Sentencing Guidelines for United States Courts
| Published date | 20 December 2018 |
| Citation | 83 FR 65400 |
| Record Number | 2018-27505 |
| Section | Notices |
| Court | United States Sentencing Commission |
Federal Register, Volume 83 Issue 244 (Thursday, December 20, 2018)
[Federal Register Volume 83, Number 244 (Thursday, December 20, 2018)]
[Notices]
[Pages 65400-65422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27505]
[[Page 65399]]
Vol. 83
Thursday,
No. 244
December 20, 2018
Part IIUnited States Sentencing Commission-----------------------------------------------------------------------Sentencing Guidelines for United States Courts; Notices
Federal Register / Vol. 83 , No. 244 / Thursday, December 20, 2018 /
Notices
[[Page 65400]]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission
ACTION: Notice of proposed amendments to sentencing guidelines, policy
statements, and commentary. Request for public comment, including
public comment regarding retroactive application of any of the proposed
amendments. Notice of public hearing.
-----------------------------------------------------------------------
SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United
States Code, the United States Sentencing Commission is considering
promulgating amendments to the sentencing guidelines, policy
statements, and commentary. This notice sets forth the proposed
amendments and, for each proposed amendment, a synopsis of the issues
addressed by that amendment. This notice also sets forth several issues
for comment, some of which are set forth together with the proposed
amendments, and one of which (regarding retroactive application of
proposed amendments) is set forth in the Supplementary Information
section of this notice.
DATES:
(1) Written Public Comment.--Written public comment regarding the
proposed amendments and issues for comment set forth in this notice,
including public comment regarding retroactive application of any of
the proposed amendments, should be received by the Commission not later
than February 19, 2019. Written reply comments, which may only respond
to issues raised during the original comment period, should be received
by the Commission not later than March 15, 2019. Public comment
regarding a proposed amendment received after the close of the comment
period, and reply comment received on issues not raised during the
original comment period, may not be considered.
(2) Public Hearing.--The Commission may hold a public hearing
regarding the proposed amendments and issues for comment set forth in
this notice. Further information regarding any public hearing that may
be scheduled, including requirements for testifying and providing
written testimony, as well as the date, time, location, and scope of
the hearing, will be provided by the Commission on its website at
www.ussc.gov.
ADDRESSES: All written comment should be sent to the Commission by
electronic mail or regular mail. The email address for public comment
is Public_Comment@ussc.gov. The regular mail address for public comment
is United States Sentencing Commission, One Columbus Circle NE, Suite
2-500, Washington, DC 200002-8002, Attention: Public Affairs--Proposed
Amendments.
FOR FURTHER INFORMATION CONTACT: Christine Leonard, Director, Office of
Legislative and Public Affairs, (202) 502-4500, pubaffairs@ussc.gov.
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. Sec. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. Sec. 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. Sec. 994(p).
Publication of a proposed amendment requires the affirmative vote
of at least three voting members of the Commission and is deemed to be
a request for public comment on the proposed amendment. See USSC Rules
of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote
of at least four voting members is required to promulgate an amendment
and submit it to Congress. See id. 2.2; 28 U.S.C. Sec. 994(p).
The proposed amendments in this notice are presented in one of two
formats. First, some of the amendments are proposed as specific
revisions to a guideline, policy statement, or commentary. Bracketed
text within a proposed amendment indicates a heightened interest on the
Commission's part in comment and suggestions regarding alternative
policy choices; for example, a proposed enhancement of [2][4][6] levels
indicates that the Commission is considering, and invites comment on,
alternative policy choices regarding the appropriate level of
enhancement. Similarly, bracketed text within a specific offense
characteristic or application note means that the Commission
specifically invites comment on whether the proposed provision is
appropriate. Second, the Commission has highlighted certain issues for
comment and invites suggestions on how the Commission should respond to
those issues.
In summary, the proposed amendments and issues for comment set
forth in this notice are as follows:
(1) A two-part proposed amendment to Sec. 1B1.10 (Reduction in
Term of Imprisonment as a Result of Amended Guideline Range (Policy
Statement)), including (A) three options for amending the policy
statement and commentary in light of Koons v. United States, 138 S. Ct.
1783 (2018); and (B) two options for amending the commentary to resolve
a circuit conflict concerning the application of Sec. 1B1.10(b)(2)(B),
and a related issue for comment;
(2) a multi-part proposed amendment to Sec. 4B1.2 (Definitions of
Terms Used in Section 4B1.1), including (A) amendments establishing
that the categorical approach and modified categorical approach do not
apply in determining whether a conviction is a ``crime of violence'' or
a ``controlled substance offense'' by (i) providing that, in making
that determination, a court shall consider any element or alternative
means for meeting an element of the offense committed by the defendant,
as well as the conduct that formed the basis of the offense of
conviction, (ii) allowing courts to look at a wider range of sources
from the judicial record, beyond the statute of conviction, in
determining the conduct that formed the basis of the offense of
conviction, and (iii) making similar revisions to Sec. 2L1.2
(Unlawfully Entering or Remaining in the United States), as well as
conforming changes to the guidelines that use the terms ``crime of
violence'' and ``controlled substance offense'' and define these terms
by making specific reference to Sec. 4B1.2, and related issues for
comment; (B) three options to address the concern that certain robbery
offenses, such as Hobbs Act robbery, no longer constitute a ``crime of
violence'' under Sec. 4B1.2, as amended in 2016, because these
offenses do not meet either the generic definition of ``robbery'' or
the new guidelines definition of ``extortion,'' and related issues for
comment; (C) three options to address certain issues regarding the
commentary provision stating that the terms ``crime of violence'' and
``controlled substance offense'' include the offenses of aiding and
abetting, conspiring to commit, and attempting to commit a ``crime of
violence'' and a ``controlled substance offense,'' and related issues
for comment; and (D) revisions to the definition of ``controlled
substance offense'' in Sec. 4B1.2(b) to include: (i) Offenses
involving an offer to sell a controlled substance, and (ii) offenses
described in 46 U.S.C. Sec. 70503(a) and Sec. 70506(b), and a related
issue for comment;
[[Page 65401]]
(3) a multi-part proposed amendment addressing recently enacted
legislation and miscellaneous guideline issues, including (A)
amendments to Appendix A (Statutory Index) and the Commentary to Sec.
2N2.1 (Violations of Statutes and Regulations Dealing with Any Food,
Drug, Biological Product, Device, Cosmetic, Agricultural Product, or
Consumer Product) in response to the FDA Reauthorization Act of 2017,
Public Law 115-52 (Aug. 18, 2017), a technical correction to the
Commentary to Sec. 2N1.1 (Tampering or Attempting to Tamper Involving
Risk of Death or Bodily Injury), and a related issue for comment; (B)
amendments to Appendix A, Sec. 2A5.2 (Interference with Flight Crew
Member or Flight Attendant; Interference with Dispatch, Navigation,
Operation, or Maintenance of Mass Transportation Vehicle), as well as
the commentaries to Sec. 2A2.4 (Obstructing or Impeding Officers) and
Sec. 2X5.2 (Class A Misdemeanors (Not Covered by Another Specific
Offense Guideline)), in response to the FAA Reauthorization Act of
2018, Public Law 115-254 (Oct. 8, 2018), and a related issue for
comment; (C) amendments to Appendix A, Sec. 2G1.1 (Promoting a
Commercial Sex Act or Prohibited Sexual Conduct with an Individual
Other than a Minor), and 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), in response to the Allow States and Victims
to Fight Online Sex Trafficking Act of 2017, Public Law 115-164 (Apr.
11, 2018), and related issues for comment; (D) an amendment to
subsection (d) of Sec. 3D1.2 (Grouping of Closely Related Counts) to
provide that offenses covered by Sec. 2G1.3 are not grouped under that
subsection; and (E) an amendment to the Commentary to Sec. 5F1.7
(Shock Incarceration Program (Policy Statement)) to reflect the fact
that the Bureau of Prisons no longer operates a shock incarceration
program; and
(4) a proposed amendment to make various technical changes to the
Guidelines Manual, including (A) technical changes to reflect the
editorial reclassification of certain provisions previously contained
in the Appendix to Title 50, to new chapters 49 to 57 of Title 50 and
to other titles of the Code; (B) technical changes throughout the
Commentary to Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy), to, among other things,
reorganize in alphabetical order the controlled substances contained in
the tables therein to make them more user-friendly; (C) technical
changes to the commentaries to Sec. 2A4.2 (Demanding or Receiving
Ransom Money), Sec. 2A6.1 (Threatening or Harassing Communications;
Hoaxes; False Liens), and Sec. 2B3.2 (Extortion by Force or Threat of
Injury or Serious Damage), and to Appendix A, to provide references to
the specific applicable provisions of 18 U.S.C. Sec. 876; and (D)
clerical changes to the background commentaries to Sec. 1B1.11 (Use of
Guidelines Manual in Effect on Date of Sentencing (Policy Statement)),
Sec. 3D1.1 (Procedure for Determining Offense Level on Multiple
Counts), and Sec. 5G1.3 (Imposition of a Sentence on a Defendant
Subject to an Undischarged Term of Imprisonment or Anticipated State
Term of Imprisonment).
In addition, the Commission requests public comment regarding
whether, pursuant to 18 U.S.C. Sec. 3582(c)(2) and 28 U.S.C. Sec.
994(u), any proposed amendment published in this notice should be
included in subsection (d) of Sec. 1B1.10 as an amendment that may be
applied retroactively to previously sentenced defendants. The
Commission lists in Sec. 1B1.10(d) the specific guideline amendments
that the court may apply retroactively under 18 U.S.C. Sec.
3582(c)(2). The Background Commentary to Sec. 1B1.10 lists the purpose
of the amendment, the magnitude of the change in the guideline range
made by the amendment, and the difficulty of applying the amendment
retroactively to determine an amended guideline range under Sec.
1B1.10(b) as among the factors the Commission considers in selecting
the amendments included in Sec. 1B1.10(d). To the extent practicable,
public comment should address each of these factors.
The text of the proposed amendments and related issues for comment
are set forth below. Additional information pertaining to the proposed
amendments and issues for comment described in this notice may be
accessed through the Commission's website at www.ussc.gov.
Authority: 28 U.S.C. Sec. 994(a), (o), (p), (x); USSC Rules of
Practice and Procedure 2.2, 4.3, 4.4.
William H. Pryor Jr.,
Acting Chair.
PROPOSED AMENDMENTS TO THE SENTENCING GUIDELINES, POLICY STATEMENTS,
AND OFFICIAL COMMENTARY
1. Sec. 1B1.10
Synopsis of Proposed Amendment: This proposed amendment contains
two parts (Part A and Part B). The Commission is considering whether to
promulgate either or both of these parts, as they are not mutually
exclusive.
Part A of the proposed amendment is the result of the Commission's
consideration of miscellaneous issues, including possible amendments to
Sec. 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended
Guideline Range (Policy Statement)) in light of Koons v. United States,
138 S. Ct. 1783 (2018). See U.S. Sentencing Comm'n, ``Notice of Final
Priorities,'' 83 FR 43956 (Aug. 28, 2018). Part A would revise Sec.
1B1.10 in light of Koons.
Part B of the proposed amendment would resolve a circuit conflict
concerning the application of Sec. 1B1.10, pursuant to the
Commission's authority under 28 U.S.C. Sec. 991(b)(1)(B) and Braxton
v. United States, 500 U.S. 344 (1991). See U.S. Sentencing Comm'n,
``Notice of Final Priorities,'' 83 FR 43956 (Aug. 28, 2018)
(identifying resolution of circuit conflicts as a priority). An issue
for comment is also provided.
(A) Possible Amendments in Light of Koons v. United States
Synopsis of Proposed Amendment: Pursuant to 18 U.S.C. Sec.
3582(c), a court may modify a term of imprisonment if the defendant was
initially sentenced based on a sentencing range that was subsequently
lowered by a guideline amendment that the Commission has made
retroactive. Section 3582(c)(2) provides:
in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon
motion of the defendant or the Director of the Bureau of Prisons, or on
its own motion, the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that
they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.
[[Page 65402]]
18 U.S.C. Sec. 3582(c)(2).
A provision of the Sentencing Reform Act, 28 U.S.C. Sec. 994(u),
in turn, directs the Commission to determine when and to what extent
such modifications are appropriate. Section 994(a)(2)(C) of Title 28
also directs the Commission to promulgate ``general policy statements
regarding application of the guidelines or any other aspect of
sentencing or sentence implementation . . . including the appropriate
use of . . . the sentence modification provisions set forth in section
. . . 3582(c) of title 18.''
The policy statement at Sec. 1B1.10 (Reduction in Term of
Imprisonment as a Result of Amended Guideline Range (Policy Statement))
implements the Commission's authority and responsibilities under these
statutory provisions. Section 1B1.10(a) sets forth the eligibility
requirements for a reduction in the defendant's term of imprisonment
under 18 U.S.C. Sec. 3582(c)(2) and the policy statement.
Specifically, a defendant is eligible for a sentence reduction under
the policy statement only if an amendment listed in Sec. 1B1.10(d)
``lower[ed] the defendant's applicable guideline range.'' The
``applicable guideline range'' is the range ``that corresponds to the
offense level and criminal history category determined pursuant to
Sec. 1B1.1(a), which is determined before consideration of any
departure provision in the Guidelines Manual or any variance.'' USSG
Sec. 1B1.10, comment. (n.1(A)).
Section 1B1.10(b)(1) instructs that in determining whether, and to
what extent, a reduction is warranted, the court shall determine the
``amended guideline range'' that would have applied if the amendments
listed in Sec. 1B1.10(d) had been in effect when the defendant was
sentenced. In making that determination, the court shall substitute
only the amendments listed in subsection (d) for the corresponding
guideline provisions that were in effect at the original sentencing,
``leav[ing] all other guideline application decisions unaffected.''
Subsection (b)(2)(A) further instructs that the court cannot reduce the
defendant's term of imprisonment below the bottom of the amended
guideline range. However, subsection (b)(2)(B) provides an exception to
this limitation: if the term of imprisonment originally imposed was
less than the term provided by the then applicable guideline range
``pursuant to a government motion to reflect the defendant's
substantial assistance to authorities, a reduction comparably less than
the amended guideline range determined under [Sec. 1B1.10(b)(1)] may
be appropriate.''
Section 1B1.10(c) provides a special rule for determining the
amended guideline range if the defendant was subject to a statutory
mandatory minimum penalty when originally sentenced but was relieved of
that mandatory minimum because the defendant provided substantial
assistance to the government. Under the special rule, the amended
guideline range ``shall be determined without regard to the operation
of'' Sec. 5G1.1 (Sentencing on a Single Count of Conviction) and Sec.
5G1.2 (Sentencing on Multiple Counts of Conviction), the guidelines
providing that a statutory mandatory minimum penalty trumps the
otherwise applicable guideline range.
Recently, the Supreme Court decided Koons v. United States, 138 S.
Ct. 1783 (June 4, 2018), which held that certain defendants are
statutorily ineligible for a sentence reduction under 18 U.S.C. Sec.
3582(c)(2). Specifically, Koons held that defendants whose initial
guideline ranges fell entirely below a statutory mandatory minimum
penalty, but who were originally sentenced below that penalty pursuant
to a government motion for substantial assistance (``below
defendants''), are ineligible for sentence reductions under section
3582(c)(2). See Koons, 138 S. Ct. at 1786-87. The Court reasoned that
these below defendants' original sentences were not ``based on'' their
guideline ranges but were instead ``based on'' their statutory minimum
penalties and the substantial assistance they provided to the
government. Id. (quoting 18 U.S.C. Sec. 3582(c)(2)). As a result,
below defendants do not satisfy the threshold requirement in section
3582(c)(2) that they be ``initially sentenced `based on a sentencing
range' that was later lowered by the [Commission].'' Id.
Koons rested on the defendants' statutory ineligibility for a
sentence reduction under 18 U.S.C. Sec. 3582(c)(2) and did not analyze
the policy statement at Sec. 1B1.10 or the correct application of the
guidelines in sentence reduction proceedings. In addition, Koons did
not address whether two other categories of defendants whose cases
involve mandatory minimum sentences are eligible for relief: (1) those
with guideline ranges that straddle the mandatory minimum penalty
(``straddle defendants'') and (2) those with guideline ranges
completely above the mandatory minimum penalty (``above defendants'').
Part A of the proposed amendment would revise Sec. 1B1.10 in light
of the Supreme Court decision in Koons.
First, Part A would revise subsection (a) and its corresponding
commentary to clarify that a defendant is eligible for a reduction
under the policy statement only if the defendant was ``sentenced based
on a guideline range.'' Subsection (a)(1) would be revised to closely
track section 3582(c)'s requirement that the defendant must be
``sentenced based on a guideline range.'' The proposed amendment would
revise subsection (a)(2) to affirmatively state the requirements for
eligibility rather than exclusions from eligibility. It would also add
as a requirement for eligibility that the defendant was ``sentenced
based on a guideline range.''
Second, Part A would revise subsection (b)(1) to clarify that the
eligibility requirement in renumbered subsection (a)(2)(c)--that the
amendment has the effect of lowering the defendant's applicable
guideline range--is determined by comparing the defendant's applicable
guideline range at original sentencing to the amended guideline range,
as calculated in the manner described in subsection (b)(1).
Finally, Part A provides three options for revising subsection (c),
each of which would result in a different sentencing outcome for the
defendants who remain eligible for a sentence reduction following
Koons.
Option 1 would make no change to subsection (c). As a result, for
statutorily eligible defendants (straddle and above defendants) who
received relief from a statutory mandatory minimum penalty because they
provided substantial assistance, the amended guideline range would
continue to be determined without regard to the operation of Sec. Sec.
5G1.1 and 5G1.2. This option would permit courts to give statutorily
eligible defendants the largest possible sentence reductions for their
substantial assistance. It would, however, treat straddle and above
defendants more favorably than below defendants, who are statutorily
ineligible for any reduction. It would also treat straddle and above
defendants more favorably than similarly situated defendants who are
being sentenced for the first time, because Sec. Sec. 5G1.1 and 5G1.2
would apply to defendants facing initial sentencing.
Option 2 would provide that the amended guideline range is
determined after operation of Sec. Sec. 5G1.1 and 5G1.2. As a result,
straddle defendants would not receive any reduction and above
defendants would receive smaller reductions than they do under current
subsection (c). This option would treat straddle and above defendants
the same as below defendants. It would also treat all three categories
of defendants the
[[Page 65403]]
same as similarly situated defendants facing initial sentencing.
Option 3 would provide that the amended guideline range is
restricted by Sec. Sec. 5G1.1 and 5G1.2 only if it was so restricted
at the time the defendant was originally sentenced. As a result,
straddle defendants would not receive any reduction. Above defendants
would be eligible for the largest possible reduction, as they are under
current subsection (c). This option would, however, treat above
defendants more favorably than straddle and below defendants, and more
favorably than similarly situated defendants facing initial sentencing.
Part A of the proposed amendment also makes conforming changes to
the commentary.
Proposed Amendment:
Section 1B1.10 is amended--
in subsection (a)(1) by striking ``is serving a term of
imprisonment, and the guideline range applicable to that defendant has
subsequently been lowered'' and inserting ``was sentenced to a term of
imprisonment based on a guideline range that has subsequently been
lowered'';
in subsection (a)(2) by striking the following:
``Exclusions.--A reduction in the defendant's term of imprisonment
is not consistent with this policy statement and therefore is not
authorized under 18 U.S.C. Sec. 3582(c)(2) if--
(A) none of the amendments listed in subsection (d) is applicable
to the defendant; or
(B) an amendment listed in subsection (d) does not have the effect
of lowering the defendant's applicable guideline range.'',
and inserting the following:
``Eligibility.--A defendant is eligible for a reduction in the
defendant's term of imprisonment under 18 U.S.C. Sec. 3582(c) and this
policy statement only if--
(A) the defendant was sentenced based on a guideline range;
(B) an amendment listed in subsection (d) is applicable to the
defendant; and
(C) that amendment has the effect of lowering the defendant's
applicable guideline range.'';
[Option 1 (which also includes changes to commentary):
and in subsection (b)(1), by striking ``In determining whether, and
to what extent, a reduction in the defendant's term of imprisonment
under 18 U.S.C. Sec. 3582(c)(2) and this policy statement is
warranted,'' and inserting ``To determine whether the defendant is
eligible under subsection (a)(2)(C) and the extent of any permissible
reduction in the defendant's term of imprisonment,'', and by striking
``leave all other guideline application decisions unaffected'' and
inserting ``leave all other guideline application decisions unaffected,
except as provided in subsection (c) below''.]
[Option 2 (which also includes changes to commentary):
in subsection (b)(1), by striking ``In determining whether, and to
what extent, a reduction in the defendant's term of imprisonment under
18 U.S.C. Sec. 3582(c)(2) and this policy statement is warranted,''
and inserting ``To determine whether the defendant is eligible under
subsection (a)(2)(C) and the extent of any permissible reduction in the
defendant's term of imprisonment,'', and by striking ``leave all other
guideline application decisions unaffected'' and inserting ``leave all
other guideline application decisions unaffected, except as provided in
subsection (c) below'';
and in subsection (c) by striking ``without regard to the operation
of Sec. 5G1.1 (Sentencing on a Single Count of Conviction)'' and
inserting ``after operation of Sec. 5G1.1 (Sentencing on a Single
Count of Conviction)''.]
[Option 3 (which also includes changes to commentary):
in subsection (b)(1) by striking ``In determining whether, and to
what extent, a reduction in the defendant's term of imprisonment under
18 U.S.C. Sec. 3582(c)(2) and this policy statement is warranted,''
and inserting ``To determine whether the defendant is eligible under
subsection (a)(2)(C) and the extent of any permissible reduction in the
defendant's term of imprisonment,'';
and in subsection (c) by striking ``the amended guideline range
shall be determined without regard to the operation of Sec. 5G1.1
(Sentencing on a Single Count of Conviction) and Sec. 5G1.2
(Sentencing on Multiple Counts of Conviction)'' and inserting ``the
court shall not apply Sec. 5G1.1 (Sentencing on a Single Count of
Conviction) or Sec. 5G1.2 (Sentencing on Multiple Counts of
Conviction) to replace or restrict the amended guideline range unless
Sec. 5G1.1 or Sec. 5G1.2 operated to restrict the guideline range at
the time the defendant was sentenced''.]
The Commentary to Sec. 1B1.10 captioned ``Application Notes'' is
amended--
in Note 1 in paragraph (A) by striking the following:
``Eligibility.--Eligibility for consideration under 18 U.S.C. Sec.
3582(c)(2) is triggered only by an amendment listed in subsection (d)
that lowers the applicable guideline range (i.e., the guideline range
that corresponds to the offense level and criminal history category
determined pursuant to Sec. 1B1.1(a), which is determined before
consideration of any departure provision in the Guidelines Manual or
any variance). Accordingly, a reduction in the defendant's term of
imprisonment is not authorized under 18 U.S.C. Sec. 3582(c)(2) and is
not consistent with this policy statement if: (i) none of the
amendments listed in subsection (d) is applicable to the defendant; or
(ii) an amendment listed in subsection (d) is applicable to the
defendant but the amendment does not have the effect of lowering the
defendant's applicable guideline range because of the operation of
another guideline or statutory provision (e.g., a statutory mandatory
minimum term of imprisonment).'',
and inserting the following:
``Eligibility.--Under 18 U.S.C. Sec. 3582(c)(2), a defendant may
obtain a reduction in his term of imprisonment only if the defendant
was originally sentenced `based on a sentencing range that has
subsequently lowered by the Sentencing Commission.' Subsection
(a)(2)(A) therefore provides that a defendant is eligible for a
reduction under the statute and this policy statement only if `the
defendant was sentenced based on a guideline range.' For purposes of 18
U.S.C. Sec. 3582(c)(2), a defendant was sentenced `based on a
guideline range' only if that range played a relevant part in the
framework that the sentencing court used in imposing the sentence. See
Hughes v. United States, 138 S. Ct. 1765 (2018). Accordingly, a
defendant is not sentenced `based on a guideline range' if, pursuant to
Sec. 5G1.1(b), the guideline range that would otherwise have applied
was superseded, and the statutorily required minimum sentence became
the defendant's guideline sentence. See Koons v. United States, 138 S.
Ct. 1783 (2018). If a defendant is ineligible for a reduction under
subsection (a)(2)(A), the court shall not apply any other provisions of
this policy statement and may not order a reduction in the defendant's
term of imprisonment.
Subsection (a)(2)(C) further provides that a defendant is eligible
for a reduction in his term of imprisonment only if an amendment listed
in subsection (d) has the effect of lowering the defendant's applicable
guideline range. The `applicable guideline range' is the guideline
range that corresponds to the offense level and criminal history
category determined pursuant to Sec. 1B1.1(a), which is determined
before consideration of any departure provision in the Guidelines
Manual or
[[Page 65404]]
any variance. Accordingly, a defendant is not eligible for a reduction
if an amendment listed in subsection (d) is applicable to the defendant
but the amendment does not have the effect of lowering the defendant's
applicable guideline range because of the operation of another
guideline or statutory provision (e.g., a statutory mandatory minimum
term of imprisonment). To determine whether a defendant is eligible for
a reduction under subsection (a)(2)(C), and the permissible amount of
the reduction, if any, the court must first determine the defendant's
amended guideline range, as provided in subsection (b)(1).'';
[Option 1 and Option 2 would also include the following changes to
Notes 2 and 3:
in Note 2 by striking ``All other guideline application decisions
remain unaffected'' and inserting ``All other guideline application
decisions remain unaffected, except as provided in subsection (c)'';
in Note 3 by striking ``limit the extent to which the court may
reduce the defendant's term of imprisonment'' and inserting ``limit the
extent to which the court may reduce an otherwise eligible defendant's
term of imprisonment'';]
[Option 1 continued:
and in Note 4(B)--
by striking ``Ordinarily, Sec. 5G1.1 would operate to restrict the
amended guideline range to precisely 120 months'' and inserting
``Ordinarily, Sec. 5G1.1 would operate to replace the amended
guideline range with a guideline sentence of precisely 120 months'';
and by striking ``the amended guideline range is considered to be
87 to 108 months (i.e., unrestricted by operation of Sec. 5G1.1 and
the statutory minimum of 120 months)'' and inserting ``the amended
guideline range is considered to be 87 to 108 months (i.e., not
replaced by operation of Sec. 5G1.1 with the statutory minimum of 120
months)''.]
[Option 2 continued:
and in Note 4 by striking the following:
``Application of Subsection (c).--As stated in subsection (c), if
the case involves a statutorily required minimum sentence and the court
had the authority to impose a sentence below the statutorily required
minimum sentence pursuant to a government motion to reflect the
defendant's substantial assistance to authorities, then for purposes of
this policy statement the amended guideline range shall be determined
without regard to the operation of Sec. 5G1.1 (Sentencing on a Single
Count of Conviction) and Sec. 5G1.2 (Sentencing on Multiple Counts of
Conviction). For example:
(A) Defendant A is subject to a mandatory minimum term of
imprisonment of 120 months. The original guideline range at the time of
sentencing was 135 to 168 months, which is entirely above the mandatory
minimum, and the court imposed a sentence of 101 months pursuant to a
government motion to reflect the defendant's substantial assistance to
authorities. The court determines that the amended guideline range as
calculated on the Sentencing Table is 108 to 135 months. Ordinarily,
Sec. 5G1.1 would operate to restrict the amended guideline range to
120 to 135 months, to reflect the mandatory minimum term of
imprisonment. For purposes of this policy statement, however, the
amended guideline range remains 108 to 135 months.
To the extent the court considers it appropriate to provide a
reduction comparably less than the amended guideline range pursuant to
subsection (b)(2)(B), Defendant A's original sentence of 101 months
amounted to a reduction of approximately 25 percent below the minimum
of the original guideline range of 135 months. Therefore, an amended
sentence of 81 months (representing a reduction of approximately 25
percent below the minimum of the amended guideline range of 108 months)
would amount to a comparable reduction and may be appropriate.
(B) Defendant B is subject to a mandatory minimum term of
imprisonment of 120 months. The original guideline range at the time of
sentencing (as calculated on the Sentencing Table) was 108 to 135
months, which was restricted by operation of Sec. 5G1.1 to a range of
120 to 135 months. See Sec. 5G1.1(c)(2). The court imposed a sentence
of 90 months pursuant to a government motion to reflect the defendant's
substantial assistance to authorities. The court determines that the
amended guideline range as calculated on the Sentencing Table is 87 to
108 months. Ordinarily, Sec. 5G1.1 would operate to restrict the
amended guideline range to precisely 120 months, to reflect the
mandatory minimum term of imprisonment. See Sec. 5G1.1(b). For
purposes of this policy statement, however, the amended guideline range
is considered to be 87 to 108 months (i.e., unrestricted by operation
of Sec. 5G1.1 and the statutory minimum of 120 months).
To the extent the court considers it appropriate to provide a
reduction comparably less than the amended guideline range pursuant to
subsection (b)(2)(B), Defendant B's original sentence of 90 months
amounted to a reduction of approximately 25 percent below the original
guideline range of 120 months. Therefore, an amended sentence of 65
months (representing a reduction of approximately 25 percent below the
minimum of the amended guideline range of 87 months) would amount to a
comparable reduction and may be appropriate.'',
and inserting the following:
``Application of Subsection (c).--As stated in subsection (c), if
the case involves a statutorily required minimum sentence and the court
had the authority to impose a sentence below the statutorily required
minimum sentence pursuant to a government motion to reflect the
defendant's substantial assistance to authorities, then for purposes of
this policy statement the amended guideline range shall be determined
after operation of Sec. 5G1.1 (Sentencing on a Single Count of
Conviction) and Sec. 5G1.2 (Sentencing on Multiple Counts of
Conviction). For example:
(A) Defendant A is subject to a mandatory minimum term of
imprisonment of 120 months. The original guideline range at the time of
sentencing was 135 to 168 months, which is entirely above the mandatory
minimum, and the court imposed a sentence of 101 months pursuant to a
government motion to reflect the defendant's substantial assistance to
authorities. The court determines that the amended guideline range as
calculated on the Sentencing Table is 108 to 135 months. For purposes
of this policy statement, the amended guideline range is considered to
be 120 to 135 months (i.e., restricted by operation of Sec.
5G1.1(c)(2) to reflect the statutory minimum of 120 months).
To the extent the court considers it appropriate to provide a
reduction comparably less than the amended guideline range pursuant to
subsection (b)(2)(B), Defendant A's original sentence of 101 months
amounted to a reduction of approximately 25 percent below the minimum
of the original guideline range of 135 months. Therefore, an amended
sentence of 90 months (representing a reduction of approximately 25
percent below the minimum of the amended guideline range of 120 months)
would amount to a comparable reduction and may be appropriate.
(B) Defendant B is subject to a mandatory minimum term of
imprisonment of 120 months. The original guideline range at the time of
sentencing (as calculated on the Sentencing Table) was 108 to 135
[[Page 65405]]
months, which was restricted by operation of Sec. 5G1.1 to a range of
120 to 135 months. See Sec. 5G1.1(c)(2). The court imposed a sentence
of 90 months pursuant to a government motion to reflect the defendant's
substantial assistance to authorities. The court determines that the
amended guideline range as calculated on the Sentencing Table is 87 to
108 months. For purposes of this policy statement, Sec. 5G1.1 would
replace the amended guideline range as calculated on the Sentencing
Table with a guideline sentence of precisely 120 months, to reflect the
mandatory minimum term of imprisonment. See Sec. 5G1.1(b).
To the extent the court considers it appropriate to provide a
reduction comparably less than the amended guideline range pursuant to
subsection (b)(2)(B), Defendant B's original sentence of 90 months
amounted to a reduction of approximately 25 percent below the original
guideline range of 120 months. However, subsection (b)(2)(B) precludes
this defendant from receiving any further reduction, because the point
from which any comparable reduction would be determined has not
changed; the minimum of the original guideline range (120 months) and
the amended guideline range (120 months) are the same, so any
comparable reduction that may be appropriate under subsection (b)(2)(B)
would be equivalent to the reduction Defendant B already received in
the original sentence of 90 months.''.]
[Option 3 continued:
and in Note 4 by striking the following:
``Application of Subsection (c).--As stated in subsection (c), if
the case involves a statutorily required minimum sentence and the court
had the authority to impose a sentence below the statutorily required
minimum sentence pursuant to a government motion to reflect the
defendant's substantial assistance to authorities, then for purposes of
this policy statement the amended guideline range shall be determined
without regard to the operation of Sec. 5G1.1 (Sentencing on a Single
Count of Conviction) and Sec. 5G1.2 (Sentencing on Multiple Counts of
Conviction). For example:
(A) Defendant A is subject to a mandatory minimum term of
imprisonment of 120 months. The original guideline range at the time of
sentencing was 135 to 168 months, which is entirely above the mandatory
minimum, and the court imposed a sentence of 101 months pursuant to a
government motion to reflect the defendant's substantial assistance to
authorities. The court determines that the amended guideline range as
calculated on the Sentencing Table is 108 to 135 months. Ordinarily,
Sec. 5G1.1 would operate to restrict the amended guideline range to
120 to 135 months, to reflect the mandatory minimum term of
imprisonment. For purposes of this policy statement, however, the
amended guideline range remains 108 to 135 months.
To the extent the court considers it appropriate to provide a
reduction comparably less than the amended guideline range pursuant to
subsection (b)(2)(B), Defendant A's original sentence of 101 months
amounted to a reduction of approximately 25 percent below the minimum
of the original guideline range of 135 months. Therefore, an amended
sentence of 81 months (representing a reduction of approximately 25
percent below the minimum of the amended guideline range of 108 months)
would amount to a comparable reduction and may be appropriate.
(B) Defendant B is subject to a mandatory minimum term of
imprisonment of 120 months. The original guideline range at the time of
sentencing (as calculated on the Sentencing Table) was 108 to 135
months, which was restricted by operation of Sec. 5G1.1 to a range of
120 to 135 months. See Sec. 5G1.1(c)(2). The court imposed a sentence
of 90 months pursuant to a government motion to reflect the defendant's
substantial assistance to authorities. The court determines that the
amended guideline range as calculated on the Sentencing Table is 87 to
108 months. Ordinarily, Sec. 5G1.1 would operate to restrict the
amended guideline range to precisely 120 months, to reflect the
mandatory minimum term of imprisonment. See Sec. 5G1.1(b). For
purposes of this policy statement, however, the amended guideline range
is considered to be 87 to 108 months (i.e., unrestricted by operation
of Sec. 5G1.1 and the statutory minimum of 120 months).
To the extent the court considers it appropriate to provide a
reduction comparably less than the amended guideline range pursuant to
subsection (b)(2)(B), Defendant B's original sentence of 90 months
amounted to a reduction of approximately 25 percent below the original
guideline range of 120 months. Therefore, an amended sentence of 65
months (representing a reduction of approximately 25 percent below the
minimum of the amended guideline range of 87 months) would amount to a
comparable reduction and may be appropriate.'',
and inserting the following:
``Application of Subsection (c).--As stated in subsection (c), if
the case involves a statutorily required minimum sentence and the court
had the authority to impose a sentence below the statutorily required
minimum sentence pursuant to a government motion to reflect the
defendant's substantial assistance to authorities, then for purposes of
this policy statement the court shall not apply Sec. 5G1.1 (Sentencing
on a Single Count of Conviction) or Sec. 5G1.2 (Sentencing on Multiple
Counts of Conviction) to replace or restrict the amended guideline
range unless Sec. 5G1.1 or Sec. 5G1.2 operated to restrict the
guideline range at the time the defendant was sentenced. For example:
(A) Defendant A is subject to a mandatory minimum term of
imprisonment of 120 months. The original guideline range at the time of
sentencing was 135 to 168 months, which is entirely above the mandatory
minimum, and the court imposed a sentence of 101 months pursuant to a
government motion to reflect the defendant's substantial assistance to
authorities. The original range of 135 to 168 months was entirely above
the mandatory minimum, so Sec. 5G1.1 did not operate to replace or
restrict that range. The court determines that the amended guideline
range as calculated on the Sentencing Table is 108 to 135 months.
Ordinarily, Sec. 5G1.1 would operate to restrict the amended guideline
range to 120 to 135 months, to reflect the mandatory minimum term of
imprisonment. For purposes of this policy statement, however, the
amended guideline range remains 108 to 135 months. The court does not
apply Sec. 5G1.1 to the amended guideline range because Sec. 5G1.1
was not applied when the defendant was originally sentenced.
To the extent the court considers it appropriate to provide a
reduction comparably less than the amended guideline range pursuant to
subsection (b)(2)(B), Defendant A's original sentence of 101 months
amounted to a reduction of approximately 25 percent below the minimum
of the original guideline range of 135 months. Therefore, an amended
sentence of 81 months (representing a reduction of approximately 25
percent below the minimum of the amended guideline range of 108 months)
would amount to a comparable reduction and may be appropriate.
(B) Defendant B is subject to a mandatory minimum term of
imprisonment of 120 months. The original guideline range at the time of
sentencing (as calculated on the Sentencing Table) was 108 to 135
[[Page 65406]]
months, which was restricted by operation of Sec. 5G1.1 to a range of
120 to 135 months. See Sec. 5G1.1(c)(2). The court imposed a sentence
of 90 months pursuant to a government motion to reflect the defendant's
substantial assistance to authorities. The court determines that the
amended guideline range as calculated on the Sentencing Table is 87 to
108 months. Section 5G1.1 would operate to replace the amended
guideline range as calculated on the Sentencing Table with a guideline
sentence of precisely 120 months, to reflect the mandatory minimum term
of imprisonment. See Sec. 5G1.1(b). The court should apply Sec. 5G1.1
to the amended guideline range because Sec. 5G1.1 was applied when the
defendant was originally sentenced.
To the extent the court considers it appropriate to provide a
reduction comparably less than the amended guideline range pursuant to
subsection (b)(2)(B), Defendant B's original sentence of 90 months
amounted to a reduction of approximately 25 percent below the original
guideline range of 120 months. However, subsection (b)(2)(B) precludes
this defendant from receiving any further reduction, because the point
from which any comparable reduction would be determined has not
changed; the minimum of the original guideline range (120 months) and
the minimum of the amended range (120 months) are the same, so any
comparable reduction that may be appropriate under subsection (b)(2)(B)
would be equivalent to the reduction Defendant B already received in
the original sentence of 90 months.''.]
(B) Resolution of Circuit Conflict
Synopsis of Proposed Amendment: In addition to the issues raised by
Koons v. United States, 138 S. Ct. 1783 (2018), a circuit conflict has
emerged regarding the application of Sec. 1B1.10(b)(2)(B). Section
1B1.10(b)(2)(A) instructs that, in acting on a motion under 18 U.S.C.
Sec. 3582(c)(2), a court cannot reduce a defendant's term of
imprisonment to a term that is less than the amended guideline minimum,
as calculated under Sec. 1B1.10(b)(1). However, Sec. 1B1.10(b)(2)(B)
provides an exception to this limitation: if the term of imprisonment
originally imposed was less than the applicable guideline range at the
time of sentencing ``pursuant to a government motion to reflect the
defendant's substantial assistance to authorities, a reduction
comparably less than the amended guideline range determined under
[Sec. 1B1.10(b)(1)] may be appropriate.''
Circuit courts have disagreed about whether Sec. 1B1.10(b)(2)(B)
allows a court to reduce a sentence below the amended guideline range
to reflect departures other than substantial assistance that the
defendant received at his original sentencing or whether any sentence
reduction may reflect only the departure amount attributable to
substantial assistance. The Sixth and Eleventh Circuits have held that
a court may reduce a sentence below the amended guideline range by an
amount attributable only to the substantial assistance departure. See
United States v. Taylor, 815 F.3d 248 (6th Cir. 2016); United States v.
Marroquin-Medina, 817 F.3d 1285 (11th Cir. 2016); see also United
States v. Wright, 562 F. App'x 885 (11th Cir. 2014). The Seventh and
Ninth Circuits have held that, if a defendant received a substantial
assistance departure, a court may reduce the defendant's sentence
further below the amended guideline minimum to reflect other departures
or variances the defendant received, in addition to the substantial
assistance departure. See United States v. Phelps, 823 F.3d 1084 (7th
Cir. 2016); United States v. D.M., 869 F.3d 1133 (9th Cir. 2017).
Part B of the proposed amendment would revise Application Note 3 of
the Commentary to Sec. 1B1.10 (Reduction in Term of Imprisonment as a
Result of Amended Guideline Range (Policy Statement)) to resolve this
circuit conflict. Part B provides two options for resolving the
conflict.
Option 1 would adopt the approach of the Sixth and Eleventh
Circuits. It would revise Application Note 3 to state that in a case in
which the exception provided by subsection (b)(2)(B) applies and the
defendant received both a substantial assistance departure and at least
one other departure or variance, a reduction ``comparably less'' than
the defendant's amended guideline range may take into account only the
substantial assistance departure.
Option 2 would adopt the approach of the Seventh and Ninth
Circuits. It would revise Application Note 3 to state that in a case in
which the exception provided by subsection (b)(2)(B) applies and the
defendant received both a substantial assistance departure and at least
one other departure or variance, a reduction ``comparably less'' than
the amended guideline range may take into account all the departures
and variances that the defendant received.
An issue for comment is also provided.
Proposed Amendment:
The Commentary to Sec. 1B1.10 captioned ``Application Notes'' is
amended in Note 3 by striking the following:
``Subsection (b)(2)(B) provides an exception to this limitation,
which applies if the term of imprisonment imposed was less than the
term of imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing pursuant to a government motion to
reflect the defendant's substantial assistance to authorities. In such
a case, the court may reduce the defendant's term, but the reduction is
not limited by subsection (b)(2)(A) to the minimum of the amended
guideline range. Instead, as provided in subsection (b)(2)(B), the
court may, if appropriate, provide a reduction comparably less than the
amended guideline range. Thus, if the term of imprisonment imposed in
the example provided above was 56 months pursuant to a government
motion to reflect the defendant's substantial assistance to authorities
(representing a downward departure of 20 percent below the minimum term
of imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing), a reduction to a term of
imprisonment of 41 months (representing a reduction of approximately 20
percent below the minimum term of imprisonment provided by the amended
guideline range) would amount to a comparable reduction and may be
appropriate.
The provisions authorizing such a government motion are Sec. 5K1.1
(Substantial Assistance to Authorities) (authorizing, upon government
motion, a downward departure based on the defendant's substantial
assistance); 18 U.S.C. Sec. 3553(e) (authorizing the court, upon
government motion, to impose a sentence below a statutory minimum to
reflect the defendant's substantial assistance); and Fed. R. Crim. P.
35(b) (authorizing the court, upon government motion, to reduce a
sentence to reflect the defendant's substantial assistance).'',
and inserting the following:
``Subsection (b)(2)(B) provides an exception to this limitation,
which applies if the term of imprisonment imposed was less than the
term of imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing pursuant to a government motion to
reflect the defendant's substantial assistance to authorities. The
provisions authorizing such a government motion are Sec. 5K1.1
(Substantial Assistance to Authorities) (authorizing, upon government
motion, a downward departure based on the defendant's substantial
assistance); 18 U.S.C. Sec. 3553(e) (authorizing the court, upon
government motion, to impose a sentence below a statutory minimum to
reflect the defendant's substantial
[[Page 65407]]
assistance); and Fed. R. Crim. P. 35(b) (authorizing the court, upon
government motion, to reduce a sentence to reflect the defendant's
substantial assistance).
In a case in which the exception provided by subsection (b)(2)(B)
applies, the court may reduce the defendant's term, but the reduction
is not limited by subsection (b)(2)(A) to the minimum of the amended
guideline range. Instead, as provided in subsection (b)(2)(B), the
court may, if appropriate, provide a reduction comparably less than the
amended guideline range.
[Option 1:
If the term of imprisonment imposed was less than the term of
imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing pursuant to one or more departures
or variances in addition to a substantial assistance departure, the
reduction under subsection (b)(2)(B) may take into account only the
substantial assistance departure. Thus, if the term of imprisonment
imposed in the example above was 56 months (representing a downward
departure of 20 percent below the minimum of the guideline range
applicable to the defendant at the time of sentencing), and that
departure was solely pursuant to a government motion to reflect the
defendant's substantial assistance, then a reduction of approximately
20 percent below the minimum of the amended guideline range, to a term
of imprisonment of 41 months, would be a comparable reduction and may
be appropriate. If, however, the 56-month term of imprisonment
reflected both a departure of 10 percent below the minimum of the
applicable guideline range pursuant to a substantial-assistance motion
and a variance of an additional 10 percent below the applicable range
because of the history and characteristics of the defendant, then only
a reduction of approximately 10 percent (representing solely the
departure for substantial assistance), to a term of imprisonment of 46
months, would be a comparable reduction and may be appropriate.]
[Option 2:
If the term of imprisonment imposed was less than the term of
imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing pursuant to one or more departures
or variances in addition to a substantial assistance departure, the
reduction under subsection (b)(2)(B) may take into account all the
departures and variances that the defendant received. Thus, if the term
of imprisonment imposed in the example above was 56 months
(representing downward departures or variances totaling 20 percent
below the minimum term of the guideline range applicable to the
defendant at the time of sentencing), and at least part of that below-
guideline sentence was pursuant to a government motion to reflect the
defendant's substantial assistance, then a reduction of approximately
20 percent below the minimum of the amended guideline range, to a term
of imprisonment of 41 months, would be a comparable reduction and may
be appropriate.]''.
Issue for Comment:
1. Option 2 of Part B of the proposed amendment would revise
Application Note 3 of the Commentary to Sec. 1B1.10 (Reduction in Term
of Imprisonment as a Result of Amended Guideline Range (Policy
Statement)) to state that where the exception provided by Sec.
1B1.10(b)(2)(B) applies and the defendant received both a substantial
assistance departure and at least one other departure or variance, a
reduction ``comparably less'' than the defendant's amended guideline
range may take into account not only the substantial assistance
departure but also any other departure or variance that the defendant
received. If the Commission adopts this approach, should the Commission
limit the departures and variances that may be considered? For example,
should the Commission provide that a comparable reduction may take into
account only departures and not variances? Should the Commission
provide that a comparable reduction may take into account only certain,
specified types of departures or variances? If so, which ones? Or
should the Commission provide that a comparable reduction generally may
take into account departures and variances other than substantial
assistance, but one or more particular types of departures or variances
may not be considered? If so, which ones?
2. Career Offender
Synopsis of Proposed Amendment: This proposed amendment is a result
of the Commission's consideration of possible amendments to Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1) to (A) allow courts to
consider the actual conduct of the defendant, rather than only the
elements of the offense (i.e., ``categorical approach''), in
determining whether an offense is a crime of violence or a controlled
substance offense; and (B) address various application issues,
including the meaning of ``robbery'' and ``extortion,'' and the
treatment of inchoate offenses and offenses involving an offer to sell
a controlled substance. See U.S. Sentencing Comm'n, ``Notice of Final
Priorities,'' 83 FR 43956 (Aug. 28, 2018). The proposed amendment
contains four parts (Parts A through D). The Commission is considering
whether to promulgate any or all of these parts, as they are not
mutually exclusive.
Part A of the proposed amendment would amend Sec. 4B1.2 to
establish that the categorical approach and modified categorical
approach do not apply in determining whether a conviction is a ``crime
of violence'' or a ``controlled substance offense.'' Specifically, it
would provide that, in making that determination, a court shall
consider any element or alternative means for meeting an element of the
offense committed by the defendant, as well as the conduct that formed
the basis of the offense of conviction. In addition, Part A would allow
courts to look at a wider range of sources from the judicial record,
beyond the statute of conviction, in determining the conduct that
formed the basis of the offense of conviction. Part A would also make
similar revisions to Sec. 2L1.2 (Unlawfully Entering or Remaining in
the United States), as well as conforming changes to the guidelines
that use the terms ``crime of violence'' and ``controlled substance
offense'' and define these terms by making specific reference to Sec.
4B1.2. Issues for comment are also provided.
Part B of the proposed amendment would address the concern that
certain robbery offenses, such as Hobbs Act robbery, no longer
constitute a ``crime of violence'' under Sec. 4B1.2, as amended in
2016, because these offenses do not meet either the generic definition
of ``robbery'' or the new guidelines definition of ``extortion.'' Three
options are presented. Issues for comment are also provided.
Part C of the proposed amendment would amend Sec. 4B1.2 to address
certain issues regarding the commentary provision stating that the
terms ``crime of violence'' and ``controlled substance offense''
include the offenses of aiding and abetting, conspiring to commit, and
attempting to commit a ``crime of violence'' and a ``controlled
substance offense.'' Three options are presented. Issues for comment
are also provided.
Part D of the proposed amendment would amend the definition of
``controlled substance offense'' in Sec. 4B1.2(b) to include offenses
involving an offer to sell a controlled substance and offenses
described in 46 U.S.C. Sec. 70503(a) and Sec. 70506(b). An issue for
comment is also provided.
[[Page 65408]]
(A) Categorical Approach
Synopsis of Proposed Amendment: A number of statutes and guidelines
provide enhanced penalties for defendants convicted of offenses that
fit within a particular category of crimes. Courts typically determine
whether a conviction fits within a particular category of crimes
through the application of the ``categorical approach'' set forth by
the Supreme Court. The Supreme Court cases adopting and applying the
categorical approach have involved statutory provisions (e.g., 18
U.S.C. Sec. 924(e)) rather than guidelines. However, courts have
applied the categorical approach to guideline provisions, even though
the guidelines do not expressly require such an analysis. Specifically,
courts have used the categorical approach to determine if a conviction
is a ``crime of violence'' or a ``controlled substance offense'' for
purposes of applying the career offender guideline at Sec. 4B1.1
(Career Offender). This form of analysis limits the range of
information a sentencing court may consider in making such
determination to the statute under which the defendant sustained the
conviction (and, in certain cases, judicial documents surrounding that
conviction).
In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court
held that to determine whether a prior conviction qualifies as an
enumerated ``violent felony'' under the Armed Career Criminal Act
(ACCA), courts must use ``a formal categorical approach, looking only
to the statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions.'' Taylor, 495 U.S. at
600. If the statutory definition of the prior offense corresponds in
substance to the generic version of the enumerated offense, or is
narrower than that generic offense, the prior conviction can serve as a
predicate offense. Id. at 599. If the statutory definition of the prior
offense is broader than the generic offense, the prior conviction
generally cannot count as a predicate offense. Id. In making such a
determination, a sentencing court generally may ``look only to the fact
of conviction and the statutory definition of the prior offense.'' Id.
at 602. However, this approach ``may permit the sentencing court to go
beyond the mere fact of conviction in a narrow range of cases where a
jury was actually required to find all the elements'' of the generic
offense. Id. Thus, a prior conviction fits within the particular
category of crimes ``if either its statutory definition substantially
corresponds to [the generic definition of the crime], or the charging
paper and jury instructions actually required the jury to find all the
elements of [the generic crime] in order to convict the defendant.''
Id.
In Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court
reaffirmed the use of this modified version of the categorical approach
in the ``narrow range of cases'' recognized in Taylor in which the
statute of conviction defines an offense that is broader than the
elements of the generic offense. Shepard, 544 U.S. at 17-18. In such a
case, the Court held, the sentencing court may look to a limited list
of documents to determine the class of offense. In cases resolved by a
guilty plea, such as in Shepard, the court may look to ``the terms of
the charging document, the terms of the plea agreement or transcript of
colloquy between judge and defendant in which the factual basis for the
plea was confirmed by the defendant, or to some comparable judicial
record of this information.'' Id. at 26. This analysis is called the
``modified categorical approach.'' Under this approach, the court may
consider only those sources of information approved by Taylor and
Shepard--the charging document, the jury instructions or judge's formal
rulings of law and findings of fact, any plea agreement or plea
statement, or ``some comparable judicial record of this information.''
More recent cases make clear that a court may use the modified
categorical approach described in Shepard only when the statute that
the defendant was convicted of violating is ``divisible.'' The Supreme
Court held in Descamps v. United States, 570 U.S. 254 (2013), that a
statute is ``divisible'' only when it contains multiple crimes defined
by multiple alternative elements. If the statute is not divisible
(i.e., it describes a single crime defined by a single set of elements,
even if it may also list alternative means of satisfying one or more
elements), then the modified categorical approach is not permitted.
When a statute is divisible, and the modified categorical approach is
applied, only the documents approved in Taylor and Shepard may be used
to determine which of the alternative specified ways of committing the
offense formed the basis of conviction. The modified categorical
approach acts in such cases not as an exception to the categorical
approach, but as a tool of that approach, while retaining its central
feature: ``a focus on the elements, rather than the facts of a crime.''
Id. at 263. Consequently, courts cannot use the documents to
investigate the underlying conduct of the prior offense.
In Mathis v. United States, 136 S. Ct. 2243 (2016), the Supreme
Court elaborated further on the elements-means distinction, holding
that a sentencing court may look only to the elements of the statute of
conviction, even if the statute specifies alternative ways of
committing the offense. The Court instructed that the first task for
sentencing courts faced with alternatively phrased statutes is to
``determine whether its listed items are elements or means.'' Id. at
2256. If the listed items are elements of the offense, the modified
categorical approach is available for courts to determine under what
section of the statute the defendant was convicted. However, if the
listed items are means of satisfying one of the offense elements, the
court cannot apply the modified categorical approach to determine which
of the statutory alternatives was at issue in prosecuting the prior
conviction. Id.
The Commission has received significant comment over the years
regarding the categorical approach, most of which has been negative.
Courts and stakeholders have criticized the categorical approach as
being an overly complex, time consuming, resource-intensive analysis
that often leads to litigation and uncertainty. Commenters have also
indicated that the categorical approach creates serious and unjust
inconsistencies that make the guidelines more cumbersome, complex, and
less effective at addressing dangerous repeat offenders. As a result,
commenters argue, some federal and state offenses that would otherwise
qualify as a ``crime of violence'' or a ``controlled substance
offense'' no longer qualify as such in several federal circuits.
Part A of the proposed amendment would amend Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1) to provide that the
categorical approach and modified categorical approach do not apply in
determining whether a conviction is a ``crime of violence'' or a
``controlled substance offense.'' Specifically, Part A would provide
that, in making that determination, a court shall consider any element
or alternative means for meeting an element of the offense committed by
the defendant, as well as the conduct that formed the basis of the
offense of conviction.
In addition, Part A would allow courts to look at a wider range of
sources from the judicial record, beyond the statute of conviction, in
determining the conduct that formed the basis of the offense of
conviction. Specifically, it would permit courts to look to the types
of sources identified in Taylor and Shepard: (1) the charging document;
(2)
[[Page 65409]]
the jury instructions, in a case tried to a jury; the judge's formal
rulings of law or findings of fact, in a case tried to a judge alone;
or, in a case resolved by a guilty plea, the plea agreement or
transcript of colloquy between judge and defendant in which the factual
basis of the plea was confirmed by the defendant; (3) any explicit
factual finding by the trial judge to which the defendant assented; and
(4) any comparable judicial record of the information described above.
Part A of the proposed amendment would also make corresponding
changes to the Commentary to Sec. 2L1.2 (Unlawfully Entering or
Remaining in the United States), which contains definitions for the
terms ``crime of violence'' and ``drug trafficking offense'' that
closely track the definitions of ``crime of violence'' and ``controlled
substance offense,'' respectively, in Sec. 4B1.2. It would add a new
application note that mirrors the new provisions proposed for Sec.
4B1.2.
Finally, Part A of the proposed amendment makes conforming changes
to the guidelines that use the terms ``crime of violence'' and
``controlled substance offense'' and define these terms by making
specific reference to Sec. 4B1.2. Accordingly, the proposed amendment
would amend the commentaries to Sec. Sec. [thinsp]2K1.3 (Unlawful
Receipt, Possession, or Transportation of Explosive Materials;
Prohibited Transactions Involving Explosive Materials), 2K2.1 (Unlawful
Receipt, Possession, or Transportation of Firearms or Ammunition;
Prohibited Transactions Involving Firearms and Ammunitions), 2S1.1
(Laundering of Monetary Instruments; Engaging in Monetary Transactions
in Property Derived from Unlawful Activity), 4A1.2 (Definitions and
Instructions for Computing Criminal History), 4B1.4 (Armed Career
Criminal), and 7B1.1 (Classification of Violations (Policy Statement)).
Issues for comment are also provided.
Proposed Amendment:
Section 4B1.2 is amended--
in subsection (a)(1) by striking ``has as an element'' and
inserting ``has an element or alternative means for meeting an
element'';
in subsection (a)(2) by striking ``is murder,'' and inserting
``constituted murder,'';
and in subsection (b) by striking ``that prohibits'' and inserting
``that has as an element or alternative means for meeting an element''.
The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is
amended in Note 2 by striking the following:
``Offense of Conviction as Focus of Inquiry.--Section 4B1.1 (Career
Offender) expressly provides that the instant and prior offenses must
be crimes of violence or controlled substance offenses of which the
defendant was convicted. Therefore, in determining whether an offense
is a crime of violence or controlled substance for the purposes of
Sec. 4B1.1 (Career Offender), the offense of conviction (i.e., the
conduct of which the defendant was convicted) is the focus of
inquiry.'',
and inserting the following:
``Procedure for Determining Whether an Offense is a `Crime of
Violence' or a `Controlled Substance Offense'.--The `categorical
approach' and `modified categorical approach' adopted by the Supreme
Court in the context of certain statutory provisions (e.g., 18 U.S.C.
Sec. 924(e)) do not apply in the determination of whether a conviction
is a `crime of violence' or a `controlled substance offense,' as set
forth below. See Background Commentary.
(A) Conduct-Based Inquiry.--Section 4B1.1 (Career Offender)
expressly provides that the instant and prior offenses must be crimes
of violence or controlled substance offenses of which the defendant was
convicted. In determining whether the defendant was convicted of a
`crime of violence' or a `controlled substance offense,' the court
shall consider the conduct that formed the basis of the conviction,
i.e., only the conduct that met one or more elements of the offense of
conviction or that was an alternative means of meeting any such
element.
(B) Sources to be Considered.--In determining the conduct that
formed the basis of the conviction, the court shall look only to the
statute of conviction and the following sources--
(i) The charging document.
(ii) The jury instructions, in a case tried to a jury; the judge's
formal rulings of law or findings of fact, in a case tried to a judge
alone; or, in a case resolved by a guilty plea, the plea agreement or
transcript of colloquy between judge and defendant in which the factual
basis of the guilty plea was confirmed by the defendant.
(iii) Any explicit factual finding by the trial judge to which the
defendant assented.
(iv) Any comparable judicial record of the information described in
subparagraphs (i) through (iii).
(C) Definitions of Enumerated Offenses.--In determining whether the
conduct that formed the basis of the conviction constitutes one of the
enumerated offenses in subsection (a)(2), use the definition of the
enumerated offense provided in Application Note 1. If no definition is
provided, use the contemporary, generic definition of the enumerated
offense.''.
The Commentary to Sec. 4B1.2 is amended by adding at the end the
following:
``Background: Section 4B1.2 provides the definitions for the terms
`crime of violence,' `controlled substance offense,' and `two prior
felony convictions' used in Sec. 4B1.1 (Career Offender). To determine
if a conviction meets the definitions of `crime of violence' and
`controlled substance offense' in Sec. 4B1.2, courts have typically
used the categorical approach and the modified categorical approach, as
set forth in Supreme Court jurisprudence. See, e.g., Taylor v. United
States, 495 U.S. 575 (1990); Shepard v. United States, 544 U.S. 13
(2005); Descamps v. United States, 570 U.S. 254 (2013); Mathis v.
United States, 136 S. Ct. 2243 (2016). These Supreme Court cases,
however, involved statutory provisions (e.g., 18 U.S.C. Sec. 924(e))
rather than guideline provisions. Even though courts have applied the
categorical approach and the modified categorical approach to guideline
provisions, neither 28 U.S.C. Sec. 994(h) nor the guidelines require
such a limited analysis for determining whether an offense is a `crime
of violence' or a `controlled substance offense' for purposes of Sec.
4B1.1. Section 4B1.2 and Application Note 2 make clear that the
categorical approach and modified categorical approach do not apply
when a court determines whether a defendant's conviction qualifies as a
`crime of violence' or a `controlled substance offense' under the
career offender guideline. In addition, the court is permitted to
consider a wider range of sources from the judicial record in
determining whether a prior conviction qualifies as a `crime of
violence' or a `controlled substance offense.'''.
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is
amended--
in Note 2--
in the paragraph that begins ```Crime of violence' means'' by
striking ``any of the following offenses under federal, state, or local
law:'' and inserting ``an offense under federal, state, or local law
that constituted'', and by striking ``, or any other offense under
federal, state, or local law that has as an element'' and inserting ``;
or any other offense under federal, state, or local law that has as an
element or alternative means for meeting an element'';
and in the paragraph that begins ```Drug trafficking offense'
means'' by striking ``an offense under federal, state, or local law
that prohibits'' and
[[Page 65410]]
inserting ``an offense under federal, state, or local law that has as
an element or alternative means for meeting an element'';
by redesignating Notes 6, 7, and 8 as Notes 7, 8, and 9,
respectively;
and by inserting the following new Note 6:
``6. Procedure for Determining Whether a Prior Conviction is a
`Crime of Violence' or a `Drug Trafficking Offense'.--The `categorical
approach' and `modified categorical approach' adopted by the Supreme
Court in the context of certain statutory provisions (e.g., 18 U.S.C.
Sec. 924(e)) do not apply in the determination of whether a conviction
is a `crime of violence' or a `drug trafficking offense,' as set forth
below. See Background Commentary to Sec. 4B1.2 (Definitions of Terms
Used in Section 4B1.1).
(A) Conduct-Based Inquiry.--In determining whether the defendant
was convicted of a `crime of violence' or a `drug trafficking offense'
for the purposes of subsections (b)(2)(E) and (b)(3)(E), the court
shall take into account the conduct that formed the basis of the
conviction, i.e., only the conduct that met one or more elements of the
offense of conviction or that was an alternative means of meeting any
such element.
(B) Sources to be Considered.--In determining the conduct that
formed the basis of the conviction, the court shall look only to the
statute of conviction and the following sources--
(i) The charging document.
(ii) The jury instructions, in a case tried to a jury; the judge's
formal rulings of law or findings of fact, in a case tried to a judge
alone; or, in a case resolved by a guilty plea, the plea agreement or
transcript of colloquy between judge and defendant in which the factual
basis of the guilty plea was confirmed by the defendant.
(iii) Any explicit factual finding by the trial judge to which the
defendant assented.
(iv) Any comparable judicial record of the information described in
subparagraphs (i) through (iii).
(C) Definitions of Enumerated Offenses.--In determining whether the
conduct that formed the basis of the conviction constituted one of the
enumerated offenses in the definition of `crime of violence,' use the
definition of the enumerated offense provided. If no definition is
provided, use the contemporary, generic definition of the enumerated
offense.''.
The Commentary to Sec. 2K1.3 captioned ``Application Notes'' is
amended in Note 2--
in the paragraph that begins `` `Controlled substance offense' has
the meaning'' by striking ``has the meaning given that term in Sec.
4B1.2(b) and Application Note 1 of the Commentary to Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1)'' and inserting ``means a
`controlled substance offense' as defined and determined in accordance
with Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1)'';
and in the paragraph that begins `` `crime of violence' has the
meaning'' by striking ``has the meaning given that term in Sec.
4B1.2(a) and Application Note 1 of the Commentary to Sec. 4B1.2'' and
inserting ``means a `crime of violence' as defined and determined in
accordance with Sec. 4B1.2 (Definitions of Terms Used in Section
4B1.1)''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended--
in Note 1--
in the paragraph that begins `` `Controlled substance offense' has
the meaning'' by striking ``has the meaning given that term in Sec.
4B1.2(b) and Application Note 1 of the Commentary to Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1)'' and inserting ``means a
`controlled substance offense' as defined and determined in accordance
with Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1)'';
and in the paragraph that begins `` `Crime of violence' has the
meaning'' by striking ``has the meaning given that term in Sec.
4B1.2(a) and Application Note 1 of the Commentary to Sec. 4B1.2'' and
inserting ``means a `crime of violence' as defined and determined in
accordance with Sec. 4B1.2 (Definitions of Terms Used in Section
4B1.1)'';
and in Note 13(B) by striking ``have the meaning given those terms
in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1)'' and
inserting ``mean a `crime of violence' and a `controlled substance
offense' as defined and determined in accordance with Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1)''.
The Commentary to Sec. 2S1.1 captioned ``Application Notes'' is
amended in Note 1, in the paragraph that begins `` `Crime of violence'
has the meaning'', by striking ``has the meaning given that term in
subsection (a)(1) of Sec. 4B1.2 (Definitions of Terms Used in Section
4B1.1)'' and inserting ``means a `crime of violence' as defined in
subsection (a)(1) of Sec. 4B1.2 (Definitions of Terms Used in Section
4B1.1), regardless of whether such offense resulted in a conviction''.
The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is
amended in Note 5 by striking ``has the meaning given that term in
Sec. 4B1.2(a)'' and inserting ``means a `crime of violence' as defined
and determined in accordance with Sec. 4B1.2 (Definitions of Terms
Used in Section 4B1.1)''.
Section 4A1.2(p) is amended by striking ``the definition of `crime
of violence' is that set forth in Sec. 4B1.2(a)'' and inserting
```crime of violence' means a `crime of violence' as defined and
determined in accordance with Sec. 4B1.2 (Definitions of Terms Used in
Section 4B1.1)''.
Section 4B1.4 is amended--
in subsection (b)(3)(A) by striking ``in connection with either a
crime of violence, as defined in Sec. 4B1.2(a), or a controlled
substance offense, as defined in Sec. 4B1.2(b)'' and inserting ``in
connection with either a crime of violence, as defined in Sec.
4B1.2(a) (regardless of whether such offense resulted in a conviction),
or a controlled substance offense, as defined in Sec. 4B1.2(b)
(regardless of whether such offense resulted in a conviction)'';
and in subsection (c)(2) by striking ``in connection with either a
crime of violence, as defined in Sec. 4B1.2(a), or a controlled
substance offense, as defined in Sec. 4B1.2(b)'' and inserting ``in
connection with either a crime of violence, as defined in Sec.
4B1.2(a) (regardless of whether such offense resulted in a conviction),
or a controlled substance offense, as defined in Sec. 4B1.2(b)
(regardless of whether such offense resulted in a conviction)''.
The Commentary to Sec. 5K2.17 captioned ``Application Notes'' is
amended in Note 1 by striking ``are defined in Sec. 4B1.2 (Definitions
of Terms Used in Section 4B1.1)'' and inserting ``mean a `crime of
violence' and a `controlled substance offense' as defined in
subsections (a) and (b) of Sec. 4B1.2 (Definitions of Terms Used in
Section 4B1.1), regardless of whether such offense resulted in a
conviction''.
The Commentary to Sec. 7B1.1 captioned ``Application Notes'' is
amended--
in Note 2 by striking ``is defined in Sec. 4B1.2 (Definitions of
Terms Used in Section 4B1.1). See Sec. 4B1.2(a) and Application Note 1
of the Commentary to Sec. 4B1.2'' and inserting ``means a `crime of
violence' as defined in subsection (a) of Sec. 4B1.2 (Definitions of
Terms Used in Section 4B1.1), regardless of whether such conduct
resulted in a conviction'';
and in Note 3 by striking ``is defined in Sec. 4B1.2 (Definitions
of Terms Used in Section 4B1.1). See Sec. 4B1.2(b) and Application
Note 1 of the Commentary to Sec. 4B1.2'' and inserting ``means a
`controlled substance offense' as defined in subsection (b) of Sec.
4B1.2 (Definitions of Terms Used in Section 4B1.1),
[[Page 65411]]
regardless of whether such conduct resulted in a conviction''.
Issues for Comment:
1. Part A of the proposed amendment would amend Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1) to provide that the
``categorical approach'' and ``modified categorical approach,'' as set
forth in Supreme Court jurisprudence for certain statutory provisions,
do not apply in determining whether a conviction is a ``crime of
violence'' or a ``controlled substance offense'' for purposes of the
guidelines. As indicated above, courts have applied the categorical
approach and the modified categorical approach to guideline provisions,
even though the guidelines do not expressly require such an analysis.
The Commission invites comment on whether Part A of the proposed
amendment is consistent with the Commission's authority under 28 U.S.C.
Sec. 994(a)-(f), (h).
2. Part A of the proposed amendment would allow courts to look to
the documents expressly approved in Taylor v. United States, 495 U.S.
575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), in
determining the conduct that formed the basis of the offense of
conviction.
The Commission seeks comment on whether additional or different
guidance should be provided. If so, what additional or different
guidance should the Commission provide? For example, should the
Commission provide a specific set of factors to assess the reliability
of a source of information, such as whether the document came out of
the adversarial process, was accepted by both parties, or was made by
an impartial third party? If so, what factors should the Commission
provide? Should the Commission list specific sources or types of
sources that courts may consider, in addition to the sources expressly
approved in Taylor and Shepard (i.e., the Shepard documents)? If so,
what documents or types of information should be included in this list?
Are there any documents or types of information that should be
expressly excluded? If so, what documents or types of information
should be excluded? Should the Commission broaden the range of sources
courts may look at, in addition to the Shepard documents, by providing
that courts may also consider any uncontradicted, internally consistent
parts of the judicial record from the prior conviction?
3. Currently, Sec. 4B1.2 provides definitions for only two of the
enumerated offenses contained in the ``crime of violence'' definition
(i.e., ``forcible sex offense'' and ``extortion''). For the other
enumerated offenses, the proposed amendment provides that courts should
use the contemporary, generic definition of the enumerated offense.
Should the Commission instead set forth specific definitions for all
enumerated offenses covered by the guideline? If so, what definitions
would be appropriate for purposes of the career offender guideline? For
example, should the Commission provide definitions derived from broad
contemporary, generic definitions of the enumerated offenses? What
offenses should be covered by any potential definition of the
enumerated offenses? What offenses should be excluded from any
potential definition?
(B) Meaning of ``Robbery''
Synopsis of Proposed Amendment: In 2016, the Commission amended
Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1) to, among
other things, delete the ``residual clause'' and revise the
``enumerated offenses clause'' by moving enumerated offenses that were
previously listed in the commentary to the guideline itself. See USSG,
App. C, Amendment 798 (effective Aug. 1, 2016). The ``enumerated
offenses clause'' identifies specific offenses that qualify as crimes
of violence. Although the guideline relies on existing case law for
purposes of defining most enumerated offenses, the amendment added to
the Commentary to Sec. 4B1.2 definitions for two of the enumerated
offenses: ``forcible sex offense'' and ``extortion.''
``Extortion'' is defined as ``obtaining something of value from
another by the wrongful use of (A) force, (B) fear of physical injury,
or (C) threat of physical injury.'' Under case law existing at the time
of the amendment, courts generally defined extortion as ``obtaining
something of value from another with his consent induced by the
wrongful use of force, fear, or threats,'' based on the Supreme Court's
holding in United States v. Nardello, 393 U.S. 286, 290 (1969)
(defining ``extortion'' for purposes of 18 U.S.C. Sec. 1952). However,
consistent with the Commission's goal of focusing the career offender
and related enhancements on the most dangerous offenders, the amendment
narrowed the generic definition of extortion by limiting it to offenses
having an element of force or an element of fear or threats ``of
physical injury,'' as opposed to non-violent threats such as injury to
reputation.
In its annual letter to the Commission, the Department of Justice
expressed concern that courts have held that certain robbery offenses,
such as Hobbs Act robbery, no longer constitute a ``crime of violence''
under the guideline as amended in 2016 because the statute of
conviction does not fit either the generic definition of ``robbery'' or
the new guideline definition of ``extortion.'' See Annual Letter from
the Department of Justice to the Commission (Aug. 10, 2018), at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20180810/DOJ.pdf. The Hobbs Act defines the term ``robbery'' as ``the
unlawful taking or obtaining of personal property from the person or in
the presence of another, against his will, by means of actual or
threatened force, or violence, or fear of injury, immediate or future,
to his person or property . . . . '' 18 U.S.C. Sec. 1951(b)(1)
(emphasis added). At least two circuits--the Ninth and Tenth Circuits--
have found ambiguity as to whether the guideline definition of
extortion includes injury to property, and (under the rule of lenity)
both circuits have interpreted the new definition as excluding prior
convictions where the statute encompasses injury to property offenses,
such as Hobbs Act robbery. See, e.g., United States v. O'Connor, 874
F.3d 1147 (10th Cir. 2017) (Hobbs Act robbery); United States v.
Edling, 895 F.3d 1153 (9th Cir. 2018) (Nevada robbery).
Part B of the proposed amendment would amend Sec. 4B1.2 to address
this issue. Three options are provided.
Option 1 would amend the enumerated offenses clause at Sec.
4B1.2(a)(2) to add a parenthetical annotation that robbery, as listed,
is ``robbery (as described in 18 U.S.C. Sec. 1951(b)(1)).'' Section
1951(b)(1) provides the Hobbs Act definition of ``robbery.''
Option 2 would amend the Commentary to Sec. 4B1.2 to add a
definition of ``robbery'' for purposes of the career offender
guideline. The definition would mirror the ``robbery'' definition at 18
U.S.C. Sec. 1951(b)(1). Specifically, it would provide that
``robbery'' is ``the unlawful taking or obtaining of personal property
from the person or in the presence of another, against his will, by
means of actual or threatened force, or violence, or fear of injury,
immediate or future, to his person or property, or property in his
custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at the time of the
taking or obtaining.'' Option 2 also brackets a provision defining the
phrase ``actual or threatened force,'' for purposes of the ``robbery''
definition, as ``minimal force that is sufficient to compel a person to
part with personal property.''
[[Page 65412]]
Option 3, similar to Option 2, would amend the Commentary to Sec.
4B1.2 to add a definition of ``robbery'' that mirrors the ``robbery''
definition at 18 U.S.C. Sec. 1951(b)(1). However, Option 3 brackets a
different alternative for defining the phrase ``actual or threatened
force.'' It would provide that such phrase refers to ``force that is
sufficient to overcome a person's physical resistance or physical power
of resistance.''
In addition, Part B of the proposed amendment includes conforming
changes to the definition of ``crime of violence'' in the Commentary to
Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States).
The changes are presented in accordance with the options described
above.
Issues for comment are also provided.
Proposed Amendment:
[Option 1:
Section 4B1.2(a)(2) is amended by striking ``robbery'' and
inserting ``robbery (as described in 18 U.S.C. Sec. 1951(b)(1))''.]
[Option 2:
The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is
amended in Note 1 by inserting after the paragraph that begins ``
`Forcible sex offense' includes'' the following new paragraph:
`` `Robbery' is the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property, or property in
his custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at the time of the
taking or obtaining. [The phrase ``actual or threatened force'' refers
to minimal force that is sufficient to compel a person to part with
personal property.]''.]
[Option 3:
The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is
amended in Note 1 by inserting after the paragraph that begins ``
`Forcible sex offense' includes'' the following new paragraph:
`` `Robbery' is the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property, or property in
his custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at the time of the
taking or obtaining. [The phrase ``actual or threatened force'' refers
to force that is sufficient to overcome a person's physical resistance
or physical power of resistance.]''.]
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is
amended in Note 2, in the paragraph that begins ```Crime of violence'
means''--
[Option 1:
by striking ``robbery'' and inserting ``robbery (as described in 18
U.S.C. Sec. 1951(b)(1))''.]
[Option 2:
by inserting after ``territorial jurisdiction of the United
States.'' the following: `` `Robbery' is the unlawful taking or
obtaining of personal property from the person or in the presence of
another, against his will, by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to his person or
property, or property in his custody or possession, or the person or
property of a relative or member of his family or of anyone in his
company at the time of the taking or obtaining. [The phrase ``actual or
threatened force'' refers to minimal force that is sufficient to compel
a person to part with personal property.]''.]
[Option 3:
by inserting after ``territorial jurisdiction of the United
States.'' the following: `` `Robbery' is the unlawful taking or
obtaining of personal property from the person or in the presence of
another, against his will, by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to his person or
property, or property in his custody or possession, or the person or
property of a relative or member of his family or of anyone in his
company at the time of the taking or obtaining. [The phrase ``actual or
threatened force'' refers to force that is sufficient to overcome a
person's physical resistance or physical power of resistance.]''.]
Issues for Comment:
1. Options 1, 2, and 3 in Part B of the proposed amendment would
have ``robbery,'' as listed in subsection (a)(2) of Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1) and Sec. 2L1.2
(Unlawfully Entering or Remaining in the United States), either
reference or mirror the Hobbs Act definition of ``robbery'' at 18
U.S.C. Sec. 1951(b)(1). The Commission seeks comment generally on
whether the proposed definition of ``robbery'' is appropriate. Are
there robbery offenses that are covered by the proposed definition but
should not be? Are there robbery offenses that are not covered by the
proposed definition but should be?
2. The Hobbs Act definition of ``robbery'' at 18 U.S.C. Sec.
1951(b)(1) includes the phrase ``actual or threated force'' as part of
the elements of the offense. The Commission seeks comment on how the
phrase ``actual or threatened force'' has been defined by case law for
purposes of the Hobbs Act definition of ``robbery'' at 18 U.S.C. Sec.
1951(b)(1). What level of force have courts determined is required for
purposes of Hobbs Act robbery cases? Have courts interpreted the level
of force required in such cases to be ``violent force,'' as defined in
Johnson v. United States, 559 U.S. 133, 140 (2010)? Have courts
determined that Hobbs Act robbery could encompass conduct that falls
below the level of ``violent force''? If so, what level of force have
courts specified?
Options 2 and 3 of the proposed amendment bracket two alternatives
for defining the phrase ``actual or threatened force,'' for purposes of
the proposed ``robbery'' definition. Option 2 would provide that the
phrase ``actual or threatened force'' refers to ``minimal force that is
sufficient to compel a person to part with personal property.'' Option
3 would provide that such phrase refers to ``force that is sufficient
to overcome a person's physical resistance or physical power of
resistance.'' The Commission seeks comment on whether either of these
two alternatives is appropriate for purposes of the proposed
``robbery'' definition. Are there robbery offenses that would be
covered by defining ``actual or threatened force'' in any such way but
should not be? Are there robbery offenses that would not be covered but
should be? If none of the bracketed alternatives is appropriate for
purposes of the proposed ``robbery'' definition, how should the
Commission define the phrase ``actual or threatened force''? What level
of force should the Commission specify as part of the proposed
``robbery'' definition?
(C) Inchoate Offenses
Synopsis of Proposed Amendment: The career offender guideline
includes convictions for inchoate offenses and offenses arising from
accomplice liability, such as aiding and abetting, conspiring to
commit, and attempting to commit a ``crime of violence'' and a
``controlled substance offense.'' See USSG Sec. 4B1.2, comment. (n.1).
In the original 1987 Guidelines Manual, these offenses were included
only in the definition of ``controlled substance offense.'' See USSG
Sec. 4B1.2, comment. (n.2) (effective Nov. 1, 1987). In 1989, the
Commission amended the guideline to provide that both definitions--
``crime of violence'' and ``controlled substance offense''--include the
offenses of aiding and abetting, conspiracy, and attempt to commit such
crimes. See USSG App. C, Amendment 268 (effective Nov. 1, 1989).
In its annual letter to the Commission, the Department of Justice
has suggested
[[Page 65413]]
that application issues have arisen regarding whether certain
conspiracy offenses qualify under the career offender guideline as a
``crime of violence'' or a ``controlled substance offense.'' See Annual
Letter from the Department of Justice to the Commission (Aug. 10,
2018), at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20180810/DOJ.pdf. In making this determination,
some courts have employed a two-step analysis, first comparing the
substantive offense to its generic definition, and then separately
comparing the inchoate offense involving that substantive offense to
the generic definition of the specific inchoate offense. In comparing
conspiracy to commit an offense to the generic definition of
``conspiracy,'' some courts have concluded that because the generic
definition of conspiracy requires an overt act, federal and state
conspiracy statutes that do not require an overt act categorically do
not qualify as a ``crime of violence'' or a ``controlled substance
offense.'' See, e.g., United States v. McCollum, 885 F.3d 300, 303 (4th
Cir. 2018).
In addition, another issue has been brought to the Commission's
attention. Case law has long held that ``commentary in the Guidelines
Manual that interprets or explains a guideline is authoritative unless
it violates the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline.'' Stinson v.
United States, 508 U.S. 36, 38 (1993); see also USSG Sec. 1B1.7. Most
circuits have held that the definitions of ``crime of violence'' and
``controlled substance offense'' at Sec. 4B1.2 include the offenses of
aiding and abetting, conspiracy to commit, and attempt to commit such
crimes, in accordance with the commentary to the guideline. See, e.g.,
United States v. Nieves-Borrero, 856 F.3d 5 (1st Cir. 2017); United
States v. Jackson, 60 F.3d 128 (2d Cir. 1995); United States v. Dozier,
848 F.3d 180 (4th Cir. 2017); United States v. Guerra, 962 F.2d 484
(5th Cir. 1992); United States v. Evans, 699 F.3d 858 (6th Cir. 2012);
United States v. Tate, 822 F.3d 370 (7th Cir. 2016); United States v.
Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995); United States v. Sarbia,
367 F.3d 1079 (9th Cir. 2004); United States v. McKibbon, 878 F.3d 967
(10th Cir. 2017); United States v. Lange, 862 F.3d 1290 (11th Cir.
2017). However, a recent decision from the D.C. Circuit concluded
otherwise for purposes of the ``controlled substance offense''
definition. See United States v. Winstead, 890 F.3d 1082, 1091 (D.C.
Cir. May 25, 2018) (``Section 4B1.2(b) presents a very detailed
`definition' of controlled substance offense that clearly excludes
inchoate offenses.'').
Part C of the proposed amendment would address these issues by
amending Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1) and
its commentary. As indicated above, the commentary that accompanies the
guidelines is authoritative and failure to follow the commentary would
constitute an incorrect application of the guidelines, subjecting the
sentence imposed to possible reversal on appeal. See 18 U.S.C. Sec.
3742. However, the Commission proposes to move the inchoate offenses
provision from the Commentary to Sec. 4B1.2 to the guideline itself as
a new subsection (c) to alleviate any confusion and uncertainty
resulting from the D.C. Circuit's decision.
In addition to moving the inchoate offenses provision from the
Commentary to the guideline, Part C of the proposed amendment would
revise the provision to provide that the terms ``crime of violence''
and ``controlled substance offense'' include the offenses of aiding and
abetting, attempting to commit, [soliciting to commit,] or conspiring
to commit any such offense, or any other inchoate offense or offense
arising from accomplice liability involving a ``crime of violence'' or
a ``controlled substance offense.'' Three options are provided to
address the other issues brought by the Department of Justice in
different ways.
Option 1 would address the conspiracy issue in a comprehensive
manner that would be applicable to all other inchoate offenses and
offenses arising from accomplice liability. It would eliminate the need
for the two-step analysis discussed above by adding the following to
the new subsection (c): ``To determine whether any offense described
above qualifies as a `crime of violence' or `controlled substance
offense,' the court shall only determine whether the underlying
substantive offense is a `crime of violence' or a `controlled substance
offense,' and shall not consider the elements of the inchoate offense
or offense arising from accomplice liability.''
Option 2, similar to Option 1, would eliminate the need for the
two-step analysis generally by providing that to determine whether an
inchoate offense or an offense arising from accomplice liability
qualifies as a ``crime of violence'' or ``controlled substance
offense,'' the court shall only determine whether the underlying
substantive offense is a ``crime of violence'' or a ``controlled
substance offense,'' and shall not consider the elements of the
inchoate offense or offense arising from accomplice liability. However,
Option 2 sets forth two suboptions to address conspiracy offenses.
Suboption 2A would provide that an offense of conspiring to commit a
``crime of violence'' or a ``controlled substance offense'' qualifies
as a ``crime of violence'' or a ``controlled substance offense'' only
if the underlying substantive offense is a ``crime of violence'' or a
``controlled substance offense'' and an overt act must be proved as an
element of the conspiracy offense. Suboption 2B treats ``crime of
violence'' and ``controlled substance offense'' differently with
respect to conspiracy offenses. It would eliminate the need for the
two-step analysis for an offense of conspiring to commit a ``crime of
violence,'' but it would provide that an offense of conspiring to
commit a ``controlled substance offense'' qualifies as a ``controlled
substance offense'' only if the underlying substantive offense is a
``controlled substance offense'' and an overt act must be proved as an
element of the conspiracy offense.
Option 3 would take a narrower approach, addressing only the
conspiracy issue, and not adding language to subsection (c) eliminating
the two-step analysis described above. Option 3 would amend the
commentary to add an application note relating to offenses of
conspiring to commit a ``crime of violence'' or a ``controlled
substance offense.'' It sets forth two suboptions. Suboption 3A treats
offenses of conspiring to commit a ``crime of violence'' or a
``controlled substance offense'' the same way but brackets two possible
alternatives for the overt-act issue. It provides that an offense of
conspiring to commit a ``crime of violence'' or a ``controlled
substance offense'' qualifies as a ``crime of violence'' or a
``controlled substance offense,'' [regardless of whether] [only if] an
overt act must be proved as an element of the conspiracy offense.
Suboption 3B treats ``crime of violence'' and ``controlled substance
offense'' differently with respect to conspiracy offenses. It provides
that an offense of conspiring to commit a ``crime of violence''
qualifies as a ``crime of violence,'' regardless of whether an overt
act must be proved as an element of the conspiracy offense; however, an
offense of conspiring to commit a ``controlled substance offense''
qualifies as a ``controlled substance offense'' only if an overt act
must be proved as an element of the conspiracy offense.
Issues for comment are also provided.
Proposed Amendment:
[[Page 65414]]
Section 4B1.2 is amended by redesignating subsection (c) as
subsection (d), and inserting the following new subsection (c):
[Option 1 (which also includes changes to the commentary):
``(c) The terms `crime of violence' and `controlled substance
offense' include the offenses of aiding and abetting, attempting to
commit, [soliciting to commit,] or conspiring to commit any such
offense, or any other inchoate offense or offense arising from
accomplice liability involving a `crime of violence' or a `controlled
substance offense.' To determine whether any offense described above
qualifies as a `crime of violence' or `controlled substance offense,'
the court shall only determine whether the underlying substantive
offense is a `crime of violence' or a `controlled substance offense,'
and shall not consider the elements of the inchoate offense or offense
arising from accomplice liability.''.]
[Option 2 (which also includes changes to the commentary):
[Suboption 2A:
``(c) The terms `crime of violence' and `controlled substance
offense' include the offenses of aiding and abetting, attempting to
commit, [soliciting to commit,] or conspiring to commit any such
offense, or any other inchoate offense or offense arising from
accomplice liability involving a `crime of violence' or a `controlled
substance offense.' To determine whether any offense described above
qualifies as a `crime of violence' or `controlled substance offense,'
except for an offense of conspiring to commit a `crime of violence' or
`controlled substance offense,' the court shall only determine whether
the underlying substantive offense is a `crime of violence' or a
`controlled substance offense,' and shall not consider the elements of
the inchoate offense or offense arising from accomplice liability.
An offense of conspiring to commit a `crime of violence' or a
`controlled substance offense,' however, qualifies as a `crime of
violence' or a `controlled substance offense' only if the underlying
substantive offense is a `crime of violence' or a `controlled substance
offense' and an overt act must be proved as an element of the
conspiracy offense.''.]
[Suboption 2B:
``(c) The terms `crime of violence' and `controlled substance
offense' include the offenses of aiding and abetting, attempting to
commit, [soliciting to commit,] or conspiring to commit any such
offense, or any other inchoate offense or offense arising from
accomplice liability involving a `crime of violence' or a `controlled
substance offense.' To determine whether any offense described above
qualifies as a `crime of violence' or `controlled substance offense,'
except for an offense of conspiring to commit a `controlled substance
offense,' the court shall only determine whether the underlying
substantive offense is a `crime of violence' or a `controlled substance
offense,' and shall not consider the elements of the inchoate offense
or offense arising from accomplice liability.
An offense of conspiring to commit a `controlled substance
offense,' however, qualifies as a `controlled substance offense' only
if the underlying substantive offense is a `controlled substance
offense' and an overt act must be proved as an element of the
conspiracy offense.''.]]
[Option 3 (which also includes changes to the commentary):
``(c) The terms `crime of violence' and `controlled substance
offense' include the offenses of aiding and abetting, attempting to
commit, [soliciting to commit,] or conspiring to commit any such
offense, or any other inchoate offense or offense arising from
accomplice liability involving a `crime of violence' or a `controlled
substance offense.' ''.]
[Options 1, 2, and 3 (continued):
The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is
amended in Note 1 by striking the following `` `Crime of violence' and
`controlled substance offense' include the offenses of aiding and
abetting, conspiring, and attempting to commit such offenses.''; and in
the paragraph that begins ``A violation of 18 U.S.C.Sec. 924 (c) or
Sec. 929(a)'' by striking ``was a `crime of violence' or a `controlled
substance offense'.'' and inserting ``was a `crime of violence' or a
`controlled substance offense.' ''.]
[Option 3 (continued):
The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is
further amended by redesignating Notes 3 and 4 as Notes 4 and 5,
respectively, and inserting the following new Note 3:
[Suboption 3A:
``3. Application of Subsection (c).--For purposes of subsection
(c), an offense of conspiring to commit a `crime of violence' or a
`controlled substance offense' qualifies as a `crime of violence' or a
`controlled substance offense,' [regardless of whether][only if] an
overt act must be proved as an element of the conspiracy offense.''.]
[Suboption 3B:
``3. Application of Subsection (c).--For purposes of subsection
(c), an offense of conspiring to commit a `crime of violence' qualifies
as a `crime of violence,' regardless of whether an overt act must be
proved as an element of the conspiracy offense. An offense of
conspiring to commit a `controlled substance offense,' however,
qualifies as a `controlled substance offense' only if an overt act must
be proved as an element of the conspiracy offense.''.] ]
Issues for Comment:
1. As indicated above, in determining whether an inchoate offense
is a ``crime of violence'' or a ``controlled substance offense,'' some
courts have employed a two-step analysis. First, courts compare the
substantive offense to its generic definition to determine whether it
is ``crime of violence'' or a ``controlled substance offense.'' Then,
these courts make a second and separate analysis comparing the inchoate
offense involving that substantive offense to the generic definition of
the specific inchoate offense. To promote clarity and consistency in
the application of the career offender guideline, Option 1 of Part C of
the proposed amendment would amend Sec. 4B1.2 (Definitions of Terms
Used in Section 4B1.1) to clarify that the offenses of aiding and
abetting, attempting to commit, [soliciting to commit,] or conspiring
to commit a ``crime of violence'' or a ``controlled substance
offense,'' or any other inchoate offense or offense arising from
accomplice liability involving a ``crime of violence'' or a
``controlled substance offense'' are a ``crime of violence'' or a
``controlled substance offense'' if the substantive offense is a
``crime of violence'' or a ``controlled substance offense.''
The Commission seeks comment on whether the guidelines should be
amended to make this clarification. Should the guidelines adopt a
different approach for these types of offenses? If so, what should that
different approach be? For example, should the Commission require the
courts to use a two-step analysis in determining whether an inchoate
offense is a ``crime of violence'' or a ``controlled substance
offense''? Should the Commission require courts to use a two-step
analysis for an inchoate offense involving a ``controlled substance
offense'' but provide that an inchoate offense involving a ``crime of
violence'' is always a ``crime of violence'' if the substantive offense
is a ``crime of violence''?
2. The Commission seeks comment on how the guidelines definitions
of ``crime of violence'' and ``controlled substance offense'' should
address the offenses of aiding and abetting, attempting to commit,
soliciting to commit, or conspiring to commit a ``crime of
[[Page 65415]]
violence'' or a ``controlled substance offense,'' or any other inchoate
offense or offense arising from accomplice liability involving a
``crime of violence'' or a ``controlled substance offense.''
Specifically, should the Commission promulgate any of the options
provided above? Should the Commission provide additional requirements
or guidance to address these types of offenses? What additional
requirements or guidance, if any, should the Commission provide?
(D) Definition of ``Controlled Substance Offense''
Synopsis of Proposed Amendment: Subsection (b) of Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1) defines a ``controlled
substance offense'' as an offense that prohibits ``the manufacture,
import, export, distribution, or dispensing of a controlled substance
(or counterfeit substance) or the possession of a controlled substance
(or a counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense.''
In its annual letter to the Commission, the Department of Justice
has raised a concern that courts have held that state drug statutes
that include an offense involving an ``offer to sell'' a controlled
substance do not qualify as a ``controlled substance offense'' under
Sec. 4B1.2(b) because such statutes encompass conduct that is broader
than Sec. 4B1.2(b)'s definition of a ``controlled substance offense.''
See Annual Letter from the Department of Justice to the Commission
(Aug. 10, 2018), at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20180810/DOJ.pdf. The Commission
previously addressed a similar issue regarding the definition of a
``drug trafficking offense'' in the illegal reentry guideline at Sec.
2L1.2 (Unlawfully Entering or Remaining in the United States). In 2008,
the Commission amended the Commentary to Sec. 2L1.2 to clarify that an
offer to sell a controlled substance is a ``drug trafficking offense''
for purposes of that guideline, by adding ``offer to sell'' to the
conduct listed in the definition of ``drug trafficking offense.'' See
USSG App. C, Amendment 722 (effective Nov. 1, 2008). In 2016, the
Commission comprehensively revised Sec. 2L1.2. Among the changes made,
the Commission amended the definition of ``crime of violence'' in the
Commentary to Sec. 2L1.2 to conform it to the definition in Sec.
4B1.2, but the Commission did not make changes to the ``drug
trafficking offense'' definition in the Commentary to Sec. 2L1.2.
The career offender directive at 28 U.S.C. Sec. 994(h) directed
the Commission to assure that ``the guidelines specify a term of
imprisonment at or near the maximum term authorized'' for offenders who
are 18 years or older and have been convicted of a felony that is, and
also have previously been convicted of two or more felonies that are, a
``crime of violence'' or ``an offense described in section 401 of the
Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and
1009 of the Controlled Substances Import and Export Act (21 U.S.C.
952(a), 955, and 959), and chapter 705 of title 46.'' Until 2016, the
only substantive criminal offense included in ``chapter 705 of title
46'' was codified in section 70503(a) and read as follows:
An individual may not knowingly or intentionally manufacture or
distribute, or possess with intent to manufacture or distribute, a
controlled substance on board--
(1) a vessel of the United States or a vessel subject to the
jurisdiction of the United States; or
(2) any vessel if the individual is a citizen of the United States
or a resident alien of the United States.
46 U.S.C. Sec. 70503(a) (2012). Section 70506(b) provided that a
person attempting or conspiring to violate section 70503 was subject to
the same penalties as provided for violating section 70503.
In 2016, Congress enacted the Coast Guard Authorization Act of
2015, Pub. L. 114-120 (2016), amending, among other things, Chapter 705
of Title 46. Specifically, Congress revised section 70503(a) as
follows:
While on board a covered vessel, an individual may not knowingly or
intentionally--
(1) manufacture or distribute, or possess with intent to
manufacture or distribute, a controlled substance;
(2) destroy (including jettisoning any item or scuttling, burning,
or hastily cleaning a vessel), or attempt or conspire to destroy,
property that is subject to forfeiture under section 511(a) of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C.
881(a)); or
(3) conceal, or attempt or conspire to conceal, more than $100,000
in currency or other monetary instruments on the person of such
individual or in any conveyance, article of luggage, merchandise, or
other container, or compartment of or aboard the covered vessel if that
vessel is outfitted for smuggling.
46 U.S.C. Sec. 70503(a). Section 70506(b) remained unchanged. The
Act added two new offenses to section 70503(a), in subparagraphs (2)
and (3). Accordingly, ``chapter 705 of title 46,'' as referenced in 28
U.S.C. Sec. 994(h), was also amended. However, these two new offenses
may not be covered by the current definition of ``controlled substance
offense'' in Sec. 4B1.2.
Part D of the proposed amendment would amend the definition of
``controlled substance offense'' in Sec. 4B1.2(b) to address these
issues. First, it would amend the definition to include offenses
involving an offer to sell a controlled substance, which would align it
with the current definition of ``drug trafficking offense'' in the
Commentary to Sec. 2L1.2. Second, it would revise the ``controlled
substance offense'' definition to also include ``an offense described
in 46 U.S.C. Sec. 70503(a) or Sec. 70506(b).''
An issue for comment is also provided.
Proposed Amendment:
Section 4B1.2(b) is amended by striking the following:
``The term `controlled substance offense' means an offense under
federal or state law, punishable by imprisonment for a term exceeding
one year, that prohibits the manufacture, import, export, distribution,
or dispensing of a controlled substance (or a counterfeit substance) or
the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense.'',
and inserting the following:
``The term `controlled substance offense' means an offense under
federal or state law, punishable by imprisonment for a term exceeding
one year, that--
(1) prohibits the manufacture, import, export, distribution, or
dispensing of, or offer to sell a controlled substance (or a
counterfeit substance) or the possession of a controlled substance (or
a counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense; or
(2) is an offense described in 46 U.S.C. Sec. 70503(a) or Sec.
70506(b).''.
Issue for Comment:
1. Part D of the proposed amendment would amend the definition of
``controlled substance offense'' in subsection (b) of Sec. 4B1.2
(Definitions of Terms Used in Section 4B1.1) to include offenses
involving an offer to sell a controlled substance. The Commission seeks
comment on the extent to which such offenses should be included as
``controlled substance offenses'' for purposes of the career offender
guideline. Are there other drug offenses that are not included under
this definition, but should be? For example, should the Commission
expressly include as part of the definition offenses
[[Page 65416]]
involving the transportation of controlled substances?
If the Commission were to amend the definition of ``controlled
substance offense'' in Sec. 4B1.2(b) to include other drug offenses,
in addition to offenses involving an offer to sell a controlled
substance, should the Commission revise the definition of ``controlled
substance offense'' at Sec. 2L1.2 (Unlawfully Entering or Remaining in
the United States) to conform it to the revised definition set forth in
Sec. 4B1.2(b)?
3. Miscellaneous
Synopsis of Proposed Amendment: This proposed amendment responds to
recently enacted legislation and miscellaneous guideline issues. See
U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 83 FR 43956
(Aug. 28, 2018) (identifying as priorities ``[i]mplementation of any
legislation warranting Commission action'' and ``[c]onsideration of
other miscellaneous issues[ ]'').
The proposed amendment contains five parts (Parts A through E). The
Commission is considering whether to promulgate any or all these parts,
as they are not mutually exclusive.
Part A responds to the FDA Reauthorization Act of 2017, Pub. L.
115-52 (Aug. 18, 2017), by amending Appendix A (Statutory Index) and
the Commentary to Sec. 2N2.1 (Violations of Statutes and Regulations
Dealing with Any Food, Drug, Biological Product, Device, Cosmetic,
Agricultural Product, or Consumer Product). It also makes a technical
correction to the Commentary to Sec. 2N1.1 (Tampering or Attempting to
Tamper Involving Risk of Death or Bodily Injury). An issue for comment
is also provided.
Part B responds to the FAA Reauthorization Act of 2018, Pub. L.
115-254 (Oct. 8, 2018), by amending Appendix A and Sec. 2A5.2
(Interference with Flight Crew Member or Flight Attendant; Interference
with Dispatch, Navigation, Operation, or Maintenance of Mass
Transportation Vehicle), as well as the commentaries to Sec. 2A2.4
(Obstructing or Impeding Officers) and Sec. 2X5.2 (Class A
Misdemeanors (Not Covered by Another Specific Offense Guideline)). An
issue for comment is also provided.
Part C responds to the Allow States and Victims to Fight Online Sex
Trafficking Act of 2017, Pub. L. 115-164 (Apr. 11, 2018), by amending
Appendix A, Sec. 2G1.1 (Promoting a Commercial Sex Act or Prohibited
Sexual Conduct with an Individual Other than a Minor), and 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).
Issues for comment are also provided.
Part D responds to a guideline application issue concerning the
interaction of Sec. 2G1.3 and Sec. 3D1.2 (Grouping of Closely Related
Counts). Although subsection (d) of Sec. 3D1.2 specifies that offenses
covered by Sec. 2G1.1 are not grouped under the subsection, it does
not specify whether or not offenses covered by Sec. 2G1.3 are so
grouped. Part D amends Sec. 3D1.2(d) to provide that offenses covered
by Sec. 2G1.3, like offenses covered by Sec. 2G1.1, are not grouped
under subsection (d).
Part E revises the guidelines to address the fact that the Bureau
of Prisons (``BOP'') no longer operates a shock incarceration program
as described in Sec. 5F1.7 (Shock Incarceration Program (Policy
Statement)). Part E amends the Commentary to Sec. 5F1.7 to reflect the
fact that BOP no longer operates the program.
(A) FDA Reauthorization Act of 2017
Synopsis of Proposed Amendment: Part A of the proposed amendment
responds to the FDA Reauthorization Act of 2017, Pub. L. 115-52 (Aug.
18, 2017).
That act amended 21 U.S.C. Sec. 333 (Penalties [for certain
violations of the Federal Food, Drug, and Cosmetic Act]) to add a new
criminal offense for the manufacture or distribution of a counterfeit
drug. The new offense states that
any person who violates [21 U.S.C. Sec. 331(i)(3)] by knowingly
making, selling, or dispensing, or holding for sale or dispensing, a
counterfeit drug shall be imprisoned for not more than 10 years or
fined in accordance with title 18, United States Code, or both.
21 U.S.C. Sec. 333(b)(8). Section 331(i)(3) prohibits any action
which causes a drug to be a counterfeit drug, or the sale or
dispensing, or the holding for sale or dispensing, of a counterfeit
drug.
Currently, subsections (b)(1) through (b)(6) of 21 U.S.C. Sec. 333
are referenced in Appendix A (Statutory Index) to Sec. 2N2.1
(Violations of Statutes and Regulations Dealing With Any Food, Drug,
Biological Product, Device, Cosmetic, Agricultural Product, or Consumer
Product), and subsection (b)(7) is referenced to Sec. 2N1.1 (Tampering
or Attempting to Tamper Involving Risk of Death or Bodily Injury).
Newly-enacted subsection (b)(8) is not referenced to any guideline.
Part A of the proposed amendment would amend Appendix A to
reference 21 U.S.C. Sec. 333(b)(8) to Sec. 2N2.1. Part A would also
amend the Commentary to Sec. 2N2.1 to reflect that subsection (b)(8),
as well as subsections (b)(1) through (b)(6), of 21 U.S.C. Sec. 333
are all referenced to Sec. 2N2.1. Finally, Part A also makes a
technical change to the Commentary to Sec. 2N1.1, adding 21 U.S.C.
Sec. 333(b)(7) to the list of statutory provisions referenced to that
guideline.
An issue for comment is also provided.
Proposed Amendment:
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 21 U.S.C. Sec. 458 the following new line
reference:
``21 U.S.C. Sec. 333(b)(8).............. 2N2.1''.
The Commentary to Sec. 2N2.1 captioned ``Statutory Provisions'' is
amended by striking ``333(a)(1), (a)(2), (b)'' and inserting
``333(a)(1), (a)(2), (b)(1)-(6), (b)(8)''.
The Commentary to Sec. 2N1.1 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. Sec. 1365(a), (e)'' and inserting ``18
U.S.C. Sec. 1365(a), (e); 21 U.S.C. Sec. 333(b)(7). For additional
statutory provision(s), see Appendix A (Statutory Index)''.
Issue for Comment:
1. Part A of the proposed amendment references newly-enacted 21
U.S.C. Sec. 333(b)(8) to Sec. 2N2.1 (Violations of Statutes and
Regulations Dealing With Any Food, Drug, Biological Product, Device,
Cosmetic, Agricultural Product, or Consumer Product). The Commission
seeks comment on whether any additional changes to the guidelines are
required to account for section 333(b)(8)'s offense conduct.
Specifically, should the Commission amend Sec. 2N2.1 to provide a
higher or lower base offense level if 21 U.S.C. Sec. 333(b)(8) is the
offense of conviction? If so, what should that base offense level be
and why? Should the Commission add a specific offense characteristic to
Sec. 2N2.1 in response to section 333(b)(8)? If so, what should that
specific offense characteristic provide and why?
(B) FAA Reauthorization Act of 2018
Synopsis of Proposed Amendment: Part B of the Proposed Amendment
responds to the FAA Reauthorization Act of 2018, Pub. L. 115-254 (Oct.
8, 2018). That act created two new criminal offenses concerning the
operation of unmanned aircraft, commonly known as ``drones,'' and
[[Page 65417]]
added a new provision to an existing criminal statute that also
concerns drones.
The first new criminal offense, codified at 18 U.S.C. Sec. 39B
(Unsafe operation of unmanned aircraft), prohibits the unsafe operation
of drones. Specifically, section 39B(a)(1) prohibits any person from
operating an unmanned aircraft and knowingly interfering with the
operation of an aircraft carrying one or more persons in a manner that
poses an imminent safety hazard to the aircraft's occupants. Section
39B(a)(2) prohibits any person from operating an unmanned aircraft and
recklessly interfering with the operation of an aircraft carrying one
or more persons in a manner that poses an imminent safety hazard to the
aircraft's occupants. Section 39B(b) prohibits any person from
knowingly operating an unmanned aircraft near an airport runway without
authorization. A violation of any of these prohibitions is punishable
by a fine, not more than one year in prison, or both. A violation of
subsection (a)(2) that causes serious bodily injury or death is
punishable by a fine, not more than 10 years of imprisonment, or both.
A violation of subsection (a)(1) or subsection (b) that causes serious
bodily injury or death is punishable by a fine, imprisonment for any
term of years or for life, or both.
The second new criminal offense, codified at 18 U.S.C. Sec. 40A
(Operation of unauthorized unmanned aircraft over wildfires), generally
prohibits any individual from operating an unmanned aircraft and
knowingly or recklessly interfering with a wildfire suppression or with
law enforcement or emergency response efforts related to a wildfire
suppression. A violation of this offense is punishable by a fine,
imprisonment for not more than two years, or both.
The act also adds a new subsection (a)(5) to 18 U.S.C. Sec. 1752
(Restricted building or grounds). The new subsection prohibits anyone
from knowingly and willfully operating an unmanned aircraft system with
the intent to knowingly and willfully direct or otherwise cause the
system to enter or operate within or above a restricted building or
grounds. A violation of section 1752 is punishable by a fine,
imprisonment for not more than one year, or both. If the violator used
or carried a deadly or dangerous weapon or firearm or if the offense
results in significant bodily injury, the maximum term of imprisonment
increases to ten years.
Part B of the proposed amendment would amend Appendix A (Statutory
Index) to reference 18 U.S.C. Sec. 39B to Sec. 2A5.2 (Interference
with Flight Crew Member or Flight Attendant; Interference with
Dispatch, Navigation, Operation, or Maintenance of Mass Transportation
Vehicle) and Sec. 2X5.2 (Class A Misdemeanors (Not Covered by Another
Specific Offense Guideline)). Accordingly, courts would use Sec. 2A5.2
for felony violations of section 39B and Sec. 2X5.2 for misdemeanor
violations. Part B would also make conforming changes to Sec. 2A5.2
and its commentary and to the Commentary to Sec. 2X5.2.
In addition, Part B would amend Appendix A to reference 18 U.S.C.
Sec. 40A to Sec. 2A2.4 (Obstructing or Impeding Officers). Part B
would also make conforming changes to the Commentary to Sec. 2A2.4.
Section 1752 is currently referenced in Appendix A to Sec. 2A2.4
and Sec. 2B2.3 (Trespass). Accordingly, courts would use those
guidelines for felony violations of newly-enacted 18 U.S.C. Sec.
1752(a)(5). Part B would make no changes to the guidelines to account
for that provision.
An issue for comment is also provided.
Proposed Amendment:
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 18 U.S.C. Sec. 43'' the following new line
references:
``18 U.S.C. Sec. 39B................. 2A5.2, 2X5.2
18 U.S.C. Sec. 40A................... 2A2.4''.
Section 2A5.2 is amended in the heading by striking ``Vehicle'' and
inserting ``Vehicle; Unsafe Operation of Unmanned Aircraft''.
The Commentary to Sec. 2A5.2 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. Sec. 1992(a)(1)'' and inserting ``18
U.S.C. Sec. Sec. 39B, 1992(a)(1)''.
The Commentary to Sec. 2X5.2 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. Sec. Sec. 1365(f)'' and inserting ``18
U.S.C. Sec. Sec. 39B, 1365(f)'', and by striking ``49 U.S.C. Sec.
31310'' and inserting ``49 U.S.C. Sec. 31310. For additional statutory
provision(s), see Appendix A (Statutory Index)''.
The Commentary to Sec. 2A2.4 captioned ``Statutory Provisions'' is
amended by striking ``18 U.S.C. Sec. Sec. 111'' and inserting ``18
U.S.C. Sec. Sec. 40A, 111''.
Issue for Comment:
1. In response to the FAA Reauthorization Act of 2018, Pub. L. 115-
254 (Oct. 8, 2018), Part B of the proposed amendment references newly-
enacted 18 U.S.C. Sec. 39B to Sec. 2A5.2 (Interference with Flight
Crew Member or Flight Attendant; Interference with Dispatch,
Navigation, Operation, or Maintenance of Mass Transportation Vehicle)
and Sec. 2X5.2 (Class A Misdemeanors (Not Covered by Another Specific
Offense Guideline)). Part B also references newly-enacted 18 U.S.C.
Sec. 40A to Sec. 2A2.4 (Obstructing or Impeding Officers). The
Commission seeks comment on whether these proposed references are
appropriate and whether any additional changes to the guidelines are
required to account for the new criminal offenses created by the FAA
Reauthorization Act.
(C) Allow States and Victims to Fight Online Sex Trafficking Act of
2017
Synopsis of Proposed Amendment: Part C of the proposed amendment
responds to the Allow States and Victims to Fight Online Sex
Trafficking Act of 2017, Pub. L. 115-164 (Apr. 11, 2018).
That act created two new criminal offenses codified at 18 U.S.C.
Sec. 2421A (Promotion or facilitation of prostitution and reckless
disregard of sex trafficking). The first new offense, codified at 18
U.S.C. Sec. 2421A(a), provides that [w]hoever, using a facility or
means of interstate or foreign commerce or in or affecting interstate
or foreign commerce, owns, manages, or operates an interactive computer
service . . . , or conspires or attempts to do so, with the intent to
promote or facilitate the prostitution of another person shall be fined
under this title, imprisoned for not more than 10 years, or both.
The second new offense, codified at 18 U.S.C. Sec. 2421A(b), is an
aggravated form of the first. It provides an enhanced statutory maximum
penalty of 25 years for anyone who commits the first offense and either
``(1) promotes or facilitates the prostitution of 5 or more persons''
or ``(2) acts in reckless disregard of the fact that such conduct
contributed to sex trafficking, in violation of [18 U.S.C. Sec. ]
1591(a).'' Section 1591(a) criminalizes sex trafficking of a minor or
sex trafficking of anyone by force, threats of force, fraud, or
coercion.
Part C of the proposed amendment would amend Appendix A (Statutory
Index) to reference 18 U.S.C. Sec. 2421A to Sec. 2G1.1 (Promoting a
Commercial Sex Act or Prohibited Sexual Conduct with an Individual
Other than a Minor) and 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). Offenses involving the promotion or
facilitation of commercial sex acts are generally referenced to these
guidelines.
[[Page 65418]]
If the offense did not involve a minor, Sec. 2G1.1 would be the
applicable guideline. For a defendant convicted under 18 U.S.C. Sec.
2421A, subsection (a)(2) would apply, and the defendant's base offense
level would be level 14. Part C would amend Sec. 2G1.1(b)(1) so that
the four-level increase in the defendant's offense level provided by
that specific offense characteristic would also apply if subsection
(a)(2) applies and [the offense of conviction is] [the offense involved
conduct described in] 18 U.S.C. Sec. 2421A(b)(2). Section 2421A(b)(2)
is the version of the new aggravated offense under which the defendant
has acted in reckless disregard of the fact that his or her conduct
contributed to sex trafficking in violation of 18 U.S.C. Sec. 1591(a).
If the offense involved a minor, Sec. 2G1.3 would be the
applicable guideline. For a defendant convicted under 18 U.S.C. Sec.
2421A, subsection (a)(4) would apply, and the defendant's base offense
level would be level 24. Part C would amend Sec. 2G1.3(b)(4) to
renumber the existing specific offense characteristic as Sec.
2G1.3(b)(4)(A) and to add a new Sec. 2G1.3(b)(4)(B), which provides
for a [4]-level increase in the defendant's offense level if (i)
subsection (a)(4) applies; and (ii) [the offense of conviction is] [the
offense involved conduct described in] 18 U.S.C. Sec. 2421A(b)(2).
Only the greater of Sec. 2G1.3(b)(4)(A) or Sec. 2G1.3(b)(4)(B) would
apply.
Part C also would amend the Commentary to Sec. 2G1.3 to add a new
application note instructing that if 18 U.S.C. Sec. 2421A is the
offense of conviction, the specific offense characteristic at Sec.
2G1.3(b)(3)(B) does not apply. That special offense characteristic
provides for a two-level increase in the defendant's offense level if
the offense involved the use of a computer or an interactive computer
service to entice, encourage, offer, or solicit a person to engage in
prohibited sexual conduct with a minor.
Finally, Part C would make conforming changes to Sec. Sec. 2G1.1
and 2G1.3 and their commentaries.
Issues for comment are also provided.
Proposed Amendment:
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 18 U.S.C. Sec. 2422 the following new line
reference:
``18 U.S.C. Sec. 2421A.................. 2G1.1, 2G1.3''.
Section 2G1.1(b)(1)(B) is amended by striking ``the offense
involved fraud or coercion'' and inserting ``(i) the offense involved
fraud or coercion, or (ii) [the offense of conviction is] [the offense
involved conduct described in] 18 U.S.C. Sec. 2421(A)(b)(2)''.
The Commentary to Sec. 2G1.1 captioned ``Statutory Provisions'' is
amended by striking ``2422(a) (only if the offense involved a victim
other than a minor)'' and inserting ``2421A (only if the offense
involved a victim other than a minor), 2422(a) (only if the offense
involved a victim other than a minor). For additional statutory
provision(s), see Appendix A (Statutory Index)''.
Section 2G1.3(b) is amended in paragraph (4) by striking the
following:
``If (A) the offense involved the commission of a sex act or sexual
contact; or (B) subsection (a)(3) or (a)(4) applies and the offense
involved a commercial sex act, increase by 2 levels.'',
and inserting the following:
``(Apply the greater):
(A) If (i) the offense involved the commission of a sex act or
sexual contact; or (ii) subsection (a)(3) or (a)(4) applies and the
offense involved a commercial sex act, increase by 2 levels.
(B) If (i) subsection (a)(4) applies; and (ii) [the offense of
conviction is][the offense involved conduct described in] 18 U.S.C.
Sec. 2421A(b)(2), increase by [4] levels.''.
The Commentary to Sec. 2G1.3 captioned ``Statutory Provisions'' is
amended by striking ``2422 (only if the offense involved a minor),
2423, 2425'' and inserting ``2421A (only if the offense involved a
minor), 2422 (only if the offense involved a minor), 2423, 2425. For
additional statutory provision(s), see Appendix A (Statutory Index)''.
The Commentary to Sec. 2G1.3 captioned ``Application Notes'' is
amended by redesignating Notes 5, 6, and 7 as Notes 6, 7, and 8,
respectively, and inserting the following new Note 5:
``5. Application of Subsection (b)(3)(B) when the Offense of
Conviction is 18 U.S.C. Sec. 2421A.--If the offense of conviction is
18 U.S.C. Sec. 2421A, do not apply subsection (b)(3)(B).''.
Issues for Comment:
1. Part C of the proposed amendment would reference newly-enacted
18 U.S.C. Sec. 2421A to Sec. 2G1.1 (Promoting a Commercial Sex Act or
Prohibited Sexual Conduct with an Individual Other than a Minor) and
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), and would make various revisions to those
guidelines to account for the new statute's offense conduct. The
Commission seeks comment on whether the proposed revisions are
appropriate and on whether the Commission should make other changes to
the guidelines to account for section 2421A's offense conduct.
In particular, Part C would rely on the specific offense
characteristics and special instructions in Sec. Sec. 2G1.1 and 2G1.3
to produce the appropriate offense levels for the aggravated offense at
18 U.S.C. Sec. 2421A(b). Should the Commission account for the
aggravated offense in a different way, for example, by providing a
higher base offense level if a defendant is convicted of that offense?
If so, should the Commission use one of the base offense levels
currently provided for convictions under other offenses, such as level
28, provided by Sec. 2G1.3 for a conviction under 18 U.S.C. Sec.
2422(b) or 2423(a), or level 34, provided by Sec. Sec. 2G1.1 and 2G1.3
for a conviction under 18 U.S.C. Sec. 1591(b)(1)?
2. Newly-enacted 18 U.S.C. Sec. 2421A is codified in chapter 117
(Transportation for Illegal Sexual Activity and Related Crimes) of
title 18 of the United States Code, which contains statutes that
generally prohibit conduct intended to promote or facilitate
prostitution. Various guidelines refer to chapter 117, including Sec.
4B1.5 (Repeat and Dangerous Sex Offender Against Minors) and Sec.
5D1.2 (Term of Supervised Release). The Commission seeks comment on
whether it should amend those guidelines to account for 18 U.S.C. Sec.
2421A.
Specifically, Sec. 4B1.5 provides for increases in the defendant's
offense level if the offense of conviction is a ``covered sex crime.''
Application Note 2 of the Commentary to Sec. 4B1.5 states that a
``covered sex crime'' generally includes offenses under chapter 117 but
excludes from coverage the offenses of ``transmitting information about
a minor or filing a factual statement about an alien individual.''
Should the Commission also exclude 18 U.S.C. Sec. 2421A from the
definition of a ``covered sex crime''? If so, why? If not, why not?
Section 5D1.2 includes a policy statement recommending that the
court impose the statutory maximum term of supervised release if the
instant offense of conviction is a ``sex offense.'' Application Note 1
of the Commentary to Sec. 5D1.2 defines ``sex offense'' to mean, among
other things, an offense, perpetrated against a minor, under chapter
117, ``not including transmitting information about a minor or filing a
factual statement about an alien
[[Page 65419]]
individual.'' Should the Commission also exclude offenses under 18
U.S.C. Sec. 2421A from the definition of ``sex offense'' in
Application Note 1? If so, why? If not, why not?
(D) Grouping of Offenses Covered by Sec. 2G1.3
Synopsis of Proposed Amendment: Part D of the proposed amendment
revises Sec. 3D1.2 (Grouping of Closely Related Counts) to provide
that offenses covered by 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) are not grouped under Sec. 3D1.2(d).
Section 3D1.2 addresses the grouping of closely related counts for
purposes of determining the offense level when a defendant has been
convicted on multiple counts. Subsection (d) states that counts are
grouped together ``[w]hen 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.'' Subsection (d) also
contains lists of (1) guidelines for which the offenses covered by the
guideline are to be grouped under the subsection and (2) guidelines for
which the covered offenses are specifically excluded from grouping
under the subsection.
Section 2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual
Conduct with an Individual Other than a Minor) is included in the list
of guidelines for which the covered offenses are excluded from grouping
under Sec. 3D1.2(d). Section 2G1.3 is, however, not included on that
list, even though several offenses that are referenced to Sec. 2G1.3
when the offense involves a minor are referenced to Sec. 2G1.1 when
the offense involves an individual other than a minor. In addition,
several offenses that were referenced to Sec. 2G1.1 before Sec. 2G1.3
was promulgated are now referenced to Sec. 2G1.3. See USSG App. C,
Amendment 664 (effective Nov. 1, 2004). Furthermore, Application Note 6
of the Commentary to Sec. 2G1.3 states that multiple counts under
Sec. 2G1.3 are not to be grouped.
Section 2G1.3 is also not included on the list of guidelines for
which the covered offenses are to be grouped under Sec. 3D1.2(d).
Because Sec. 2G1.3 is included on neither list, Sec. 3D.1(d) provides
that ``grouping under [the] subsection may or may not be appropriate
and a ``case-by-case determination must be made based upon the facts of
the case and the applicable guideline (including specific offense
characteristics and other adjustments) used to determine the offense
level.''
Part D of the proposed amendment would amend Sec. 3D1.2(d) to add
Sec. 2G1.3 to the list of guidelines for which the covered offenses
are specifically excluded from grouping.
Proposed Amendment:
Section 3D1.2(d) is amended by striking ``Sec. Sec. 2G1.1, 2G2.1''
and inserting ``Sec. Sec. 2G1.1, 2G1.3, 2G2.1''.
(E) Policy Statement on Shock Incarceration Programs
Synopsis of Proposed Amendment: Part E of the proposed amendment
revises the guidelines to address the fact that the Bureau of Prisons
(``BOP'') no longer operates a shock incarceration program as described
in Sec. 5F1.7 (Shock Incarceration Program (Policy Statement)) and the
corresponding commentary.
Section 4046 of title 18, United States Code, authorizes BOP to
place any person who has been sentenced to a term of imprisonment of
more than 12 but not more than 30 months in a shock incarceration
program if the person consents to that placement. Sections 3582(a) and
3621(b)(4) of title 18 authorize a court, in imposing sentence, to make
a recommendation regarding the type of prison facility that would be
appropriate for the defendant. In making such a recommendation, the
court ``shall consider any pertinent policy statements issued by the
Sentencing Commission.'' 18 U.S.C. Sec. 3582(a).
Section 5F1.7 provides that, pursuant to sections 3582(a) and
3621(b)(4), a sentencing court may recommend that a defendant who meets
the criteria set forth in section 4046 participate in a shock
incarceration program. The Commentary to Sec. 5F1.7 describes the
authority for BOP to operate a shock incarceration program and the
procedures that the BOP established in 1990 regarding operation of such
a program.
In 2008, BOP terminated its shock incarceration program and removed
the rules governing its operation. Part E would amend the Commentary to
Sec. 5F1.7 to reflect those developments. Part E also would correct
two typographical errors in the commentary.
Proposed Amendment:
The Commentary to Sec. 5F1.7 captioned ``Background'' is amended
by--
striking ``six months'' and inserting ``6 months'';
striking ``as the Bureau deems appropriate. 18 U.S.C. Sec. 4046.'
'' and inserting ``as the Bureau deems appropriate.' 18 U.S.C. Sec.
4046.'';
and by striking the final paragraph as follows:
``The Bureau of Prisons has issued an operations memorandum (174-90
(5390), November 20, 1990) that outlines eligibility criteria and
procedures for the implementation of this program (which the Bureau of
Prisons has titled ``intensive confinement program''). Under these
procedures, the Bureau will not place a defendant in an intensive
confinement program unless the sentencing court has approved, either at
the time of sentencing or upon consultation after the Bureau has
determined that the defendant is otherwise eligible. In return for the
successful completion of the ``intensive confinement'' portion of the
program, the defendant is eligible to serve the remainder of his term
of imprisonment in a graduated release program comprised of community
corrections center and home confinement phases.'',
and inserting the following:
``In 1990, the Bureau of Prisons (`BOP') issued an operations
memorandum (174-90 (5390), November 20, 1990) that outlined eligibility
criteria and procedures for the implementation of a shock incarceration
program (which the Bureau of Prisons titled the ``intensive confinement
program''). In 2008, however, BOP terminated the program and removed
the rules governing its operation. See 73 Fed. Reg. 39863 (July 11,
2008).''.
4. Technical Amendment
Synopsis of Proposed Amendment: This proposed amendment makes
various technical changes to the Guidelines Manual.
Part A of the proposed amendment makes technical changes to reflect
the editorial reclassification of certain sections in the United States
Code. Effective December 1, 2015, the Office of Law Revision Counsel
eliminated the Appendix to Title 50 of the United States Code and
transferred the non-obsolete provisions to new chapters 49 to 57 of
Title 50 and to other titles of the Code. To reflect the new section
numbers of the reclassified provisions, Part A of the proposed
amendment makes changes to Sec. 2M4.1 (Failure to Register and Evasion
of Military Service), Sec. 2M5.1 (Evasion of Export Controls;
Financial Transactions with
[[Page 65420]]
Countries Supporting International Terrorism), and Appendix A
(Statutory Index). Similarly, effective September 1, 2016, the Office
of Law Revision Counsel also transferred certain provisions from
Chapter 14 of Title 25 to four new chapters in Title 25 in order to
improve the organization of the title. To reflect these changes, Part A
of the proposed amendment makes further changes to Appendix A.
Part B of the proposed amendment makes certain technical changes to
the Commentary to Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy). First, Part B of the proposed
amendment amends the Drug Conversion Tables at Application Note 8(D)
and the Typical Weight Per Unit Table at Application Note 9, to
reorganize the controlled substances contained therein in alphabetical
order to make the tables more user-friendly. It also makes minor
changes to the controlled substance references to promote consistency
in the use of capitalization, commas, parentheticals, and slash symbols
throughout the Drug Conversion Tables. For example, the proposed
amendment would change the reference to ``Phencyclidine (actual)/PCP
(actual)'' to ``Phencyclidine (PCP) (actual).'' Second, Part B of the
proposed amendment makes clerical changes throughout the Commentary to
correct some typographical errors. Finally, Part B of the proposed
amendment amends the Background Commentary to add a specific reference
to amendment 808, which replaced the term ``marihuana equivalency''
with the new term ``converted drug weight'' and changed the title of
the ``Drug Equivalency Tables'' to ``Drug Conversion Tables.''
Part C of the proposed amendment makes technical changes to the
commentaries to Sec. 2A4.2 (Demanding or Receiving Ransom Money),
Sec. 2A6.1 (Threatening or Harassing Communications; Hoaxes; False
Liens), and Sec. 2B3.2 (Extortion by Force or Threat of Injury or
Serious Damage), and to Appendix A, to provide references to the
specific applicable provisions of 18 U.S.C. Sec. 876.
Part D of the proposed amendment makes clerical changes to--
(1) the Background Commentary to Sec. 1B1.11 (Use of Guidelines
Manual in Effect on Date of Sentencing (Policy Statement)), to update
the citation of a Supreme Court case;
(2) the Background Commentary to Sec. 3D1.1 (Procedure for
Determining Offense Level on Multiple Counts), to correct references to
certain chapters of the Guidelines Manual; and
(3) the Background Commentary to Sec. 5G1.3 (Imposition of a
Sentence on a Defendant Subject to an Undischarged Term of Imprisonment
or Anticipated State Term of Imprisonment), to update the citation of a
Supreme Court case.
Proposed Amendment:
(A) Reclassification of Sections of United States Code
The Commentary to Sec. 2M4.1 captioned ``Statutory Provisions'' is
amended by striking ``50 U.S.C. App. Sec. 462'' and inserting ``50
U.S.C. Sec. 3811''.
The Commentary to Sec. 2M5.1 captioned ``Statutory Provisions'' is
amended by striking ``50 U.S.C. App. Sec. Sec. 2401-2420'' and
inserting ``50 U.S.C. Sec. Sec. 4601-4623. For additional statutory
provision(s), see Appendix A (Statutory Index)''.
The Commentary to Sec. 2M5.1 captioned ``Application Notes'' is
amended--
in Note 3 by striking ``50 U.S.C. App. Sec. 2410'' and inserting
``50 U.S.C. Sec. 4610'';
and in Note 4 by striking ``50 U.S.C. App. 2405'' and inserting
``50 U.S.C. Sec. 4605''.
Appendix A (Statutory Index) is amended--
in the line referenced to 25 U.S.C. Sec. 450d by striking ``Sec.
450d'' and inserting ``Sec. 5306'';
and by striking the lines referenced to 50 U.S.C. App. Sec. 462,
50 U.S.C. App. Sec. 527(e), and 50 U.S.C. App. Sec. 2410, and
inserting before the line referenced to 52 U.S.C. Sec. 10307(c) the
following new line references:
``50 U.S.C. Sec. 3811................... 2M4.1
50 U.S.C. Sec. 3937..................... 2X5.2
50 U.S.C. Sec. 4610..................... 2M5.1''.
(B) Technical Changes to Commentary to Sec. 2D1.1
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended--
in Note 8(A) by striking ``the statute (21 U.S.C. Sec. 841(b)(1)),
as the primary basis'' and inserting ``the statute (21 U.S.C. Sec.
841(b)(1)) as the primary basis'', and by striking ``fentanyl, LSD and
marihuana'' and inserting ``fentanyl, LSD, and marihuana'';
in Note 8(D)--
under the heading relating to Schedule I or II Opiates, by striking
the following:
``1 gm of Heroin = 1 kg
1 gm of Dextromoramide = 670 gm
1 gm of Dipipanone = 250 gm
1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine/MPPP = 700 gm
1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine/PEPAP = 700
gm
1 gm of Alphaprodine = 100 gm
1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
Propanamide) = 2.5 kg
1 gm of a Fentanyl Analogue = 10 kg
1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg
1 gm of Levorphanol = 2.5 kg
1 gm of Meperidine/Pethidine = 50 gm
1 gm of Methadone = 500 gm
1 gm of 6-Monoacetylmorphine = 1 kg
1 gm of Morphine = 500 gm
1 gm of Oxycodone (actual) = 6700 gm
1 gm of Oxymorphone = 5 kg
1 gm of Racemorphan = 800 gm
1 gm of Codeine = 80 gm
1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm
1 gm of Ethylmorphine = 165 gm
1 gm of Hydrocodone (actual) = 6700 gm
1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm
1 gm of Opium = 50 gm
1 gm of Levo-alpha-acetylmethadol (LAAM) = 3 kg'',
and inserting the following:
``1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine (PEPAP) =
700 gm
1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine (MPPP) = 700 gm
1 gm of 6-Monoacetylmorphine = 1 kg
1 gm of Alphaprodine = 100 gm
1 gm of Codeine = 80 gm
1 gm of Dextromoramide = 670 gm
1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm
1 gm of Dipipanone = 250 gm
1 gm of Ethylmorphine = 165 gm
1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
Propanamide) = 2.5 kg
1 gm of a Fentanyl Analogue = 10 kg
1 gm of Heroin = 1 kg
1 gm of Hydrocodone (actual) = 6,700 gm
1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg
1 gm of Levo-alpha-acetylmethadol (LAAM) = 3 kg
1 gm of Levorphanol = 2.5 kg
1 gm of Meperidine/Pethidine = 50 gm
1 gm of Methadone = 500 gm
1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm
1 gm of Morphine = 500 gm
1 gm of Opium = 50 gm
1 gm of Oxycodone (actual) = 6,700 gm
1 gm of Oxymorphone = 5 kg
1 gm of Racemorphan = 800 gm'';
under the heading relating to Cocaine and Other Schedule I and II
Stimulants (and their immediate precursors), by striking the following:
``1 gm of Cocaine = 200 gm
1 gm of N-Ethylamphetamine = 80 gm
1 gm of Fenethylline = 40 gm
1 gm of Amphetamine = 2 kg
1 gm of Amphetamine (Actual) = 20 kg
1 gm of Methamphetamine = 2 kg
1 gm of Methamphetamine (Actual) = 20 kg
1 gm of ``Ice'' = 20 kg
1 gm of Khat = .01 gm
1 gm of 4-Methylaminorex (``Euphoria'') = 100 gm
1 gm of Methylphenidate (Ritalin) = 100 gm
1 gm of Phenmetrazine = 80 gm
[[Page 65421]]
1 gm Phenylacetone/P2P (when possessed for the purpose of
manufacturing methamphetamine) = 416 gm
1 gm Phenylacetone/P2P (in any other case) = 75 gm
1 gm Cocaine Base (``Crack'') = 3,571 gm
1 gm of Aminorex = 100 gm
1 gm of N-N-Dimethylamphetamine = 40 gm
1 gm of N-Benzylpiperazine = 100 gm'',
and inserting the following:
``1 gm of 4-Methylaminorex (``Euphoria'') = 100 gm
1 gm of Aminorex = 100 gm
1 gm of Amphetamine = 2 kg
1 gm of Amphetamine (actual) = 20 kg
1 gm of Cocaine = 200 gm
1 gm of Cocaine Base (``Crack'') = 3,571 gm
1 gm of Fenethylline = 40 gm
1 gm of ``Ice'' = 20 kg
1 gm of Khat = .01 gm
1 gm of Methamphetamine = 2 kg
1 gm of Methamphetamine (actual) = 20 kg
1 gm of Methylphenidate (Ritalin) = 100 gm
1 gm of N-Benzylpiperazine = 100 gm
1 gm of N-Ethylamphetamine = 80 gm
1 gm of N-N-Dimethylamphetamine = 40 gm
1 gm of Phenmetrazine = 80 gm
1 gm of Phenylacetone (P2P) (when possessed for the
purpose of manufacturing methamphetamine) = 416 gm
1 gm of Phenylacetone (P2P) (in any other case) = 75
gm'';
Under the heading relating to Synthetic Cathinones (except Schedule
III, IV, and V Substances), by striking ``a synthetic cathinone'' and
inserting ``a Synthetic Cathinone'';
Under the heading relating to LSD, PCP, and Other Schedule I and II
Hallucinogens (and their immediate precursors), by striking the
following:
``1 gm of Bufotenine = 70 gm
1 gm of D-Lysergic Acid Diethylamide/Lysergide/LSD = 100 kg
1 gm of Diethyltryptamine/DET = 80 gm
1 gm of Dimethyltryptamine/DM = 100 gm
1 gm of Mescaline = 10 gm
1 gm of Mushrooms containing Psilocin and/or Psilocybin (Dry) = 1 gm
1 gm of Mushrooms containing Psilocin and/or Psilocybin (Wet) = 0.1
gm
1 gm of Peyote (Dry) = 0.5 gm
1 gm of Peyote (Wet) = 0.05 gm
1 gm of Phencyclidine/PCP = 1 kg
1 gm of Phencyclidine (actual)/PCP (actual) = 10 kg
1 gm of Psilocin = 500 gm
1 gm of Psilocybin = 500 gm
1 gm of Pyrrolidine Analog of Phencyclidine/PHP = 1 kg
1 gm of Thiophene Analog of Phencyclidine/TCP = 1 kg
1 gm of 4-Bromo-2,5-Dimethoxyamphetamine/DOB = 2.5 kg
1 gm of 2,5-Dimethoxy-4-methylamphetamine/DOM = 1.67 kg
1 gm of 3,4-Methylenedioxyamphetamine/MDA = 500 gm
1 gm of 3,4-Methylenedioxymethamphetamine/MDMA = 500 gm
1 gm of 3,4-Methylenedioxy-N-ethylamphetamine/MDEA = 500 gm
1 gm of Paramethoxymethamphetamine/PMA = 500 gm
``1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC = 680 gm
1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 1 kg'',
and inserting the following:
``1 gm of 1-Piperidinocyclohexanecarbonitrile (PCC) = 680 gm
1 gm of 4-Bromo-2,5-Dimethoxyamphetamine (DOB) = 2.5 kg
1 gm of 2,5-Dimethoxy-4-methylamphetamine (DOM) = 1.67 kg
1 gm of 3,4-Methylenedioxyamphetamine (MDA) = 500 gm
1 gm of 3,4-Methylenedioxymethamphetamine (MDMA) = 500 gm
1 gm of 3,4-Methylenedioxy-N-ethylamphetamine (MDEA) = 500 gm
1 gm of Bufotenine = 70 gm
1 gm of D-Lysergic Acid Diethylamide/Lysergide (LSD) = 100 kg
1 gm of Diethyltryptamine (DET) = 80 gm
1 gm of Dimethyltryptamine (DM) = 100 gm
1 gm of Mescaline = 10 gm
1 gm of Mushrooms containing Psilocin and/or Psilocybin (dry) = 1 gm
1 gm of Mushrooms containing Psilocin and/or Psilocybin (wet) = 0.1
gm
1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 1 kg
1 gm of Paramethoxymethamphetamine (PMA) = 500 gm
1 gm of Peyote (dry) = 0.5 gm
1 gm of Peyote (wet) = 0.05 gm
1 gm of Phencyclidine (PCP) = 1 kg
1 gm of Phencyclidine (PCP) (actual) = 10 kg
1 gm of Psilocin = 500 gm
1 gm of Psilocybin = 500 gm
1 gm of Pyrrolidine Analog of Phencyclidine (PHP) = 1 kg
1 gm of Thiophene Analog of Phencyclidine (TCP) = 1 kg'';
under the heading relating to Schedule I Marihuana, by striking the
following:
``1 gm of Marihuana/Cannabis, granulated, powdered, etc. = 1 gm
1 gm of Hashish Oil = 50 gm
1 gm of Cannabis Resin or Hashish = 5 gm
1 gm of Tetrahydrocannabinol, Organic = 167 gm
1 gm of Tetrahydrocannabinol, Synthetic = 167 gm'',
and inserting the following:
``1 gm of Cannabis Resin or Hashish = 5 gm
1 gm of Hashish Oil = 50 gm
1 gm of Marihuana/Cannabis (granulated, powdered, etc.) = 1 gm
1 gm of Tetrahydrocannabinol (organic) = 167 gm
1 gm of Tetrahydrocannabinol (synthetic) = 167 gm'';
under the heading relating to Synthetic Cannabinoids (except
Schedule III, IV, and V Substances), by striking ``a synthetic
cannabinoid'' and inserting ``a Synthetic Cannabinoid'', and by
striking ```Synthetic cannabinoid,' for purposes of this guideline''
and inserting ```Synthetic Cannabinoid,' for purposes of this
guideline'';
under the heading relating to Schedule I or II Depressants (except
gamma-hydroxybutyric acid), by striking ``except gamma-hydroxybutyric
acid'' both places such term appears and inserting ``except Gamma-
hydroxybutyric Acid'';
under the heading relating to Gamma-hydroxybutyric Acid, by
striking ``of gamma-hydroxybutyric acid'' and inserting ``of Gamma-
hydroxybutyric Acid'';
under the heading relating to Schedule III Substances (except
ketamine), by striking ``except ketamine'' in the heading and inserting
``except Ketamine'';
under the heading relating to Ketamine, by striking ``of ketamine''
and inserting ``of Ketamine'';
under the heading relating to Schedule IV (except flunitrazepam),
by striking ``except flunitrazepam'' in the heading and inserting
``except Flunitrazepam'';
under the heading relating to List I Chemicals (relating to the
manufacture of amphetamine or methamphetamine), by striking ``of
amphetamine or methamphetamine'' and inserting ``of Amphetamine or
Methamphetamine'';
under the heading relating to Date Rape Drugs (except
flunitrazepam, GHB, or ketamine), by striking ``except flunitrazepam,
GHB, or ketamine'' and inserting ``except Flunitrazepam, GHB, or
Ketamine'', by striking ``of 1,4-butanediol'' and inserting ``of 1,4-
Butanediol'', and by striking ``of gamma butyrolactone'' and inserting
``of Gamma Butyrolactone'';
in Note 9, under the heading relating to Hallucinogens, by striking
the following:
``MDA.................................. 250 mg
MDMA................................... 250 mg
Mescaline.............................. 500 mg
PCP *.................................. 5 mg
Peyote (dry)........................... 12 gm
Peyote (wet)........................... 120 gm
Psilocin *............................. 10 mg
Psilocybe mushrooms (dry).............. 5 gm
Psilocybe mushrooms (wet).............. 50 gm
Psilocybin *........................... 10 mg
2,5-Dimethoxy-4-methylamphetamine (STP, 3 mg'',
DOM) *.
and inserting the following:
``2,5-Dimethoxy-4-methylamphetamine 3 mg
(STP, DOM) *.
MDA.................................... 250 mg
MDMA................................... 250 mg
Mescaline.............................. 500 mg
[[Page 65422]]
PCP *.................................. 5 mg
Peyote (dry)........................... 12 gm
Peyote (wet)........................... 120 gm
Psilocin *............................. 10 mg
Psilocybe mushrooms (dry).............. 5 gm
Psilocybe mushrooms (wet).............. 50 gm
Psilocybin *........................... 10 mg'';
and in Note 21, by striking ``Section Sec. 5C1.2(b)'' and
inserting ``Section 5C1.2(b)''.
The Commentary to Sec. 2D1.1 captioned ``Background'' is amended
by striking ``Public Law 103-237'' and inserting ``Public Law 104-
237'', and by inserting after ``to change the title of the Drug
Equivalency Tables to the `Drug Conversion Tables.''' the following:
``See USSG App. C, Amendment 808 (effective November 1, 2018).''.
(C) References to 18 U.S.C. Sec. 876
The Commentary to Sec. 2A4.2 captioned ``Statutory Provisions'' is
amended by striking ``Sec. Sec. 876,'' and inserting ``Sec. Sec.
876(a),''.
The Commentary to Sec. 2A6.1 captioned ``Statutory Provisions'' is
amended by striking ``876,'' and inserting ``876(c),''.
The Commentary to Sec. 2B3.2 captioned ``Statutory Provisions'' is
amended by striking ``Sec. Sec. 875(b), 876,'' and inserting
``Sec. Sec. 875(b), (d), 876(b), (d),''.
Appendix A (Statutory Index) is amended by striking the line
referenced to 18 U.S.C. Sec. 876 and inserting before the line
referenced to 18 U.S.C. Sec. 877 the following new line references:
``18 U.S.C. Sec. 876(a).............. 2A4.2, 2B3.2
18 U.S.C. Sec. 876(b)................ 2B3.2
18 U.S.C. Sec. 876(c)................ 2A6.1
18 U.S.C. Sec. 876(d)................ 2B3.2, 2B3.3''.
(D) Clerical Changes
The Commentary to Sec. 1B1.11 captioned ``Background'' is amended
by striking ``133 S. Ct. 2072, 2078'' and inserting ``569 U.S. 530,
533''.
The Commentary to Sec. 3D1.1 captioned ``Background'' is amended
by striking ``Chapter 3, Part E (Acceptance of Responsibility) and
Chapter 4, Part B (Career Offenders and Criminal Livelihood)'' and
inserting ``Chapter Three, Part E (Acceptance of Responsibility) and
Chapter Four, Part B (Career Offenders and Criminal Livelihood)''.
The Commentary to Sec. 5G1.3 captioned ``Background'' is amended
by striking ``122 S. Ct. 1463, 1468'' and inserting ``566 U.S. 231,
236'', and by striking ``132 S. Ct. at 1468'' and inserting ``566 U.S.
at 236''.
[FR Doc. 2018-27505 Filed 12-19-18; 8:45 am]
BILLING CODE 2210-40-P
