense levels
determined above: the offense level based under subsection (b) for the
counts of impeding a federal officer or the offense level calculated
for the burglary count under subsection (c).
(C) Cases Involving Subsections (a), (b), and (d).--Defendant C is
convicted of two counts of distribution of child pornography, in
violation of 18 U.S.C. 2252A, and three counts of sexual exploitation
of a minor (each count involving a different minor), in violation of 18
U.S.C. 2251(a). Subsection (a) is to be used to determine the single
offense level for the two counts of child pornography distribution
because Sec. 2G2.2, a guideline specifically listed in subsection (a),
applies to both counts. The offense level for both counts is determined
by using `the combined offense behavior taken as a whole.' Subsection
(b) is to be used to determine the single offense level for the three
sexual exploitation counts because Sec. 2G2.1, a guideline
specifically listed in subsection (b), applies to these counts. Each
sexual exploitation count is calculated separately, and three levels
are added under subsection (b)(2)(B) (because there are three counts)
to the count of sexual exploitation that results in the highest offense
level. Subsection (d) is then used to determine the single offense
level applicable to all five counts, which will be the greater of the
offense level determined under subsection (a) for the two counts of
child pornography distribution or the offense level determined under
subsection (b) for the three counts of sexual exploitation.
4. Counts Involving Different Victims or the Same Victim on
Different Occasions.--To prevent double counting of offense behavior,
subsection (b)(1)(C) requires that the counts involve different victims
or the same victim on different occasions. For example, a defendant
convicted of two counts of robbery of Victim A, where the robberies
occurred several days apart, would be subject to a multiple count
adjustment under subsection (b). On the other hand, a defendant
convicted of two counts of robbery of Victim A, where one count charges
conspiracy or solicitation to commit robbery and the other charges the
substantive robbery, would not be subject to a multiple count
adjustment under subsection (b) because the counts involve the same
victim on the same occasion.
5. Interaction with Sec. 1B1.5(c).--Subsection (c) of Sec. 1B1.5
(Interpretation of References to Other Offense Guidelines) provides
(with certain exceptions) that, in the case of a cross reference or
other reference to use an entire Chapter Two guideline, this guideline
applies based on the referenced offense guideline, not the offense
guideline containing the reference. The following examples illustrate
the circumstances where this instruction would apply.
(A) Cross References.--Defendant A is convicted of one count of
distribution of
[[Page 24108]]
child pornography, in violation of 18 U.S.C. 2252A, and one count of
sexual exploitation of a minor, in violation of 18 U.S.C. 2251(a).
Distribution of child pornography is referenced in Appendix A
(Statutory Index) to Sec. 2G2.2, while sexual exploitation of a minor
is referenced to Sec. 2G2.1. However, Sec. 2G2.2 contains a cross
reference to Sec. 2G2.1 for certain cases. If the cross reference at
Sec. 2G2.2(c) applies to the count of distribution of child
pornography based on a different victim or the same victim on a
different occasion, subsection (b) is to be used to determine the
single offense level for both counts because the same guideline (Sec.
2G2.1), a guideline specifically listed in subsection (b), is
applicable to the counts.
(B) Other References.--Defendant B is convicted of one count of
Hobbs Act robbery, in violation of 18 U.S.C. 1951, and one count of
conspiracy to commit bank robbery, in violation of 18 U.S.C. 371. The
Hobbs Act robbery is referenced in Appendix A (Statutory Index) to
Sec. 2B3.1, while conspiracy to commit bank robbery is referenced to
Sec. 2X1.1. Section 2X1.1(a) requires the offense level to be
determined by applying the base offense level and adjustments from the
guideline for the underlying substantive offense, which is Sec. 2B3.1
in this case. If the counts involve different victims or the same
victim on different occasions, subsection (b) is to be used to
determine the single offense level for both counts because the same
guideline (Sec. 2B3.1), a guideline specifically listed in subsection
(b), is applicable to the counts.
(C) Exception.--Defendant C is convicted of money laundering, in
violation of 18 U.S.C. 1956, and one count of conspiracy to commit
murder, in violation of 18 U.S.C. 1117. Defendant C laundered proceeds
that were wired to him as advanced payment for murder, which never took
place. Money laundering is referenced in Appendix A (Statutory Index)
to Sec. 2S1.1, while conspiracy to commit murder is referenced to
Sec. 2A5.1. For the money laundering count, Sec. 2S1.1(a)(1)
instructs to determine the offense level for the underlying offense
from which the laundered funds were derived. Therefore, the base
offense level for the money laundering count is determined by applying
Sec. 2A1.5, the guideline applicable to the conspiracy to commit
murder. Although the offense level for both counts is calculated by
applying Sec. 2A1.5 (a guideline listed in subsection (b)), subsection
(b) cannot be used to determine the single offense level for the counts
because of a special instruction included in the Commentary to Sec.
2S1.1. This instruction provides that ``[n]otwithstanding Sec.
1B1.5(c), . . . application of any Chapter Three adjustment shall be
determined based on the offense covered by this guideline (i.e., the
laundering of criminally derived funds) and not on the underlying
offense from which the laundered funds were derived.'' Consequently,
for purposes of subsection (b), two different guidelines (Sec. 2S1.1
and Sec. 2A1.5) apply to the counts.
Background: This section outlines the procedure to be used for
determining the combined offense level. After any adjustments from
Chapter Three, Parts E (Acceptance of Responsibility) and F (Early
Disposition Programs), and Chapter Four, Parts B (Career Offenders and
Criminal Livelihood) and C (Adjustment for Certain Zero-Point
Offenders) are made, this combined offense level is used to determine
the guideline sentence range. Chapter Five (Determining the Sentencing
Range and Options Under the Guidelines) discusses how to determine the
sentence from the (combined) offense level; Sec. 5G1.2 deals
specifically with determining the sentence of imprisonment when
convictions on multiple counts are involved. References in Chapter Five
(Determining the Sentencing Range and Options Under the Guidelines) to
the `offense level' should be treated as referring to the combined
offense level after all subsequent adjustments have been made.''.
The Commentary to Sec. 5G1.2 captioned ``Application Notes'' is
amended in Note 2(B)(ii) by striking ``Whether the underlying offenses
are groupable under Sec. 3D1.2 (Groups of Closely Related Counts).
Generally, multiple counts of 18 U.S.C. 1028A should run concurrently
with one another in cases in which the underlying offenses are
groupable under Sec. 3D1.2'' and inserting ``Whether subsection (b) of
Sec. 3D1.1 (Procedure for Determining Offense Level on Multiple
Counts) applies to the underlying offenses. Generally, multiple counts
of 18 U.S.C. 1028A should run concurrently with one another in cases in
which Sec. 3D1.1(b) does not apply to the underlying offenses''.
Reason for Amendment: As part of the Commission's continued efforts
to simplify the Guidelines Manual, this amendment revises the rules in
Chapter Three, Part D (Multiple Counts), to simplify the procedure for
determining the single offense level for cases involving multiple
counts. The amendment responds to both commenter concerns and
Commission observations through its training mission that the rules
were confusing and, at times, led to misapplication of the rules,
potentially resulting in unwarranted sentencing disparities.
This amendment replaces the five guidelines in Chapter Three, Part
D, with a single guideline at Sec. 3D1.1 (Procedure for Determining
Offense Levels on Multiple Counts) that provides all the steps
necessary to determine a single offense level for cases involving
multiple counts. The new guideline simplifies the process with minimal
impact to sentencing outcomes. In that regard, the new guideline
retains the same goals of providing incremental punishment for
significant additional criminal conduct, preventing multiple
punishments for substantially identical conduct, and limiting the
significance of the formal charging decision.
New subsection (a) provides the rule for calculating an offense
level where multiple counts involve aggregate harms, such as multiple
counts of fraud, drug trafficking, firearms, and tax. New subsection
(a) provides that, if multiple counts use the same guideline and the
guideline is listed therein, the offense level for this group of counts
is determined using the combined offense behavior taken as a whole. The
guidelines listed in new subsection (a) are the same guidelines that
required aggregation under the prior version of subsection (d) of Sec.
3D1.2 (Groups of Closely Related Counts). As such, new subsection (a)
maintains the approach for aggregate harm offenses as set forth in
prior subsection (b) of Sec. 3D1.3 (Offense Level Applicable to Each
Group of Closely Related Counts).
New subsection (b) provides the rule for calculating an offense
level for multiple counts involving physical harm to an individual
victim, such as multiple counts of murder, assault, robbery, and sexual
abuse. Where the case involves multiple counts sentenced pursuant to
the same guideline involving different victims or the same victim on
different occasions, and that guideline is listed in subsection (b),
the rule provides that the offense level for each count is first
calculated separately to determine the highest offense level. Then, an
adjustment is applied based on the table set forth in subsection
(b)(2).
Consistent with the Commission's goal of outcome neutrality, both
the guideline list provided for in subsection (b) and the offense-level
adjustment were developed based upon empirical data and informed by
public comment. The list is intended to capture guidelines covering
offenses involving physical harm to an individual victim as well as
guidelines that previously
[[Page 24109]]
contained instructions to apply a multiple count adjustment under
similar circumstances. Similarly, the offense-level adjustment results
in average increases that are consistent with the pre-amendment
guidelines.
New subsection (c) instructs courts to calculate the offense level
for counts not covered by subsection (a) or (b) separately.
New subsection (d) instructs courts to use the highest resulting
offense level from subsection (a), (b), or (c).
Finally, new subsection (e) retains the provisions of prior Sec.
3D1.1(b) identifying certain types of convictions that are excluded
from the multiple count rules.
Consistent with the Commission's overarching intent, the amendment
is largely outcome neutral. The Commission estimated that 93 percent of
the nearly 11,000 multiple count cases from fiscal year 2024 and 99
percent of all cases sentenced in fiscal year 2024 would have no change
in sentence. Further, when accounting for the cases that result in a
higher or lower final offense level under the new rules, the Commission
observed that the average change in sentence imposed on all multiple
count cases would be less than one month, from an average of 99.5
months to 98.9 months.
The amendment also makes several conforming changes throughout the
Guidelines Manual. Most notably, the amendment makes conforming changes
to Sec. 1B1.3 (Relevant Conduct) to address the fact that it
previously referenced the grouping rules at prior Sec. 3D1.2(d). As
revised, Sec. 1B1.3(a)(2) now incorporates the relevant provisions
from prior Sec. 3D1.2(d) in new Sec. 1B1.3(d). Therefore, while Sec.
1B1.3 appears different than the prior version, the Commission intends
for relevant conduct to function identically to how it had before the
amendment.
5. 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 Sentencing Range and Sentencing Options'';
by inserting at the beginning the following new Introductory
Commentary:
``Introductory Commentary
By statute, sentencing courts must consider and balance a broad
range of factors when determining the appropriate sentence to impose in
each individual case. Among these factors, courts are required to
consider `all available sentencing options.' 18 U.S.C. 3553(a)(3). Each
of the available sentencing options--imprisonment, probation, and
fines--serves a punitive function, and the sentencing court must
determine the option, or combination of options, that best achieves a
sentence `sufficient, but not greater than necessary to comply with the
purposes set forth in [18 U.S.C. 3553(a)(2)].' 18 U.S.C. 3553(a).
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)). 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. By
clearly delineating the sentencing options available under the
guidelines, the Commission intends for Part A of this chapter to assist
courts in making this critical decision.'';
by inserting before the Sentencing Table the following new heading:
``Sec. 5A1.1. Sentencing Table'';
by redesignating the Sentencing Table as Sec. 5A1.1(c);
in Sec. 5A1.1 by inserting before subsection (c) (the Sentencing
Table as so redesignated) the following:
``The Sentencing Table is used to determine the applicable
sentencing range and sentencing options based upon the guideline
calculations made in Chapters Two through Four.
(a) The Offense Level (1-43) forms the vertical axis of the
Sentencing Table. The Criminal History Category (I-VI) forms the
horizontal axis of the Table. The intersection of the Offense Level and
Criminal History Category displays the Guideline Range in months of
imprisonment. For example, the guideline range applicable to a
defendant with an Offense Level of 15 and a Criminal History Category
of III is 24-30 months of imprisonment. For purposes of the Sentencing
Table, `Life' means life imprisonment.
(b) The Sentencing Table is divided into Zones A, B, C, and D. Each
zone provides for different sentencing options for the court's
consideration. 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 minimums and maximums)), the
sentencing options in each zone are as follows:
Sentencing Options
------------------------------------------------------------------------
------------------------------------------------------------------------
Zone A: <bullet> probation;
<bullet> probation with a period of intermittent
confinement, community confinement, or home
detention;
<bullet> a ``split sentence'' (i.e., part of the
term satisfied by imprisonment and the remainder
satisfied by a term of supervised release with a
condition that substitutes community confinement
or home detention for imprisonment, according to
the schedule in Sec. 5C1.1(e)); or
<bullet> imprisonment.
See Sec. 5B1.1(a)(1); Sec. 5C1.1(b), (e);
Sec. 5C1.1, comment. (n.2).
Zone B: <bullet> probation with the minimum term of
imprisonment satisfied by a period of
intermittent confinement, community confinement,
or home detention, according to the schedule in
Sec. 5C1.1(e);
<bullet> a ``split sentence'' (with at least one
month satisfied by imprisonment); or
<bullet> imprisonment.
See Sec. 5B1.1(a)(2); Sec. 5C1.1(c), (e);
Sec. 5C1.1, comment. (n.3).
Zone C: <bullet> a ``split sentence'' (with at least one-
half of the minimum term satisfied by
imprisonment); or
<bullet> imprisonment.
See Sec. 5C1.1(d), (e); Sec. 5C1.1, comment.
(n.4).
Zone D: <bullet> imprisonment.
See Sec. 5C1.1(f).''
------------------------------------------------------------------------
[[Page 24110]]
by redesignating the Commentary captioned ``Commentary to
Sentencing Table'' as the ``Commentary'' to Sec. 5A1.1;
and in the Commentary to Sec. 5A1.1 (as so redesignated) captioned
``Application Notes''--
by striking Note 1 as follows:
``1. The Offense Level (1-43) forms the vertical axis of the
Sentencing Table. The Criminal History Category (I-VI) forms the
horizontal axis of the Table. The intersection of the Offense Level and
Criminal History Category displays the Guideline Range in months of
imprisonment. `Life' means life imprisonment. For example, the
guideline range applicable to a defendant with an Offense Level of 15
and a Criminal History Category of III is 24-30 months of
imprisonment.'';
by redesignating Notes 2 and 3 as Notes 1 and 2, respectively;
in Note 1 (as so redesignated) by inserting at the beginning the
following new heading: ``Total Offense Level.--'';
in Note 2 (as so redesignated) by inserting at the beginning the
following new heading: ``Criminal History Category.--'';
and by inserting at the end the following new Note 3:
``3. 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).''
The Commentary to Sec. 5G1.2 captioned ``Application Notes,'' as
amended by Amendment 4 of this document, is further amended in Note 1
by striking ``Chapter Five, Part A (Sentencing Table)'' and inserting
``Chapter Five, Part A (Determination of Sentencing Range and
Sentencing Options)''.
Reason for Amendment: This amendment revises Part A (Sentencing
Table) of Chapter Five (Determining the Sentencing Range and Options
Under the Guidelines) by adding Introductory Commentary and a new
guideline at Sec. 5A1.1 (Sentencing Table). The amendment was informed
by feedback the Commission received from stakeholders throughout the
amendment cycle, including at a Sentencing Options Roundtable held in
December 2025. The Commission's consideration of this amendment was
also informed by research finding that the initial determination of
whether a sentence should include any incarceration has been a site of
demographic disparities in sentencing. See, e.g., U.S. Sent'g Comm'n,
Demographic Differences in Federal Sentencing (2023).
Chapter Five is divided into seven parts--Parts A through G--that,
in combination, guide all aspects of determining the appropriate
sentence, including the initial determination of sentence type. The
Sentencing Table, at Part A, provides guideline ranges that are
determined by a defendant's offense level and criminal history category
and are measured in months of imprisonment. It is further divided into
four zones--Zones A through D--each of which authorizes different
sentencing options. Zone A authorizes probationary sentences, and Zones
B and C each authorize alternative sentences, contingent upon the
imposition of confinement conditions. Zone D authorizes imprisonment
sentences only. Prior to this amendment, only the Sentencing Table and
its commentary appeared in Part A, while the instructions regarding the
sentencing options available within each zone were distributed
throughout different sections of Chapter Five. See Sec. 5B1.1(a);
Sec. 5C1.1 & comment. nn.2-4.
The amendment adds Introductory Commentary and a new guideline to
Chapter Five that clearly delineates the full range of sentencing
options available under the guidelines before proceeding to the
Sentencing Table itself. The Commission intends for the new
Introductory Commentary and Sec. 5A1.1 to serve complementary
functions. First, the new Introductory Commentary emphasizes that
courts must consider and balance a broad range of factors to achieve a
sentence that is ``sufficient, but not greater than necessary to comply
with the purposes set forth in [18 U.S.C. 3553(a)(2)],'' and that each
of the available sentencing options--imprisonment, probation, and
fines--serves a punitive function. The Introductory Commentary
highlights Congress's considerations at the time the Sentencing Reform
Act was enacted and further effectuates Congress's directive to the
Commission to promulgate guidelines for determining ``whether to impose
a sentence to probation, a fine, or a term of imprisonment.'' 28 U.S.C.
994(a)(1)(B).
Second, new Sec. 5A1.1 describes the structure and operation of
the Sentencing Table and lists all available guideline sentencing
options to assist the court in determining the appropriate sentence
under the guidelines, including the determination of sentence type.
Subsection (a) adopts language that previously appeared in Application
Note 1 of the Commentary to the Sentencing Table, which explains the
two axes of the Table and how to determine the guideline range.
Subsection (b) provides a table that lists the sentencing options
available within each zone in the Sentencing Table with cross-
references to the relevant provisions of Chapter Five. Subsection (c)
then sets forth the Sentencing Table, which is unchanged by the
amendment.
By setting forth the operation of the Sentencing Table and clearly
delineating a court's guideline sentencing options, the Commission
intends to further assist courts in determining the appropriate
sentence--both sentence length and sentence type. The Commission
believes an explanation of the sentencing options and its placement
before the Sentencing Table will benefit new practitioners and new
judges and serve as a useful reminder to judges of the importance that
the Commission and its enabling legislation place on the determination
of sentence type.
6. Amendment: The Commentary to Sec. 2C1.1 captioned ``Statutory
Provisions'' is amended by striking ``18 U.S.C. 201(b)(1), (2), 226,
227, 371 (if conspiracy to defraud by interference with governmental
functions), 872, 1341 (if the scheme or artifice to defraud was to
deprive another of the intangible right of honest services of a public
official), 1342 (if the scheme or artifice to defraud was to deprive
another of the intangible right of honest services of a public
official), 1343 (if the scheme or artifice to defraud was to deprive
another of the intangible right of honest services of a public
official), 1951'' and inserting ``18 U.S.C. 201(b)(1), (2), 226, 227,
371 (if conspiracy to defraud by interference with governmental
functions), 872, 1341 (if the scheme or artifice to defraud was to
deprive another of the intangible right of honest services of a public
official), 1342 (if the scheme or artifice to defraud was to deprive
another of the intangible right of honest services of a public
official), 1343 (if the scheme or artifice to defraud was to deprive
another of the intangible right of honest services of a public
official), 1352, 1951''.
The Commentary to Sec. 2H3.1 captioned ``Statutory Provisions'' is
amended by striking ``8 U.S.C. 1375a(d)(5)(B)(i), (ii);'' and inserting
``8 U.S.C. 1375a(d)(5)(B)(i), (ii); 15 U.S.C. 9901;''.
Appendix A (Statutory Index) is amended--
by inserting before the line referenced to 16 U.S.C. 114 the
following new line reference:
``15 U.S.C. 9901 2H3.1'';
and by inserting before the line referenced to 18 U.S.C. 1361 the
following new line reference:
``18 U.S.C. 1352 2C1.1''.
Reason for Amendment: This amendment responds to recently enacted
legislation.
[[Page 24111]]
Protecting Americans' Data from Foreign Adversaries Act
First, the amendment amends Appendix A (Statutory Index) to
reference a new offense at 15 U.S.C. 9901 (Prohibition on transfer of
personally identifiable sensitive data of United States individuals to
foreign adversaries) to Sec. 2H3.1 (Interception of Communications;
Eavesdropping; Disclosure of Certain Private or Protected Information)
in response to the Protecting Americans' Data from Foreign Adversaries
Act, Pub. L. 118-50 (2024).
Section 9901 prohibits data brokers from selling, licensing,
trading, disclosing, or providing access to personally identifiable
sensitive data of an individual of the United States to any foreign
adversary country or any entity controlled by a foreign adversary.
``Personally identifiable sensitive data'' under section 9901 includes
any sensitive data that identifies or is reasonably linkable to an
individual, including Social Security numbers, financial account
numbers, and phone or text logs and emails. Section 9901(b)(2) provides
that the penalties are the same as provided in the Federal Trade
Commission Act (15 U.S.C. 41-58). Section 50 (Offenses and penalties)
of title 15 provides, in turn, a statutory maximum term of imprisonment
of one year, for anyone who refuses to attend, testify, or answer any
lawful inquiry or produce documentary evidence ``in obedience to an
order of a district court . . . directing compliance with the subpoena
or lawful requirement'' of the Federal Trade Commission, and for
officers or employees of the Commission who make any information
obtained by the Commission public without authority. Section 50 also
provides a statutory maximum term of imprisonment of three years, for
willfully making any false entry or statement of fact in certain
reports, accounts or records of any person, partnership, or corporation
subject to the Act, or removing from the jurisdiction or mutilating,
altering, or otherwise falsifying any documentary evidence.
The Commission determined that Sec. 2H3.1 is the most appropriate
guideline to which to reference section 9901. The statutory elements of
section 9901 are most analogous to the elements of other statutes
criminalizing the unauthorized disclosure of certain personal
information, including 18 U.S.C. 119 (Protection of individuals
performing certain official duties), prohibiting making publicly
available restricted personal information such as Social Security
numbers, telephone numbers, and personal email, which is referenced to
Sec. 2H3.1.
Foreign Extortion Prevention Technical Corrections Act
Next, the amendment amends Appendix A to reference a new offense at
18 U.S.C. 1352 (Demands by foreign officials for bribes) to Sec. 2C1.1
(Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under
Color of Official Right; Fraud Involving the Deprivation of the
Intangible Right to Honest Services of Public Officials; Conspiracy to
Defraud by Interference with Governmental Functions) in response to the
Foreign Extortion Prevention Technical Corrections Act, Public Law 118-
78 (2024).
Section 1352 prohibits foreign officials (or those selected to be
foreign officials) from corruptly demanding, seeking, receiving,
accepting, or agreeing to receive or accept, anything of value
personally or for any person or nongovernmental entity, from any
``person'' while located in the United States, or from a ``domestic
concern'' (as those terms are defined in sections 78dd-2 and 78dd-3 of
the Foreign Corrupt Practices Act), or from an issuer, in return for
being influenced or induced, or conferring any improper advantage in
connection with obtaining or retaining business for or with any person,
with a statutory maximum term of imprisonment of 15 years.
The Commission determined that Sec. 2C1.1 is the most appropriate
guideline to which to reference this offense because the statutory
elements of the offense are most analogous to the elements in other
statutes criminalizing bribery referenced to Sec. 2C1.1. Specifically,
sections 78dd-2 (Prohibited foreign trade practices by domestic
concerns) and 78dd-3 (Prohibiting foreign trade practices by persons
other than issuers or domestic concerns) of the Foreign Corrupt
Practices Act, which are referenced to Sec. 2C1.1, prohibit the paying
of bribes to foreign officials, foreign political parties, or
candidates for foreign political office.
7. Amendment: Section 1B1.13(a) is amended by striking ``Bureau of
Prisons'' and inserting ``Federal Bureau of Prisons''.
Section 1B1.13(b)(4) is amended by striking ``Bureau of Prisons''
and inserting ``Federal Bureau of Prisons''.
Section 2A3.1(b)(4)(C) is amended by striking ``subdivisions (A)
and (B)'' and inserting ``subparagraphs (A) and (B)''.
The Commentary to Sec. 2A3.1 captioned ``Application Notes'' is
amended in Note 1, in the paragraph that begins '' `Interactive
computer service' has'', by striking ``section 230(e)(2)'' and
inserting ``section 230(f)(2)''.
The Commentary to Sec. 2A3.2 captioned ``Application Notes'' is
amended in Note 1, in the paragraph that begins `` `Interactive
computer service' has'', by striking ``section 230(e)(2)'' and
inserting ``section 230(f)(2)''.
The Commentary to Sec. 2A3.3 captioned ``Application Notes'' is
amended in Note 1, in the paragraph that begins `` `Interactive
computer service' has'', by striking ``section 230(e)(2)'' and
inserting ``section 230(f)(2)''.
The Commentary to Sec. 2A3.4 captioned ``Application Notes'' is
amended in Note 1, in the paragraph that begins `` `Interactive
computer service' has'', by striking ``section 230(e)(2)'' and
inserting ``section 230(f)(2)''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes,'' as
amended by Amendment 1 and Amendment 3 of this document, is further
amended in Note 13 by striking ``section 230(e)(2)'' and inserting
``section 230(f)(2)''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes,'' as
amended by Amendment 1 and Amendment 4 of this document, is further
amended--
in Note 1(A) by striking ``subdivision (B)'' and inserting
``subparagraph (B)'';
in Note 4, as redesignated by Amendment 1 of this document, by
striking ``section 230(e)(2)'' and inserting ``section 230(f)(2)'';
and in Note 7, as redesignated by Amendment 1 of this document, by
striking ``involved unlawfully manufacturing a controlled substance or
attempting to manufacture'' and inserting ``involved unlawfully
manufacturing a controlled substance, or attempting to manufacture''.
The Commentary to Sec. 2D1.12 captioned ``Application Notes'' is
amended--
in Note 1 by striking ``involved unlawfully manufacturing a
controlled substance or attempting to manufacture'' and inserting
``involved unlawfully manufacturing a controlled substance, or
attempting to manufacture'';
and in Note 3 by striking ``section 230(e)(2)'' and inserting
``section 230(f)(2)''.
The Commentary to Sec. 2G1.3 captioned ``Application Notes,'' as
amended by Amendment 4 of this document, is further amended in Note 1,
in the paragraph that begins ```Interactive computer service' has'', by
striking ``section 230(e)(2)'' and inserting ``section 230(f)(2)''.
The Commentary to Sec. 2G2.1 captioned ``Application Notes,'' as
amended by
[[Page 24112]]
Amendment 4 of this document, is further amended in Note 1, in the
paragraph that begins `` `Interactive computer service' has'', by
striking ``section 230(e)(2)'' and inserting ``section 230(f)(2)''.
Section 2G2.2(b)(3)(D) is amended by striking ``subdivision (E)''
and inserting ``subparagraph (E)''.
Section 2G2.2(b)(3)(F) is amended by striking ``subdivisions (A)
through (E)'' and inserting ``subparagraphs (A) through (E)''.
The Commentary to Sec. 2G2.2 captioned ``Application Notes'' is
amended in Note 1--
in the paragraph that begins `` `Interactive computer service'
has'' by striking ``section 230(e)(2)'' and inserting ``section
230(f)(2)'';
and in the paragraph that begins ```Sexual abuse or exploitation'
means'' by striking ``subdivisions (A) or (B)'' and inserting
``subparagraphs (A) or (B)''.
The Commentary to Sec. 2G2.2 captioned ``Background'' is amended
by striking ``subdivision (7)'' and inserting ``paragraph (7)''.
The Commentary to Sec. 2G2.6 captioned ``Application Notes'' is
amended in Note 1, in the paragraph that begins `` `Interactive
computer service' has'', by striking ``section 230(e)(2)'' and
inserting ``section 230(f)(2)''.
Section 2G3.1(b)(1)(D) is amended by striking ``subdivision (E)''
and inserting ``subparagraph (E)''.
Section 2G3.1(b)(1)(F) is amended by striking ``subdivisions (A)
through (E)'' and inserting ``subparagraphs (A) through (E)''.
The Commentary to Sec. 2G3.1 captioned ``Application Notes'' is
amended in Note 1, in the paragraph that begins `` `Interactive
computer service' has'', by striking ``section 230(e)(2)'' and
inserting ``section 230(f)(2)''.
The Commentary to Sec. 5E1.2 captioned ``Application Notes'' is
amended in Note 6 by striking ``Bureau of Prisons'' and inserting
``Federal Bureau of Prisons''.
The Commentary to Sec. 5F1.7 captioned ``Background'' is amended
in the paragraph that begins ``In 1990,'' by striking ``Bureau of
Prisons'' each place it appears and inserting ``Federal Bureau of
Prisons''.
The Commentary to Sec. 5F1.8 captioned ``Application Note'' is
amended in Note 1 by striking ``Bureau of Prisons'' and inserting
``Federal Bureau of Prisons''.
Section 5G1.3(b)(1) is amended by striking ``Bureau of Prisons''
and inserting ``Federal Bureau of Prisons''.
The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is
amended in Note 2(C) by striking ``Bureau of Prisons'' and inserting
``Federal Bureau of Prisons''.
The Commentary to Sec. 7B1.4 captioned ``Application Notes'' is
amended in Note 3 by striking ``18 U.S.C. 3563(a)'' and inserting ``18
U.S.C. 3563(e)''.
Section 7C1.1(a) is amended by striking ``four grades'' and
inserting ``three grades''.
The Commentary to Sec. 7C1.5 captioned ``Application Notes'' is
amended in Note 3 by striking ``The availability'' and inserting ``In
the case of a defendant who fails a drug test, the availability''.
Section 8A1.2(b)(2)(G) is amended by striking ``guideline range''
and inserting ``guideline fine range''.
Section 8A1.2(b)(4) is amended by striking ``guideline range'' and
inserting ``guideline fine range''.
Section 8C2.8(a) is amended by striking ``guideline range'' and
inserting ``guideline fine range''.
The Commentary to Sec. 8C2.8 captioned ``Application Notes'' is
amended in Note 2 by striking ``guideline range'' and inserting
``guideline fine range''.
Appendix A (Statutory Index), as amended by Amendment 6 of this
document, is further amended--
in the line referenced to 7 U.S.C. 6b(A) by striking ``Sec.
6b(A)'' and inserting ``Sec. 6b(a)'';
in the line referenced to 7 U.S.C. 6b(B) by striking ``Sec.
6b(B)'' and inserting ``Sec. 6b(b)'';
in the line referenced to 7 U.S.C. 6b(C) by striking ``Sec.
6b(C)'' and inserting ``Sec. 6b(c)'';
by inserting before the line referenced to 46 U.S.C. App. Sec.
1707a(f)(2) the following line references:
``46 U.S.C. 70503 2D1.1
46 U.S.C. 70506(a) 2D1.1
46 U.S.C. 70506(b) 2D1.1'';
and by striking the following line references:
``46 U.S.C. App. Sec. 1903(a) 2D1.1
46 U.S.C. App. Sec. 1903(g) 2D1.1
46 U.S.C. App. Sec. 1903(j) 2D1.1''.
Reason for Amendment: This amendment makes technical, stylistic,
and other non-substantive changes to the Guidelines Manual.
First, the amendment makes clerical changes to several guidelines
to replace references to the ``Bureau of Prisons'' with more accurate
references to the ``Federal Bureau of Prisons.'' It makes changes to
the following guidelines: Sec. 1B1.13 (Reduction in Term of
Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)); Sec.
5E1.2 (Fines for Individual Defendants); Sec. 5F1.7 (Shock
Incarceration Program (Policy Statement)); Sec. 5F1.8 (Intermittent
Confinement); and Sec. 5G1.3 (Imposition of a Sentence on a Defendant
Subject to an Undischarged Term of Imprisonment or Anticipated State
Term of Imprisonment).
Second, the amendment makes technical changes to update the
references to the Communications Act of 1934 in the context of the
definition of the term ``interactive computer service,'' which is used
by several guidelines. It makes changes to the following guidelines:
Sec. 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual
Abuse); Sec. 2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of
Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts); Sec.
2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts;
Criminal Sexual Abuse of an Individual in Federal Custody); Sec. 2A3.4
(Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact);
Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy); Sec. 2D1.11 (Unlawfully
Distributing, Importing, Exporting or Possessing a Listed Chemical;
Attempt or Conspiracy); Sec. 2D1.12 (Unlawful Possession, Manufacture,
Distribution, Transportation, Exportation, or Importation of Prohibited
Flask, Equipment, Chemical, Product, or Material; Attempt or
Conspiracy); Sec. 2G1.3 (Promoting a Commercial Sex Act or Prohibited
Sexual Conduct with a Minor; Transportation of Minors to Engage in a
Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in
Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex
Trafficking of Children; Use of Interstate Facilities to Transport
Information about a Minor); Sec. 2G2.1 (Sexually Exploiting a Minor by
Production of Sexually Explicit Visual or Printed Material; Custodian
Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement
for Minors to Engage in Production); Sec. 2G2.2 (Trafficking in
Material Involving the Sexual Exploitation of a Minor; Receiving,
Transporting, Shipping, Soliciting, or Advertising Material Involving
the Sexual Exploitation of a Minor; Possessing Material Involving the
Sexual Exploitation of a Minor with Intent to Traffic; Possessing
Material Involving the Sexual Exploitation of a Minor); Sec. 2G2.6
(Child Exploitation Enterprises); Sec. 2G3.1 (Importing, Mailing, or
Transporting Obscene Matter; Transferring Obscene Matter to a Minor;
Misleading Domain Names); and Sec. 2H3.1 (Interception of
Communications; Eavesdropping;
[[Page 24113]]
Disclosure of Certain Private or Protected Information). The amendment
also makes other non-substantive changes to some of these guidelines to
provide stylistic consistency in how subdivisions are designated and to
correct some typographical errors.
Third, the amendment makes technical changes to Sec. 7B1.4 (Term
of Imprisonment--Probation (Policy Statement)) and Sec. 7C1.5 (Term of
Imprisonment--Supervised Release (Policy Statement)), to clarify
statutory references regarding a court's authority to provide an
exception to mandatory revocation of probation or supervised release in
the case of a defendant who fails a drug test.
Fourth, the amendment makes a technical change to Sec. 7C1.1
(Classification of Violations (Policy Statement)) to correct an
inaccurate reference to ``four'' grades of supervised release
violations.
Fifth, the amendment makes technical changes to Sec. 8A1.2
(Application Instructions--Organizations) and Sec. 8C2.8 (Determining
the Fine Within the Range (Policy Statement)), to replace references to
the ``guideline range'' with more accurate references to the
``guideline fine range.''
Finally, the amendment makes clerical changes to Appendix A
(Statutory Index) to reflect the editorial reclassification of certain
sections in the United States Code.
[FR Doc. 2026-08647 Filed 5-1-26; 8:45 am]
BILLING CODE 2210-40-P
</pre></body>
</html>Indexed from Federal Register on May 4, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.