Sentencing Guidelines for United States Courts

Cited as83 FR 65400
CourtUnited States Sentencing Commission
Publication Date20 Dec 2018
Record Number2018-27505
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