Sentencing Guidelines for United States Courts, 40651-40666 [2017-18076]

Download as PDF Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice and Procedure 4.4. scope of the hearing, will be provided by the Commission on its Web site at www.ussc.gov. William H. Pryor, Jr., Acting Chair. BILLING CODE 2210–40–P UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts 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. AGENCY: 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 October 10, 2017. Written reply comments, which may only respond to issues raised in the original comment period, should be received by the Commission not later than November 6, 2017. Public comment regarding a proposed amendment received after the close of the comment period, and reply comment received on issues not raised in 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 sradovich on DSK3GMQ082PROD with NOTICES SUMMARY: VerDate Sep<11>2014 17:40 Aug 24, 2017 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 20002–8002, Attention: Public Affairs. 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. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. 994(p). Publication of a proposed amendment requires the affirmative vote of at least three voting members of the Commission and is deemed to be a request for public comment on the proposed amendment. See Rules 2.2 and 4.4 of the Commission’s Rules of Practice and Procedure. In contrast, the affirmative vote of at least four voting members is required to promulgate an amendment and submit it to Congress. See Rule 2.2; 28 U.S.C. 994(p). The proposed amendments in this notice are presented in one of two formats. First, some of the amendments are proposed as specific revisions to a guideline, policy statement, or commentary. Bracketed text within a proposed amendment indicates a heightened interest on the Commission’s part in comment and suggestions regarding alternative policy choices; for example, a proposed enhancement of [2][4][6] levels indicates that the Commission is considering, and invites comment on, alternative policy choices regarding the appropriate level of enhancement. Similarly, bracketed text within a specific offense characteristic or application note means that the Commission specifically invites comment on whether the proposed provision is appropriate. Second, the Commission has highlighted certain issues for comment and invites ADDRESSES: [FR Doc. 2017–18077 Filed 8–24–17; 8:45 am] Jkt 241001 PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 40651 suggestions on how the Commission should respond to those issues. In summary, the proposed amendments and issues for comment set forth in this notice are as follows: (1) A multi-part proposed amendment to respond to the Bipartisan Budget Act of 2015, Public Law 114–74 (Nov. 2, 2015), including (A) revisions to Appendix A (Statutory Index), and a related issue for comment; and (B) amending § 2B1.1 (Theft, Property Destruction, and Fraud) to address new increased penalties for certain persons who commit fraud offenses under certain Social Security programs, and related issues for comment; (2) a multi-part proposed amendment relating to the findings and recommendations contained in the May 2016 Report of the Commission’s Tribal Issues Advisory Group, including (A) amending the Commentary to § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to set forth a non-exhaustive list of factors for the court to consider in determining whether, and to what extent, an upward departure based on a tribal court conviction is appropriate, and related issues for comment; and (B) amending the Commentary to § 1B1.1 (Application Instructions) to provide a definition of ‘‘court protection order,’’ and a related issue for comment; (3) a multi-part proposed amendment to Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence), including (A) setting forth options for a new Chapter Four guideline, at § 4C1.1 (First Offenders), and amending § 5C1.1 (Imposition of a Term of Imprisonment) to provide lower guideline ranges for ‘‘first offenders’’ generally and increase the availability of alternatives to incarceration for such offenders at the lower levels of the Sentencing Table, and related issues for comment; and (B) revising Chapter Five to (i) amend the Sentencing Table in Chapter Five, Part A to expand Zone B by consolidating Zones B and C and (ii) amend the Commentary to § 5F1.2 (Home Detention) to revise language requiring electronic monitoring, and related issues for comment. (4) a proposed amendment to the Commentary to § 3E1.1 (Acceptance of Responsibility) setting forth options to revise how a defendant’s challenge to relevant conduct should be considered in determining whether the defendant has accepted responsibility for purposes of the guideline, and a related issue for comment; (5) a multi-part proposed amendment to the Guidelines Manual to respond to recently enacted legislation and E:\FR\FM\25AUN1.SGM 25AUN1 sradovich on DSK3GMQ082PROD with NOTICES 40652 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices miscellaneous guideline issues, including (A) amending § 2B5.3 (Criminal Infringement of Copyright or Trademark) to respond to changes made by the Transnational Drug Trafficking Act of 2015, Public Law 114–154 (May 16, 2016); (B) amending § 2A3.5 (Failure to Register as a Sex Offender), § 2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender), and Appendix A (Statutory Index) to respond to changes made by the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders Act, Public Law 114–119 (Feb. 8, 2016); (C) revisions to Appendix A (Statutory Index) to respond to a new offense established by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, Public Law 114–182 (June 22, 2016); (D) a technical amendment to § 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 (E) amending § 5D1.3 (Conditions of Supervised Release) to respond to changes made by the Justice for All Reauthorization Act of 2016, Public Law 114–324 (Dec. 16, 2016). (6) a proposed amendment to make technical changes to § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to replace ‘‘marihuana equivalency’’ as the conversion factor in the Drug Equivalency Tables for determining penalties for certain controlled substances; (7) a proposed amendment to make various technical changes to the Guidelines Manual, including (A) an explanatory note in Chapter One, Part A, Subpart 1(4)(b) (Departures) and clarifying changes to the Commentary to § 2B1.1 (Theft, Property Destruction, and Fraud); (B) technical changes to § 4A1.2 (Definitions and Instructions for Computing Criminal History) and to the Commentary of other guidelines to correct title references to § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)); and (C) clerical changes to § 2D1.11 (Unlawful Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), § 5D1.3 (Conditions of Supervised Release), Appendix A VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 (Statutory Index), and to the Commentary of other guidelines. In addition, the Commission requests public comment regarding whether, pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any proposed amendment published in this notice should be included in subsection (d) of § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants. The Commission lists in § 1B1.10(d) the specific guideline amendments that the court may apply retroactively under 18 U.S.C. 3582(c)(2). The background commentary to § 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 § 1B1.10(b) as among the factors the Commission considers in selecting the amendments included in § 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 Web site at www.ussc.gov. Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice and Procedure 4.3, 4.4. William H. Pryor, Jr., Acting Chair. Proposed Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary 1. Bipartisan Budget Act Synopsis of Proposed Amendment: This proposed amendment responds to the Bipartisan Budget Act of 2015, Public Law 114–74 (Nov. 2, 2015), which, among other things, amended three existing criminal statutes concerned with fraudulent claims under certain Social Security programs. The three criminal statutes amended by the Bipartisan Budget Act of 2015 are sections 208 (Penalties [for fraud involving the Federal Old-Age and Survivors Insurance Trust Fund]), 811 (Penalties for fraud [involving special benefits for certain World War II veterans]), and 1632 (Penalties for fraud [involving supplemental security income for the aged, blind, and disabled]) of the Social Security Act (42 PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 U.S.C. 408, 1011, and 1383a, respectively). (A) Conspiracy To Commit Social Security Fraud The Bipartisan Budget Act of 2015 added new subdivisions prohibiting conspiracy to commit fraud for substantive offenses already contained in the three statutes (42 U.S.C. 408, 1011, and 1383a). For each of the three statutes, the new subdivision provides that whoever ‘‘conspires to commit any offense described in any of [the] paragraphs’’ enumerated shall be imprisoned for not more than five years, the same statutory maximum penalty applicable to the substantive offense. The three amended statutes are currently referenced in Appendix A (Statutory Index) to § 2B1.1 (Theft, Property Destruction, and Fraud). The proposed amendment would amend Appendix A so that sections 408, 1011, and 1383a of Title 42 are referenced not only to § 2B1.1 but also to § 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Office Guideline)). An issue for comment is provided. (B) Increased Penalties for Certain Individuals Violating Positions of Trust The Bipartisan Budget Act of 2015 also amended sections 408, 1011, and 1383a of Title 42 to add increased penalties for certain persons who commit fraud offenses under the relevant Social Security programs. The Act included a provision in all three statutes identifying such a person as: a person who receives a fee or other income for services performed in connection with any determination with respect to benefits under this title (including a claimant representative, translator, or current or former employee of the Social Security Administration), or who is a physician or other health care provider who submits, or causes the submission of, medical or other evidence in connection with any such determination . . . . A person who meets this requirement and is convicted of a fraud offense under one of the three amended statutes may be imprisoned for not more than ten years, double the otherwise applicable five-year penalty for other offenders. The new increased penalties apply to all of the fraudulent conduct in subsection (a) of the three statutes. The proposed amendment would amend § 2B1.1 to address cases in which the defendant was convicted under 42 U.S.C. 408(a), 1011(a), or 1383a(a) and the statutory maximum term of ten years’ imprisonment applies. E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices It provides an enhancement of [4][2] levels and a minimum offense level of [14][12] for such cases. It also adds Commentary specifying whether an adjustment under § 3B1.3 (Abuse of Position of Trust or Use of Special Skill) applies — bracketing two possibilities: if the enhancement applies, the adjustment does not apply; and if the enhancement applies, the adjustment is not precluded from applying. Issues for comment are also provided. (A) Conspiracy To Commit Social Security Fraud Proposed Amendment Appendix A (Statutory Index) is amended in the line referenced to 42 U.S.C. 408 by inserting ‘‘, 2X1.1’’ at the end; in the line referenced to 42 U.S.C. 1011 by inserting ‘‘, 2X1.1’’ at the end; and in the line referenced to 42 U.S.C. 1383a(a) by inserting ‘‘, 2X1.1’’ at the end. Issue for Comment 1. Part A of the proposed amendment would reference the new conspiracy offenses under 42 U.S.C. 408, 1011, and 1383a to § 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Office Guideline)). The Commission invites comment on whether the guidelines covered by the proposed amendment adequately account for these offenses. If not, what revisions to the guidelines would be appropriate to account for these offenses? Should the Commission reference these new offenses to other guidelines instead of, or in addition to, the guidelines covered by the proposed amendment? sradovich on DSK3GMQ082PROD with NOTICES (B) Increased Penalties for Certain Individuals Violating Positions of Trust Proposed Amendment Section 2B1.1(b) is amended by redesignating paragraphs (13) through (19) as paragraphs (14) through (20), respectively, and by inserting the following new paragraph (13): ‘‘(13) If the defendant was convicted under 42 U.S.C. 408(a), 1011(a), or 1383a(a) and the statutory maximum term of ten years’ imprisonment applies, increase by [4][2] levels. If the resulting offense level is less than [14][12], increase to level [14][12].’’. The Commentary to § 2B1.1 captioned ‘‘Application Notes’’ is amended by redesignating Notes 11 through 20 as Notes 12 through 21, respectively, and by inserting the following new Note 11: ‘‘11. Interaction of Subsection (b)(13) and § 3B1.3.—[If subsection (b)(13) applies, do not apply § 3B1.3 (Abuse of Position of Trust or Use of Special VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 Skill).][Application of subsection (b)(13) does not preclude a defendant from consideration for an adjustment under § 3B1.3 (Abuse of Position of Trust or Use of Special Skill).]’’. Issues for Comment 1. The Bipartisan Budget Act of 2015 amended sections 408, 1011, and 1383a of Title 42 to include a provision in all three statutes increasing the statutory maximum term of imprisonment from five years to ten years for certain persons who commit fraud offenses under subsection (a) of the three statutes. The Act identifies such a person as: a person who receives a fee or other income for services performed in connection with any determination with respect to benefits under this title (including a claimant representative, translator, or current or former employee of the Social Security Administration), or who is a physician or other health care provider who submits, or causes the submission of, medical or other evidence in connection with any such determination . . . . The Commission seeks comment on how, if at all, the guidelines should be amended to address cases in which the offense of conviction is 42 U.S.C. 408, 1011, or 1383a, and the statutory maximum term of ten years’ imprisonment applies because the defendant was a person described in 42 U.S.C. 408(a), 1011(a), or 1383a(a). Are these cases adequately addressed by existing provisions in the guidelines, such as the adjustment in § 3B1.3 (Abuse of Position of Trust or Use of Special Skill)? If so, as an alternative to the proposed amendment, should the Commission amend § 2B1.1 only to provide an application note that expressly provides that, for a defendant subject to the ten years’ statutory maximum in such cases, an adjustment under § 3B1.3 ordinarily would apply? If not, how should the Commission amend the guidelines to address these cases? 2. The proposed amendment would amend § 2B1.1 to provide an enhancement and a minimum offense level for cases in which the defendant was convicted under 42 U.S.C. 408(a), 1011(a), or 1383a(a) and the statutory maximum term of ten years’ imprisonment applies because the defendant was a person described in 42 U.S.C. 408(a), 1011(a), or 1383a(a). However, there may be cases in which a defendant, who meets the criteria set forth for the new statutory maximum term of ten years’ imprisonment, is convicted under a general fraud statute PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 40653 (e.g., 18 U.S.C. 1341) for an offense involving conduct described in 42 U.S.C. 408(a), 1011(a), or 1383a(a). The Commission seeks comment on whether the Commission should instead amend § 2B1.1 to provide a general specific offense characteristic for such cases. For example, should the Commission provide an enhancement for cases in which the offense involved conduct described in 42 U.S.C. 408(a), 1011(a), or 1383a(a) and the defendant is a person ‘‘who receives a fee or other income for services performed in connection with any determination with respect to benefits [covered by those statutory provisions] (including a claimant representative, translator, or current or former employee of the Social Security Administration), or who is a physician or other health care provider who submits, or causes the submission of, medical or other evidence in connection with any such determination’’? If so, how many levels would be appropriate for such an enhancement? How should such an enhancement interact with the existing enhancements at § 2B1.1 and the Chapter Three adjustment at § 3B1.3 (Abuse of Position of Trust or Use of Special Skill)? 2. Tribal Issues Synopsis of Proposed Amendment: This proposed amendment is the result of the Commission’s study of the May 2016 Report of the Commission’s Tribal Issues Advisory Group. See U.S. Sentencing Comm’n, ‘‘Notice of Final Priorities,’’ 82 FR 39949 (Aug. 22, 2017). See also Report of the Tribal Issues Advisory Group (May 16, 2016), at http://www.ussc.gov/research/researchpublications/report-tribal-issuesadvisory-group. In 2015, the Commission established the Tribal Issues Advisory Group (TIAG) as an ad hoc advisory group to the Commission. Among other things, the Commission tasked the TIAG with studying the following issues— (A) the operation of the federal sentencing guidelines as they relate to American Indian defendants and victims and to offenses committed in Indian Country, and any viable methods for revising the guidelines to (i) improve their operation or (ii) address particular concerns of tribal communities and courts; (B) whether there are disparities in the application of the federal sentencing guidelines to American Indian defendants, and, if so, how to address them; (C) the impact of the federal sentencing guidelines on offenses committed in Indian Country in E:\FR\FM\25AUN1.SGM 25AUN1 40654 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices sradovich on DSK3GMQ082PROD with NOTICES comparison with analogous offenses prosecuted in state courts and tribal courts; (D) the use of tribal court convictions in the computation of criminal history scores, risk assessment, and for other purposes; (E) how the federal sentencing guidelines should account for protection orders issued by tribal courts; and (F) any other issues relating to American Indian defendants and victims, or to offenses committed in Indian Country, that the TIAG considers appropriate. See Tribal Issues Advisory Group Charter § 1(b)(3). The Commission also directed the TIAG to present a final report with its findings and recommendations, including any recommendations that the TIAG considered appropriate on potential amendments to the guidelines and policy statements. See id. § 6(a). On May 16, 2016, the TIAG presented to the Commission its final report. Among the recommendations suggested in the Report, the TIAG recommends revisions to the Guidelines Manual relating to the use of tribal court convictions in the computation of criminal history points and how the guidelines should account for protection orders issued by tribal courts. The proposed amendment contains two parts (Parts A and B). The Commission is considering whether to promulgate one or both of these parts, as they are not mutually exclusive. (A) Tribal Court Convictions Pursuant to Chapter Four, Part A (Criminal History), sentences resulting from tribal court convictions are not counted for purposes of calculating criminal history points, but may be considered under § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)). See USSG § 4A1.2(i). The policy statement at § 4A1.3 allows for upward departures if reliable information indicates that the defendant’s criminal history category substantially underrepresents the seriousness of the defendant’s criminal history. Among the grounds for departure, the policy statement includes ‘‘[p]rior sentences not used in computing the criminal history category (e.g., sentences for foreign and tribal offenses).’’ USSG § 4A1.3(a)(2)(A). As noted in the TIAG’s report, in recent years there have been important changes in tribal criminal jurisdiction. In 2010, Congress enacted the Tribal Law and Order Act of 2010 (TLOA), Public Law 111–211, to address high rates of violent crime in Indian Country by improving criminal justice funding VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 and infrastructure in tribal government, and expanding the sentencing authority of tribal court systems. In 2013, the Violence Against Women Reauthorization Act of 2013 (VAWA Reauthorization), Public Law 113–4, was enacted to expand the criminal jurisdiction of tribes to prosecute, sentence, and convict Indians and nonIndians who assault Indian spouses or dating partners or violate a protection order in Indian Country. It also established new assault offenses and enhanced existing assault offenses. Both statutes increased criminal jurisdiction for tribal courts, but also required more robust court procedures and provided more procedural protections for defendants. The TIAG notes in its report that ‘‘[w]hile some tribes have exercised expanded jurisdiction under TLOA and the VAWA Reauthorization, most have not done so. Given the lack of tribal resources, and the absence of significant additional funding under TLOA and the VAWA Reauthorization to date, it is not certain that more tribes will be able to do so any time soon.’’ TIAG Report, at 10–11. Members of the TIAG describe their experience with tribal courts as ‘‘widely varied,’’ expressing among their findings certain concerns about funding, perceptions of judicial bias or political influence, due process protections, and access to tribal court records. Id. at 11– 12. The TIAG report highlights that ‘‘[t]ribal courts occupy a unique and valuable place in the criminal justice system,’’ while also recognizing that ‘‘[t]ribal courts range in style.’’ Id. at 13. According to the TIAG, the differences in style and the concerns expressed above ‘‘make it often difficult for a federal court to determine how to weigh tribal court convictions in rendering a sentencing decision.’’ Id. at 11. It also asserts that ‘‘taking a single approach to the consideration of tribal court convictions would be very difficult and could potentially lead to a disparate result among Indian defendants in federal courts.’’ Id. at 12. Thus, the TIAG concludes that tribal convictions should not be counted for purposes of determining criminal history points pursuant to Chapter Four, Part A, and that ‘‘the current use of USSG § 4A1.3 to depart upward in individual cases continues to allow the best formulation of ‘sufficient but not greater than necessary’ sentences for defendants, while not increasing sentencing disparities or introducing due process concerns.’’ Id. Nevertheless, the TIAG recommends that the Commission amend § 4A1.3 to provide guidance and a more structured analytical framework PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 for courts to consider when determining whether a departure is appropriate based on a defendant’s record of tribal court convictions. The guidance recommended by the TIAG ‘‘collectively . . . reflect[s] important considerations for courts to balance the rights of defendants, the unique and important status of tribal courts, the need to avoid disparate sentences in light of disparate tribal court practices and circumstances, and the goal of accurately assessing the severity of any individual defendant’s criminal history.’’ Id. at 13. The proposed amendment would amend the Commentary to § 4A1.3 to set forth a non-exhaustive list of factors for the court to consider in determining whether, and to what extent, an upward departure based on a tribal court conviction is appropriate. Issues for comment are also provided. (B) Court Protection Orders Under the Guidelines Manual, the violation of a court protection order is a specific offense characteristic in three Chapter Two offense guidelines. See USSG §§ 2A2.2 (Aggravated Assault), 2A6.1 (Threatening or Harassing Communications; Hoaxes; False Liens), and 2A6.2 (Stalking or Domestic Violence). The Commission has heard concerns that the term ‘‘court protection order’’ has not been defined in the guidelines and should be clarified. The TIAG notes in its report the importance of defining ‘‘court protection order’’ in the guidelines, because— [a] clear definition of that term will ensure that orders used for sentencing enhancements are the result of court proceedings assuring appropriate due process protections, that there is consistent identification and treatment of such orders, and that such orders issued by tribal courts receive treatment consistent with that of other issuing jurisdictions. TIAG Report, at 14. The TIAG recommends that the Commission adopt a definition of ‘‘court protection order’’ that incorporates the statutory provisions at 18 U.S.C. 2265 and 2266. Section 2266(5) provides that the term ‘‘protection order’’ includes: (A) any injunction, restraining order, or any other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or communication with or physical proximity to, another person, including any temporary or final order issued by a civil or criminal court whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection; and E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices (B) any support, child custody or visitation provisions, orders, remedies or relief issued as part of a protection order, restraining order, or injunction pursuant to State, tribal, territorial, or local law authorizing the issuance of protection orders, restraining orders, or injunctions for the protection of victims of domestic violence, sexual assault, dating violence, or stalking. 18 U.S.C. 2266(5). Section 2265(b) provides that A protection order issued by a State, tribal, or territorial court is consistent with this subsection if— (1) such court has jurisdiction over the parties and matter under the law of such State, Indian tribe, or territory; and (2) reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person’s right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State, tribal, or territorial law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent’s due process rights. 18 U.S.C. 2265(b). The proposed amendment would amend the Commentary to § 1B1.1 (Application Instructions) to provide a definition of court protection order derived from 18 U.S.C. 2266(5), with a provision that it must be consistent with 18 U.S.C. 2265(b). An issue for comment is also provided. (A) Tribal Court Convictions sradovich on DSK3GMQ082PROD with NOTICES Proposed Amendment Section 4A1.3(a)(2) is amended by striking ‘‘subsection (a)’’ and inserting ‘‘subsection (a)(1)’’; and by striking ‘‘tribal offenses’’ and inserting ‘‘tribal convictions’’. The Commentary to § 4A1.3 captioned ‘‘Application Notes’’ is amended in Note 2 by inserting at the end the following new paragraph (C): ‘‘(C) Upward Departures Based on Tribal Court Convictions.—In determining whether, or to what extent, an upward departure based on a tribal court conviction is appropriate, the court shall consider the factors set forth in § 4A1.3(a) above and, in addition, may consider relevant factors such as the following: (i) The defendant was represented by a lawyer, had the right to a trial by jury, and received other due process protections consistent with those provided to criminal defendants under the United States Constitution. (ii) The tribe was exercising expanded jurisdiction under the Tribal Law and Order Act of 2010, Public Law 111–211 (July 29, 2010), and the Violence Against Women Reauthorization Act of VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 2013, Public Law 113–4 (March 7, 2013). (iii) The tribal court conviction is not based on the same conduct that formed the basis for a conviction from another jurisdiction that receives criminal history points pursuant to this Chapter. (iv) The conviction is for an offense that otherwise would be counted under § 4A1.2 (Definitions and Instructions for Computing Criminal History). [(v) At the time the defendant was sentenced, the tribal government had formally expressed a desire that convictions from its courts should be counted for purposes of computing criminal history pursuant to the Guidelines Manual.]’’. Issues for Comment 1. Part A of the proposed amendment would provide a list of relevant factors that courts may consider, in addition to the factors set forth in § 4A1.3(a), in determining whether an upward departure based on a tribal court conviction may be warranted. The Commission seeks comment on whether the factors provided in the proposed amendment are appropriate. Should any factors be deleted or changed? Should the Commission provide additional or different guidance? If so, what guidance should the Commission provide? In particular, the Commission seeks comment on how these factors should interact with each other and with the factors already contained in § 4A1.3(a). Should the Commission provide greater emphasis on one or more factors set forth in the proposed amendment? For example, how much weight should be given to factors that address due process concerns (subdivisions (i) and (ii)) in relation to the other factors provided in the proposed amendment, such as those factors relevant to preventing unwarranted double counting (subdivisions (iii) and (iv))? Should the Commission provide that in order to consider whether an upward departure based on a tribal court conviction is appropriate, and before taking into account any other factor, the court must first determine as a threshold factor that the defendant received due process protections consistent with those provided to criminal defendants under the United States Constitution? Finally, Part A of the proposed amendment brackets the possibility of including as a factor that courts may consider in deciding whether to depart based on a tribal court conviction if, ‘‘at the time the defendant was sentenced, the tribal government had formally expressed a desire that convictions from its courts should be counted for purposes of computing criminal history PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 40655 pursuant to the Guidelines Manual.’’ The Commission invites broad comment on this factor and its interaction with the other factors set forth in the proposed amendment. Is this factor relevant to the court’s determination of whether to depart? What are the advantages and disadvantages of including such a factor? How much weight should be given to this factor in relation to the other factors provided in the proposed amendment? What criteria should be used in determining when a tribal government has ‘‘formally expressed a desire’’ that convictions from its courts should count? How would tribal governments notify and make available such statements? 2. Pursuant to subsection (i) of § 4A1.2 (Definitions and Instructions for Computing Criminal History), sentences resulting from tribal court convictions are not counted for purposes of calculating criminal history points, but may be considered under § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)). As stated above, the policy statement at § 4A1.3 allows for upward departures if reliable information indicates that the defendant’s criminal history category substantially underrepresents the seriousness of the defendant’s criminal history. The Commission invites comment on whether the Commission should consider changing how the guidelines account for sentences resulting from tribal court convictions for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History). Should the Commission consider amending § 4A1.2(i) and, if so, how? For example, should the guidelines treat sentences resulting from tribal court convictions same as other sentences imposed for federal, state, and local offenses that may be used to compute criminal history points? Should the guidelines treat sentences resulting from tribal court convictions more akin to military sentences and distinguish between certain types of tribal courts? Is there a different approach the Commission should follow in addressing the use of tribal court convictions in the computation of criminal history scores? (B) Court Protection Orders Proposed Amendment The Commentary to § 1B1.1 captioned ‘‘Application Notes’’ is amended in Note 1 by redesignating paragraphs (D) through (L) as paragraphs (E) through (M), respectively; and by inserting the following new paragraph (D): E:\FR\FM\25AUN1.SGM 25AUN1 40656 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices ‘‘(D) ‘court protection order’ means ‘protection order’ as defined by 18 U.S.C. 2266(5) and consistent with 18 U.S.C. 2265(b).’’. Issue for Comment 1. Part B of the proposed amendment would include in the Commentary to § 1B1.1 (Application Instructions) a definition of court protection order derived from 18 U.S.C. 2266(5) and consistent with 18 U.S.C. 2265(b). Is this definition appropriate? If not, what definition, if any, should the Commission provide? sradovich on DSK3GMQ082PROD with NOTICES 3. First Offenders/Alternatives to Incarceration Synopsis of Proposed Amendment: The 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. (A) First Offenders Part A of the proposed amendment is primarily informed by the Commission’s multi-year study of recidivism, including the circumstances that correlate with increased or reduced recidivism. See U.S. Sentencing Comm’n, ‘‘Notice of Final Priorities,’’ 82 FR 39949 (Aug. 22, 2017). It is also informed by the Commission’s continued study of alternatives to incarceration. Id. Under the Guidelines Manual, offenders with minimal or no criminal history are classified into Criminal History Category I. ‘‘First offenders,’’ offenders with no criminal history, are addressed in the guidelines only by reference to Criminal History Category I. However, Criminal History Category I includes not only ‘‘first’’ offenders but also offenders with varying criminal histories, such as offenders with no criminal history points and those with one criminal history point. Accordingly, the following offenders are classified in the same category: (1) first time offenders with no prior convictions; (2) offenders who have prior convictions that are not counted because they were not within the time limits set forth in § 4A1.2(d) and (e); (3) offenders who have prior convictions that are not used in computing the criminal history category for reasons other than their ‘‘staleness’’ (e.g., sentences resulting from foreign or tribal court convictions, minor misdemeanor convictions or infractions); and (4) offenders with a prior conviction that received only one criminal history point. Part A sets forth a new Chapter Four guideline, at § 4C1.1 (First Offenders), that would provide lower guideline VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 ranges for ‘‘first offenders’’ generally and increase the availability of alternatives to incarceration for such offenders at the lower levels of the Sentencing Table (compared to otherwise similar offenders in Criminal History Category I). Recidivism data analyzed by the Commission indicate that ‘‘first offenders’’ generally pose the lowest risk of recidivism. See, e.g., U.S. Sentencing Comm’n, ‘‘Recidivism Among Federal Offenders: A Comprehensive Overview,’’ at 18 (2016), available at http://www.ussc.gov/ research/research-publications/ recidivism-among-federal-offenderscomprehensive-overview. In addition, 28 U.S.C. 994(j) directs that alternatives to incarceration are generally appropriate for first offenders not convicted of a violent or otherwise serious offense. The new Chapter Four guideline, in conjunction with the revision to § 5C1.1 (Imposition of a Term of Imprisonment) described below, would further implement the congressional directive at section 994(j). Part A of the proposed amendment provides two options for defining a ‘‘first offender’’ who would be eligible for a decrease in offense level under the new guideline. Option 1 defines a defendant as a ‘‘first offender’’ if the defendant did not receive any criminal history points from Chapter Four, Part A. Option 2 defines a defendant as a ‘‘first offender’’ if the defendant has no prior convictions of any kind. Part A also provides two options for the decrease in offense level that would apply to a first offender. Option 1 provides a decrease of [1] level from the offense level determined under Chapters Two and Three. Option 2 provides a decrease of [2] levels if the final offense level determined under Chapters Two and Three is less than level [16], or a decrease of [1] level if the offense level determined under Chapters Two and Three is level [16] or greater. Part A also amends § 5C1.1 (Imposition of a Term of Imprisonment) to add a new subsection (g) that provides that if (1) the defendant is determined to be a first offender under § 4C1.1 (First Offender), (2) [the instant offense of conviction is not a crime of violence][the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense], and (3) the guideline range applicable to that defendant is in Zone A or Zone B of the Sentencing Table, the court ordinarily should impose a sentence other than a sentence of imprisonment in accordance with the other sentencing options. PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 Finally, Part A of the proposed amendment also provides issues for comment. (B) Consolidation of Zones B and C in the Sentencing Table Part B of the proposed amendment is a result of the Commission’s continued study of alternatives to incarceration. See U.S. Sentencing Comm’n, ‘‘Notice of Final Priorities,’’ 82 FR 39949 (Aug. 22, 2017). The Guidelines Manual defines and allocates sentencing options in Chapter Five (Determining the Sentence). This chapter sets forth ‘‘zones’’ in the Sentencing Table based on the minimum months of imprisonment in each cell. The Sentencing Table sorts all sentencing ranges into four zones, labeled A through D. Each zone allows for different sentencing options, as follows: Zone A.—All sentence ranges within Zone A, regardless of the underlying offense level or criminal history category, are zero to six months. A sentencing court has the discretion to impose a sentence that is a fine-only, probation-only, probation with a confinement condition (home detention, community confinement, or intermittent confinement), a split sentence (term of imprisonment with term of supervised release with condition of confinement), or imprisonment. Zone A allows for probation without any conditions of confinement. Zone B.—Sentence ranges in Zone B are from one to 15 months of imprisonment. Zone B allows for a probation term to be substituted for imprisonment, contingent upon the probation term including conditions of confinement. Zone B allows for nonprison sentences, which technically result in sentencing ranges larger than six months, because the minimum term of imprisonment is one month and the maximum terms begin at seven months. To avoid sentencing ranges exceeding six months, the guidelines require that probationary sentences in Zone B include conditions of confinement. Zone B also allows for a term of imprisonment (of at least one month) followed by a term of supervised release with a condition of confinement (i.e., a ‘‘split sentence’’) or a term of imprisonment only. Zone C.—Sentences in Zone C range from 10 to 18 months of imprisonment. Zone C allows for split sentences, which must include a term of imprisonment equivalent to at least half of the minimum of the applicable guideline range. The remaining half of the term requires supervised release with a condition of community confinement or E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices home detention. Alternatively, the court has the option of imposing a term of imprisonment only. Zone D.—The final zone, Zone D, allows for imprisonment only, ranging from 15 months to life. Part B of the proposed amendment expands Zone B by consolidating Zones B and C. The expanded Zone B would include sentence ranges from one to 18 months and allow for the sentencing options described above. Although the proposed amendment would in fact delete Zone C by its consolidation with Zone B, Zone D would not be redesignated. Finally, Part B makes conforming changes to §§ 5B1.1 (Imposition of a Term of Probation) and 5C1.1 (Imposition of a Term of Imprisonment). Part B also amends the Commentary to § 5F1.2 (Home Detention) to remove the language instructing that (1) electronic monitoring ‘‘ordinarily should be used in connection with’’ home detention; (2) alternative means of surveillance may be used ‘‘so long as they are effective as electronic monitoring;’’ and (3) ‘‘surveillance necessary for effective use of home detention ordinarily requires’’ electronic monitoring. Issues for comment are also provided. Commentary Application Note: (b) If the defendant is determined to be a first offender under subsection (a), decrease the offense level determined under Chapters Two and Three by [1] level.] 1. Cases Involving Mandatory Minimum Penalties.—If the case involves a statutorily required minimum sentence of at least five years and the defendant meets the criteria set forth in subsection (a) of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), the offense level determined under this section shall be not less than level 17. See § 5C1.2(b).’’. Section 5C1.1 is amended by inserting at the end the following new subsection (g): ‘‘(g) In cases in which (1) the defendant is determined to be a first offender under § 4C1.1 (First Offender), (2) [the instant offense of conviction is not a crime of violence][the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense], and (3) the guideline range applicable to that defendant is in Zone A or B of the Sentencing Table, the court ordinarily should impose a sentence other than a sentence of imprisonment in accordance with the other sentencing options set forth in this guideline.’’. The Commentary to § 5C1.1 captioned ‘‘Application Notes’’ is amended by inserting at the end the following new Note 10: ‘‘10. Application of Subsection (g).— (A) Sentence of Probation Prohibited.—The court may not impose a sentence of probation pursuant to this provision if prohibited by statute. See § 5B1.1 (Imposition of a Term of Probation). [(B) Definition of ‘Crime of Violence’.—For purposes of subsection (g), ‘crime of violence’ has the meaning given that term in § 4B1.2 (Definitions of Terms Used in Section 4B1.1). (C) Sentence of Imprisonment for First Offenders.—A sentence of imprisonment may be appropriate in cases in which the defendant used violence or credible threats of violence or possessed a firearm or other dangerous weapon in connection with the offense].’’. [Option 2: Issues for Comment (b) If the defendant is determined to be a first offender under subsection (a), decrease the offense level as follows: 1. Part A of the proposed amendment provides two options for how to define ‘‘first offender’’ for purposes of applying (A) First Offenders Proposed Amendment Chapter Four is amended by inserting at the end the following new Part C: PART C—FIRST OFFENDER § 4C1.1. First Offender [Definition of ‘‘First Offender’’ [Option 1: (a) A defendant is a first offender if the defendant did not receive any criminal history points from Chapter Four, Part A.] [Option 2: (a) A defendant is a first offender if the defendant has no prior convictions of any kind.]] [Decrease in Offense Level for First Offenders [Option 1: sradovich on DSK3GMQ082PROD with NOTICES (1) if the offense level determined under Chapters Two and Three is less than level [16], decrease by [2] levels; or (2) if the offense level determined under Chapters Two and Three is level [16] or greater, decrease by [1] level.]] VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 40657 the new § 4C1.1 (First Offender). Option 1 defines a defendant as a ‘‘first offender’’ if the defendant did not receive any criminal history points from Chapter Four, Part A. Option 2 defines a defendant as a ‘‘first offender’’ if the defendant has no prior convictions of any kind. The Commission seeks comment on the proposed definition. Should the Commission adopt a broader definition than either Option 1 or Option 2? Should the Commission adopt a narrower definition than either option? Should the Commission adopt a definition that is narrower than Option 1 but broader than Option 2? For example, should the Commission define ‘‘first offender’’ as a defendant who did not receive any criminal history points from Chapter Four, Part A and has no prior felony convictions? Should the Commission instead define ‘‘first offender’’ as a defendant who either has no prior convictions of any kind or has only prior convictions that are not counted under § 4A1.2 for a reason other than being too remote in time? Should the Commission provide additional or different guidance for determining whether a defendant is, or is not, a first offender? 2. Part A of the proposed amendment provides two options for the decrease in offense level that would apply to a first offender. One of the options, Option 1, would provide that if the defendant is determined to be a first offender (as defined in the new guideline) a decrease of [1] level from the offense level determined under Chapters Two and Three would apply. Should the Commission limit the applicability of the adjustment to defendants with an offense level determined under Chapters Two and Three that is less than a certain number of levels? For example, should the Commission provide that if the offense level determined under Chapters Two and Three is less than level [16], the offense level shall be decreased by [1] level? What other limitations or requirements, if any, should the Commission provide for such an adjustment? 3. Part A of the proposed amendment would amend § 5C1.1 (Imposition of a Term of Imprisonment) to provide that if the defendant is determined to be a first offender under the new § 4C1.1 (First Offender), [the defendant’s instant offense of conviction is not a crime of violence][the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense], and the guideline range applicable to that defendant is in Zone A or Zone B of the Sentencing Table, the court ordinarily should impose a sentence E:\FR\FM\25AUN1.SGM 25AUN1 40658 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices other than a sentence of imprisonment in accordance with the other sentencing options. Should the Commission further limit the application of such a rebuttable ‘‘presumption’’ and exclude certain categories of non-violent offenses? If so, what offenses should be excluded from the presumption of a non-incarceration sentence? For example, should the Commission exclude public corruption, tax, and other white-collar offenses? 4. If the Commission were to promulgate Part A of the proposed amendment, what conforming changes, if any, should the Commission make to other provisions of the Guidelines Manual? (B) Consolidation of Zones B and C in the Sentencing Table sradovich on DSK3GMQ082PROD with NOTICES Proposed Amendment Chapter Five, Part A is amended in the Sentencing Table by striking ‘‘Zone C’’; by redesignating Zone B to contain all guideline ranges having a minimum of at least one month but not more than twelve months; and by inserting below ‘‘Zone B’’ the following: ‘‘[Zone C Deleted]’’. The Commentary to the Sentencing Table is amended by inserting at the end the following: ‘‘Background: The Sentencing Table previously provided four ‘zones,’ labeled A through D, based on the minimum months of imprisonment in each cell. The Commission expanded Zone B by consolidating former Zones B and C. Zone B in the Sentencing Table now contains all guideline ranges having a minimum term of imprisonment of at least one but not more than twelve months. Although Zone C was deleted by its consolidation with Zone B, the Commission decided not to redesignate Zone D as Zone C, to avoid unnecessary confusion that may result from different meanings of ‘Zone C’ and ‘Zone D’ through different editions of the Guidelines Manual.’’. The Commentary to § 5B1.1 captioned ‘‘Application Notes’’ is amended in Note 1(B), in the heading, by striking ‘‘nine months’’ and inserting ‘‘twelve months’’; and in Note 2 by striking ‘‘Zone C or D’’ and inserting ‘‘Zone D’’, and by striking ‘‘ten months’’ and inserting ‘‘fifteen months’’. Section 5C1.1 is amended— in subsection (c) by striking ‘‘subsection (e)’’ both places such term appears and inserting ‘‘subsection (d)’’; by striking subsection (d) as follows: ‘‘(d) If the applicable guideline range is in Zone C of the Sentencing Table, the minimum term may be satisfied by— (1) a sentence of imprisonment; or VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 (2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in subsection (e), provided that at least one-half of the minimum term is satisfied by imprisonment.’’; and by redesignating subsections (e) and (f) as subsections (d) and (e), respectively. The Commentary to § 5C1.1 captioned ‘‘Application Notes’’ is amended— in Note 3 by striking ‘‘nine months’’ and inserting ‘‘twelve months’’; by striking Note 4 as follows: ‘‘4. Subsection (d) provides that where the applicable guideline range is in Zone C of the Sentencing Table (i.e., the minimum term specified in the applicable guideline range is ten or twelve months), the court has two options: (A) It may impose a sentence of imprisonment. (B) Or, it may impose a sentence of imprisonment that includes a term of supervised release with a condition requiring community confinement or home detention. In such case, at least one-half of the minimum term specified in the guideline range must be satisfied by imprisonment, and the remainder of the minimum term specified in the guideline range must be satisfied by community confinement or home detention. For example, where the guideline range is 10–16 months, a sentence of five months imprisonment followed by a term of supervised release with a condition requiring five months community confinement or home detention would satisfy the minimum term of imprisonment required by the guideline range. The preceding example illustrates a sentence that satisfies the minimum term of imprisonment required by the guideline range. The court, of course, may impose a sentence at a higher point within the guideline range. For example, where the guideline range is 10–16 months, both a sentence of five months imprisonment followed by a term of supervised release with a condition requiring six months of community confinement or home detention (under subsection (d)), and a sentence of ten months imprisonment followed by a term of supervised release with a condition requiring four months of community confinement or home detention (also under subsection (d)) would be within the guideline range.’’; by striking Note 6 as follows: ‘‘6. There may be cases in which a departure from the sentencing options authorized for Zone C of the Sentencing Table (under which at least half the PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 minimum term must be satisfied by imprisonment) to the sentencing options authorized for Zone B of the Sentencing Table (under which all or most of the minimum term may be satisfied by intermittent confinement, community confinement, or home detention instead of imprisonment) is appropriate to accomplish a specific treatment purpose. Such a departure should be considered only in cases where the court finds that (A) the defendant is an abuser of narcotics, other controlled substances, or alcohol, or suffers from a significant mental illness, and (B) the defendant’s criminality is related to the treatment problem to be addressed. In determining whether such a departure is appropriate, the court should consider, among other things, (1) the likelihood that completion of the treatment program will successfully address the treatment problem, thereby reducing the risk to the public from further crimes of the defendant, and (2) whether imposition of less imprisonment than required by Zone C will increase the risk to the public from further crimes of the defendant. Examples: The following examples both assume the applicable guideline range is 12–18 months and the court departs in accordance with this application note. Under Zone C rules, the defendant must be sentenced to at least six months imprisonment. (1) The defendant is a nonviolent drug offender in Criminal History Category I and probation is not prohibited by statute. The court departs downward to impose a sentence of probation, with twelve months of intermittent confinement, community confinement, or home detention and participation in a substance abuse treatment program as conditions of probation. (2) The defendant is convicted of a Class A or B felony, so probation is prohibited by statute (see § 5B1.1(b)). The court departs downward to impose a sentence of one month imprisonment, with eleven months in community confinement or home detention and participation in a substance abuse treatment program as conditions of supervised release.’’; by redesignating Notes 5, 7, 8, and 9 as Notes 4, 5, 6, and 7, respectively; in Note 4 (as so redesignated) by striking ‘‘Subsection (e)’’ and inserting ‘‘Subsection (d)’’; in Note 5 (as so redesignated) by striking ‘‘subsections (c) and (d)’’ and inserting ‘‘subsection (c)’’; and in Note 7 (as so redesignated) by striking ‘‘Subsection (f)’’ and inserting ‘‘Subsection (e)’’, and by striking ‘‘subsection (e)’’ and inserting ‘‘subsection (d)’’. E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices sradovich on DSK3GMQ082PROD with NOTICES The Commentary to § 5F1.2 captioned ‘‘Application Notes’’ is amended in Note 1 by striking ‘‘Electronic monitoring is an appropriate means of surveillance and ordinarily should be used in connection with home detention’’ and inserting ‘‘Electronic monitoring is an appropriate means of surveillance for home detention’’; and by striking ‘‘may be used so long as they are as effective as electronic monitoring’’ and inserting ‘‘may be used if appropriate’’. The Commentary to § 5F1.2 captioned ‘‘Background’’ is amended by striking ‘‘The Commission has concluded that the surveillance necessary for effective use of home detention ordinarily requires electronic monitoring’’ and inserting ‘‘The Commission has concluded that electronic monitoring is an appropriate means of surveillance for home detention’’; and by striking ‘‘the court should be confident that an alternative form of surveillance will be equally effective’’ and inserting ‘‘the court should be confident that an alternative form of surveillance is appropriate considering the facts and circumstances of the defendant’s case’’. Issues for Comment 1. The Commission requests comment on whether the zone changes contemplated by Part B of the proposed amendment should apply to all offenses, or only to certain categories of offenses. The zone changes would increase the number of offenders who are eligible under the guidelines to receive a nonincarceration sentence. Should the Commission provide a mechanism to exempt certain offenses from these zone changes? For example, should the Commission provide a mechanism to exempt public corruption, tax, and other white-collar offenses from these zone changes (e.g., to reflect a view that it would not be appropriate to increase the number of public corruption, tax, and other white-collar offenders who are eligible to receive a non-incarceration sentence)? If so, what mechanism should the Commission provide, and what offenses should be covered by it? 2. The proposed amendment would consolidate Zones B and C to create an expanded Zone B. Such an adjustment would provide probation with conditions of confinement as a sentencing option for current Zone C defendants, an option that was not available to such defendants before. The Commission seeks comment on whether the Commission should provide additional guidance to address these new Zone B defendants. If so, what guidance should the Commission provide? VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 4. Acceptance of Responsibility Synopsis of Proposed Amendment: This proposed amendment is the result of the Commission’s consideration of miscellaneous guideline application issues, including whether a defendant’s denial of relevant conduct should be considered in determining whether the defendant has accepted responsibility for purposes of § 3E1.1. See U.S. Sentencing Comm’n, ‘‘Notice of Final Priorities,’’ 82 FR 39949 (Aug. 22, 2017). Section 3E1.1 (Acceptance of Responsibility) provides for a 2-level reduction for a defendant who clearly demonstrates acceptance of responsibility. Application Note 1(A) of § 3E1.1 provides as one of the appropriate considerations in determining whether a defendant ‘‘clearly demonstrate[d] acceptance of responsibility’’ the following: truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a). A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility; In addition, Application Note 3 provides further guidance on evidence that might demonstrate acceptance of responsibility, as follows: Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under § 1B1.3 (Relevant Conduct) (see Application Note 1(A)), will constitute significant evidence of acceptance of responsibility for the purposes of subsection (a). However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right. The Commission has heard concerns that the Commentary to § 3E1.1 (particularly the provisions cited above) encourages courts to deny a reduction in sentence when a defendant pleads guilty and accepts responsibility for the offense of conviction, but unsuccessfully challenges the presentence report’s assessments of relevant conduct. These commenters PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 40659 suggest this has a chilling effect because defendants are concerned such objections may jeopardize their eligibility for a reduction for acceptance of responsibility. The proposed amendment amends the Commentary to § 3E1.1 to revise how a defendant’s challenge to relevant conduct should be considered in determining whether the defendant has accepted responsibility for purposes of the guideline. Specifically, the proposed amendment would revise Application Note 1(A) by substituting a new sentence for the sentence that states ‘‘a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.’’ The proposed amendment includes two options for the substitute. Option 1 would provide that ‘‘a defendant may make a non-frivolous challenge to relevant conduct without affecting his ability to obtain a reduction.’’ Option 2 would provide that ‘‘a defendant may make a challenge to relevant conduct without affecting his ability to obtain a reduction, unless the challenge lacks an arguable basis either in law or in fact.’’ An issue for comment is also provided. Proposed Amendment The Commentary to § 3E1.1 captioned ‘‘Application Notes’’ is amended in Note 1(A) by striking ‘‘However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility’’, and inserting the following: [Option 1: ‘‘In addition, a defendant may make a non-frivolous challenge to relevant conduct without affecting his ability to obtain a reduction’’.] [Option 2: ‘‘In addition, a defendant may make a challenge to relevant conduct without affecting his ability to obtain a reduction, unless the challenge lacks an arguable basis either in law or in fact’’.] Issue for Comment 1. The Commission seeks comment on whether the Commission should amend the Commentary to § 3E1.1 (Acceptance of Responsibility) to change or clarify how a defendant’s challenge to relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of E:\FR\FM\25AUN1.SGM 25AUN1 40660 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices sradovich on DSK3GMQ082PROD with NOTICES § 3E1.1. If so, what changes should the Commission make to § 3E1.1? One of the options included in the proposed amendment, Option 1, would provide that ‘‘a defendant may make a non-frivolous challenge to relevant conduct without affecting his ability to obtain a reduction’’ under § 3E1.1(a). If the Commission were to adopt Option 1, what additional guidance, if any, should the Commission provide on the meaning of ‘‘non-frivolous’’? The second option included in the proposed amendment, Option 2, would provide that ‘‘a defendant may make a challenge to relevant conduct without affecting his ability to obtain a reduction, unless the challenge lacks an arguable basis either in law or in fact.’’ If the Commission were to adopt Option 2, should the Commission provide additional guidance on when a challenge ‘‘lacks an arguable basis either in law or in fact’’? For example, should the Commission state explicitly that the fact that a challenge is unsuccessful does not by itself establish that the challenge lacked an arguable basis either in law or in fact? If the Commission were to adopt either Option 1 or Option 2, should the challenges covered by the amendment include informal challenges to relevant conduct during the sentencing process, whether or not the issues challenged are determinative to the applicable guideline range? Should the Commission broaden the proposed provision to address other sentencing considerations, such as departures or variances? Should the Commission, instead of adopting either option in the proposed amendment, remove from § 3E1.1 all references to relevant conduct for which the defendant is accountable under § 1B1.3, and reference only the elements of the offense of conviction? 5. Miscellaneous Synopsis of Proposed Amendment: This proposed amendment responds to recently enacted legislation and miscellaneous guideline issues. The proposed amendment contains five parts (Parts A through E). The Commission is considering whether to promulgate any or all of these parts, as they are not mutually exclusive. They are as follows— Part A responds to the Transnational Drug Trafficking Act of 2015, Public Law 114–154 (May 16, 2016), by amending § 2B5.3 (Criminal Infringement of Copyright or Trademark). Part B responds to the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 Traveling Sex Offenders Act, Public Law 114–119 (Feb. 8, 2016), by amending § 2A3.5 (Failure to Register as a Sex Offender), § 2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender), and Appendix A (Statutory Index). Part C responds to the Frank R. Lautenberg Chemical Safety for the 21st Century Act, Public Law 114–182 (June 22, 2016), by amending Appendix A (Statutory Index). Part D amends § 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) to clarify how the use of a computer enhancement at subsection (b)(3) interacts with its correlating commentary. Part E responds to the Justice for All Reauthorization Act of 2016, Public Law 114–324 (Dec. 16, 2016), by amending § 5D1.3 (Conditions of Supervised Release). (A) Transnational Drug Trafficking Act of 2015 Synopsis of Proposed Amendment: Part A of the proposed amendment responds to the Transnational Drug Trafficking Act of 2015, Public Law 114–154 (May 16, 2016). The primary purpose of the Act is to enable the Department of Justice to target extraterritorial drug trafficking activity. Among other things, the Act clarified the mens rea requirement for offenses related to trafficking in counterfeit drugs, without changing the statutory penalties associated with such offenses. The Act amended 18 U.S.C. 2230 (Trafficking in Counterfeit Goods or Services), which prohibits trafficking in a range of goods and services, including counterfeit drugs. The amended statute is currently referenced in Appendix A (Statutory Index) of the Guidelines Manual to § 2B5.3 (Criminal Infringement of Copyright or Trademark). In particular, the Act made changes relating to counterfeit drugs. First, the Act amended the penalty provision at section 2320, replacing the term ‘‘counterfeit drug’’ with the phrase ‘‘drug that uses a counterfeit mark on or in connection with the drug.’’ Second, the Act revised section 2320(f)(6) to define only the term ‘‘drug’’ instead of ‘‘counterfeit drug.’’ The amended provision defines ‘‘drug’’ as ‘‘a drug, as defined in section 201 of the Federal PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 Food, Drug, and Cosmetic Act (21 U.S.C. 321).’’ The Act did not amend the definition of ‘‘counterfeit mark’’ contained in section 2230(f)(1), which provides that— the term ‘‘counterfeit mark’’ means— (A) a spurious mark— (i) that is used in connection with trafficking in any goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature; (ii) that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United States Patent and Trademark Office and in use, whether or not the defendant knew such mark was so registered; (iii) that is applied to or used in connection with the goods or services for which the mark is registered with the United States Patent and Trademark Office, or is applied to or consists of a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with the goods or services for which the mark is registered in the United States Patent and Trademark Office; and (iv) the use of which is likely to cause confusion, to cause mistake, or to deceive; or (B) a spurious designation that is identical with, or substantially indistinguishable from, a designation as to which the remedies of the Lanham Act are made available by reason of section 220506 of title 36 . . . . Part A of the proposed amendment amends § 2B5.3(b)(5) to replace the term ‘‘counterfeit drug’’ with ‘‘drug that uses a counterfeit mark on or in connection with the drug.’’ The proposed amendment would also amend the Commentary to § 2B5.3 to delete the ‘‘counterfeit drug’’ definition and provide that ‘‘drug’’ and ‘‘counterfeit mark’’ have the meaning given those terms in 18 U.S.C. 2320(f). Proposed Amendment Section 2B5.3(b)(5) is amended by striking ‘‘counterfeit drug’’ and inserting ‘‘drug that uses a counterfeit mark on or in connection with the drug’’. The Commentary to § 2B5.3 captioned ‘‘Application Notes’’ is amended in Note 1 by striking the third undesignated paragraph as follows: ‘‘ ‘Counterfeit drug’ has the meaning given that term in 18 U.S.C. 2320(f)(6).’’, and by inserting after the paragraph that begins ‘‘‘Counterfeit military good or service’ has the meaning’’ the following new paragraph: ‘‘ ‘Drug’ and ‘counterfeit mark’ have the meaning given those terms in 18 U.S.C. 2320(f).’’. E:\FR\FM\25AUN1.SGM 25AUN1 sradovich on DSK3GMQ082PROD with NOTICES Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices (B) International Megan’s Law To Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders Synopsis of Proposed Amendment: Part B of the proposed amendment responds to the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders Act (‘‘International Megan’s Law’’), Public Law 114–119 (Feb. 8, 2016). The Act added a new notification requirement to 42 U.S.C. 16914 (Information required in [sex offender] registration). Section 16914 states that sex offenders who are required to register under the Sex Offender Registration and Notification Act (SORNA) must provide certain information for inclusion in the sex offender registry. Those provisions include the offender’s name, Social Security number, address of all residences, name and address where the offender is an employee, the name and address where the offender is a student, license plate number and description of any vehicle. The International Megan’s Law added as an additional requirement that the sex offender must provide ‘‘information relating to intended travel of the sex offender outside of the United States, including any anticipated dates and places of departure, arrival or return, carrier and flight numbers for air travel, destination country and address or other contact information therein, means and purpose of travel, and any other itinerary or other travel-related information required by the Attorney General.’’ The International Megan’s Law also added a new criminal offense at 18 U.S.C. 2250(b) (Failure to register). The new subsection (b) provides that whoever is required to register under SORNA who knowingly fails to provide the above described information required by SORNA relating to intended travel in foreign commerce and who engages or attempts to engage in the intended travel, is subject to a 10-year statutory maximum penalty. Section 2250 offenses are referenced in Appendix A (Statutory Index) to § 2A3.5 (Failure to Register as a Sex Offender). Part B of the proposed amendment amends Appendix A (Statutory Index) so the new offenses at 18 U.S.C. 2250(b) are referenced to § 2A3.5. The proposed amendment also brackets the possibility of adding a new application note to the Commentary to § 2A3.5 providing that for purposes of § 2A3.5(b), a defendant shall be deemed to be in a ‘‘failure to register status’’ during the period in which the defendant engaged in VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 conduct described in 18 U.S.C. 2250(a) or (b). Finally, Part B makes clerical changes to § 2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender) to reflect the redesignation of 18 U.S.C. 2250(c) by the International Megan’s Law. Proposed Amendment The Commentary to § 2A3.5 captioned ‘‘Statutory Provision’’ is amended by striking ‘‘§ 2250(a)’’ and inserting ‘‘§ 2250(a), (b)’’. [The Commentary to § 2A3.5 captioned ‘‘Application Notes’’ is amended by redesignating Note 2 as Note 3, and by inserting the following new Note 2: ‘‘2. Application of Subsection (b)(1).— For purposes of subsection (b)(1), a defendant shall be deemed to be in a ‘failure to register status’ during the period in which the defendant engaged in conduct described in 18 U.S.C. 2250(a) or (b).’’.] Section 2A3.6(a) is amended by striking ‘‘§ 2250(c)’’ and inserting ‘‘§ 2250(d)’’. The Commentary to § 2A3.6 captioned ‘‘Statutory Provisions’’ is amended by striking ‘‘2250(c)’’ and inserting ‘‘2250(d)’’. The Commentary to § 2A3.6 captioned ‘‘Application Notes’’ is amended— in Note 1 by striking ‘‘Section 2250(c)’’ and inserting ‘‘Section 2250(d)’’, and by inserting after ‘‘18 U.S.C. 2250(a)’’ the following: ‘‘or (b)’’; in Note 3 by striking ‘‘§ 2250(c)’’ and inserting ‘‘§ 2250(d)’’; and in Note 4 by striking ‘‘§ 2250(c)’’ and inserting ‘‘§ 2250(d)’’. Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 2250(a) by striking ‘‘§ 2250(a)’’ and inserting ‘‘§ 2250(a), (b)’’; and in the line referenced to 18 U.S.C. 2250(c) by striking ‘‘§ 2250(c)’’ and inserting ‘‘§ 2250(d)’’. 40661 $250,000, imprisonment of up to 15 years, or both. Part C of the proposed amendment amends Appendix A (Statutory Index) so that the new provision, 15 U.S.C. 2615(b)(2), is referenced to § 2Q1.1 (Knowing Endangerment Resulting From Mishandling Hazardous or Toxic Substances, Pesticides or Other Pollutants), while maintaining the reference to § 2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce) for 15 U.S.C. 2615(b)(1). Proposed Amendment Appendix A (Statutory Index) is amended— in the line referenced to 15 U.S.C. 2615 by striking ‘‘§ 2615’’ and inserting ‘‘§ 2615(b)(1)’’; and by inserting before the line referenced to 15 U.S.C. 6821 the following new line reference: ‘‘15 U.S.C. 2615(b)(2) 2Q1.1’’. (D) Use of a Computer Enhancement in § 2G1.3 Synopsis of Proposed Amendment: Part D of the proposed amendment clarifies how the use of a computer enhancement at § 2G1.3(b)(3) interacts with its corresponding commentary at Application Note 4. Section 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) applies to several offenses involving the transportation of a minor for illegal sexual activity. Subsection (b)(3) of § 2G1.3 provides a 2-level enhancement (C) Frank R. Lautenberg Chemical Safety if— for the 21st Century Act the offense involved the use of a computer or an interactive computer service to (A) Synopsis of Proposed Amendment: persuade, induce, entice, coerce, or facilitate Part C of the proposed amendment the travel of, the minor to engage in responds to the Frank R. Lautenberg prohibited sexual conduct; or (B) entice, Chemical Safety for the 21st Century encourage, offer, or solicit a person to engage Act, Public Law 114–182 (June 22, in prohibited sexual conduct with the minor. 2016). The Act, among other things, Application Note 4 to § 2G1.3 sets amended section 16 of the Toxic forth guidance on this enhancement Substances Control Act (15 U.S.C. 2615) providing as follows: to add a new subsection that provides Subsection (b)(3) is intended to apply only that any person who knowingly and to the use of a computer or an interactive willfully violates certain provisions of computer service to communicate directly the Toxic Substances Control Act and with a minor or with a person who exercises who knows at the time of the violation custody, care, or supervisory control of the that the violation places an individual minor. Accordingly, the enhancement in in imminent danger of death or bodily subsection (b)(3) would not apply to the use injury shall be subject to a fine up to of a computer or an interactive computer PO 00000 Frm 00124 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 40662 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices sradovich on DSK3GMQ082PROD with NOTICES service to obtain airline tickets for the minor from an airline’s Internet site. such term appears and inserting ‘‘(b)(3)(A)’’. An application issue has arisen as to whether Application Note 4, by failing to distinguish between the two prongs of subsection (b)(3), prohibits application of the enhancement where a computer was used to solicit a third party to engage in prohibited sexual conduct with a minor. Most courts to have addressed this issue have concluded that Application Note 4 is inconsistent with the language of § 2G1.3(b)(3), and have permitted the application of the enhancement for use of a computer in third party solicitation cases. See, e.g., United States v. Cramer, 777 F.3d 597, 606 (2d Cir. 2015) (‘‘We conclude that Application Note 4 is plainly inconsistent with subsection (b)(3)(B) . . . . The plain language of subsection (b)(3)(B) is clear, and there is no indication that the drafters of the Guidelines intended to limit this plain language through Application Note 4.’’); United States v. McMillian, 777 F.3d 444, 449–50 (7th Cir. 2015) (‘‘[The defendant] points out that Application Note 4 states that ‘Subsection (b)(3) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor.[’] . . . . But the note is wrong. The guideline section provides a 2-level enhancement whenever the defendant uses a computer to ‘entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor’ . . . . When an application note clashes with the guideline, the guideline prevails.’’); United States v. Hill, 783 F.3d 842, 846 (11th Cir. 2015) (‘‘Because the application note is inconsistent with the plain language of U.S.S.G. § 2G1.3(b)(3)(B), the plain language of the guideline controls.’’); United States v. Pringler, 765 F.3d 445, 455 (5th Cir. 2014) (‘‘[W]e hold that the commentary in application note 4 is ‘inconsistent with’ Guideline § 2G1.3(b)(3)(B), and we therefore follow the plain language of the Guideline alone.’’). Part D of the proposed amendment would amend the Commentary to § 2G1.3 to clarify that the guidance contained in Application Note 4 refers only to subsection (b)(3)(A) and does not control the application of the enhancement for use of a computer in third party solicitation cases (as provided in subsection (b)(3)(B)). (E) Justice for All Reauthorization Act of 2016 Synopsis of Proposed Amendment: Part E of the proposed amendment responds to the Justice for All Reauthorization Act of 2016, Public Law 114–324 (Dec. 16, 2016). The Act made statutory changes to protect the rights of crime victims and to address the use of DNA and other forensic evidence. Among other things, the Act amended 18 U.S.C. 3583, the statute addressing supervised release. Section 3583(d) requires a court, when imposing a sentence of supervised release, to impose certain specified conditions of supervised release. The Act amended section 3583(d) to require the court to include, as one of those conditions, ‘‘that the defendant make restitution in accordance with sections 3663 and 3663A [of Title 18, United States Code], or any other statute authorizing a sentence of restitution.’’ Part E of the proposed amendment amends the ‘‘mandatory’’ condition of supervised release set forth in subsection (a)(6)(A) of § 5D1.3 (Conditions of Supervised Release). It conforms § 5D1.3(a)(6)(A) to section 3583(d) as amended by the Justice for All Reauthorization Act. Proposed Amendment The Commentary to § 2G1.3 captioned ‘‘Application Notes’’ is amended in Note 4 by striking ‘‘(b)(3)’’ each place VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 Proposed Amendment Section 5D1.3(a)(6)(A) is amended by striking ‘‘18 U.S.C. 2248, 2259, 2264, 2327, 3663, 3663A, and 3664’’ and inserting ‘‘18 U.S.C. 3663 and 3663A, or any other statute authorizing a sentence of restitution’’. 6. Marihuana Equivalency Synopsis of Proposed Amendment: This proposed amendment makes technical changes to § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to replace the term ‘‘marihuana equivalency’’ which is used in the Drug Equivalency Tables when determining penalties for certain controlled substances. The Commentary to § 2D1.1 sets forth a series of Drug Equivalency Tables. These tables provide a conversion factor termed ‘‘marihuana equivalency’’ for certain controlled substances that is used to determine the offense level for cases in which the controlled substance involved in the offense is not specifically listed in the Drug Quantity Table, or where there is more than one controlled substance involved in the offense (whether or not listed in the Drug Quantity Table). See § 2D1.1, PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 comment. (n.8). The Drug Equivalency Tables are separated by drug type and schedule. In a case involving a controlled substance that is not specifically referenced in the Drug Quantity Table, the base offense level is determined by using the Drug Equivalency Tables to convert the quantity of the controlled substance involved in the offense to its marihuana equivalency, then finding the offense level in the Drug Quantity Table that corresponds to that quantity of marihuana. In a case involving more than one controlled substance, each of the drugs is converted into its marihuana equivalency, the converted quantities are added, and the aggregate quantity is used to find the offense level in the Drug Quantity Table. The Commission received comment expressing concern that the term ‘‘marihuana equivalency’’ is misleading and results in confusion for individuals not fully versed in the guidelines. In particular, some commenters suggested that the Commission should replace ‘‘marihuana equivalency’’ with another term. The proposed amendment would amend § 2D1.1 to replace ‘‘marihuana equivalency’’ as the conversion factor for determining penalties for controlled substances that are not specifically referenced in the Drug Quantity Table or when combining differing controlled substances, with a new value termed ‘‘converted drug weight.’’ Specifically, the proposed amendment would add the new conversion factor to all provisions of the Drug Quantity Table at § 2D1.1(c). In addition, the proposed amendment would change the title of the ‘‘Drug Equivalency Tables’’ to ‘‘Drug Conversion Tables,’’ and revise the commentary to § 2D1.1 to change all references to marihuana as a conversion factor and replace it with the new value. All changes set forth in the proposed amendment are not intended as a substantive change in policy for § 2D1.1. Proposed Amendment Section 2D1.1(c)(1) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• 90,000 KG or more of Converted Drug Weight.’’. Section 2D1.1(c)(2) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 30,000 KG but less than 90,000 KG of Converted Drug Weight.’’. Section 2D1.1(c)(3) is amended by striking the period at the end of the line E:\FR\FM\25AUN1.SGM 25AUN1 sradovich on DSK3GMQ082PROD with NOTICES Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 10,000 KG but less than 30,000 KG of Converted Drug Weight.’’. Section 2D1.1(c)(4) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 3,000 KG but less than 10,000 KG of Converted Drug Weight.’’. Section 2D1.1(c)(5) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 1,000 KG but less than 3,000 KG of Converted Drug Weight.’’. Section 2D1.1(c)(6) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 700 KG but less than 1,000 KG of Converted Drug Weight.’’. Section 2D1.1(c)(7) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 400 KG but less than 700 KG of Converted Drug Weight.’’. Section 2D1.1(c)(8) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 100 KG but less than 400 KG of Converted Drug Weight.’’. Section 2D1.1(c)(9) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 80 KG but less than 100 KG of Converted Drug Weight.’’. Section 2D1.1(c)(10) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 60 KG but less than 80 KG of Converted Drug Weight.’’. Section 2D1.1(c)(11) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 40 KG but less than 60 KG of Converted Drug Weight.’’. Section 2D1.1(c)(12) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 20 KG but less than 40 KG of Converted Drug Weight.’’. Section 2D1.1(c)(13) is amended by striking the period at the end of the line VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ‘‘• At least 10 KG but less than 20 KG of Converted Drug Weight.’’. Section 2D1.1(c)(14) is amended by striking the period at the end of the line referenced to Schedule IV substances (except Flunitrazepam) and inserting a semicolon, and by adding at the end the following: ‘‘• At least 5 KG but less than 10 KG of Converted Drug Weight.’’. Section 2D1.1(c)(15) is amended by striking the period at the end of the line referenced to Schedule IV substances (except Flunitrazepam) and inserting a semicolon, and by adding at the end the following: ‘‘• At least 2.5 KG but less than 5 KG of Converted Drug Weight.’’. Section 2D1.1(c)(16) is amended by striking the period at the end of the line referenced to Schedule V substances and inserting a semicolon, and by adding at the end the following: ‘‘• At least 1 KG but less than 2.5 KG of Converted Drug Weight.’’. Section 2D1.1(c)(17) is amended by striking the period at the end of the line referenced to Schedule V substances and inserting a semicolon, and by adding at the end the following: ‘‘• Less than 1 KG of Converted Drug Weight.’’. The annotation to § 2D1.1(c) captioned ‘‘Notes to Drug Quantity Table’’ is amended by inserting at the end the following new Note (J): ‘‘(J) The term ‘Converted Drug Weight,’ for purposes of this guideline, refers to a nominal reference designation that is to be used as a conversion factor in the Drug Conversion Tables set forth in the Commentary below, to determine the offense level for controlled substances that are not specifically referenced in the Drug Quantity Table or when combining differing controlled substances.’’. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended— in Note 6 by striking ‘‘marihuana equivalency’’ and inserting ‘‘converted drug weight’’ and by inserting after ‘‘the most closely related controlled substance referenced in this guideline.’’ the following: ‘‘See Application Note 8.’’; in the heading of Note 8 by striking ‘‘Drug Equivalency’’ and inserting ‘‘Drug Conversion’’; in Note 8(A) by striking ‘‘Drug Equivalency Tables’’ both places such term appears and inserting ‘‘Drug Conversion Tables’’; by striking ‘‘to convert the quantity of the controlled substance involved in the offense to its PO 00000 Frm 00126 Fmt 4703 Sfmt 4703 40663 equivalent quantity of marihuana’’ and inserting ‘‘to find the converted drug weight of the controlled substance involved in the offense’’; by striking ‘‘Find the equivalent quantity of marihuana’’ and inserting ‘‘Find the corresponding converted drug weight’’; by striking ‘‘Use the offense level that corresponds to the equivalent quantity of marihuana’’ and inserting ‘‘Use the offense level that corresponds to the converted drug weight determined above’’; by striking ‘‘an equivalent quantity of 5 kilograms of marihuana’’ and inserting ‘‘5 kilogram of converted drug weight’’; and by striking ‘‘the equivalent quantity of marihuana would be 500 kilograms’’ and inserting ‘‘the converted drug weight would be 500 kilograms’’; in Note 8(B) by striking ‘‘Drug Equivalency Tables’’ each place such term appears and inserting ‘‘Drug Conversion Tables’’; by striking ‘‘convert each of the drugs to its marihuana equivalent’’ and inserting ‘‘convert each of the drugs to its converted drug weight’’; by striking ‘‘For certain types of controlled substances, the marihuana equivalencies’’ and inserting ‘‘For certain types of controlled substances, the converted drug weights assigned’’; by striking ‘‘e.g., the combined equivalent weight of all Schedule V controlled substances shall not exceed 2.49 kilograms of marihuana’’ and inserting ‘‘e.g., the combined converted weight of all Schedule V controlled substances shall not exceed 2.49 kilograms of converted drug weight’’; by striking ‘‘determine the marihuana equivalency for each schedule separately’’ and inserting ‘‘determine the converted drug weight for each schedule separately’’; and by striking ‘‘Then add the marihuana equivalencies to determine the combined marihuana equivalency’’ and inserting ‘‘Then add the converted drug weights to determine the combined converted drug weight’’; in Note 8(C)(i) by striking ‘‘of marihuana’’ each place such term appears and inserting ‘‘of converted drug weight’’; and by striking ‘‘The total is therefore equivalent to 95 kilograms’’ and inserting ‘‘The total therefore converts to 95 kilograms’’; in Note 8(C)(ii) by striking the following: ‘‘The defendant is convicted of selling 500 grams of marihuana (Level 6) and 10,000 units of diazepam (Level 6). The diazepam, a Schedule IV drug, is equivalent to 625 grams of marihuana. The total, 1.125 kilograms of marihuana, has an offense level of 8 in the Drug Quantity Table.’’, and inserting the following: E:\FR\FM\25AUN1.SGM 25AUN1 40664 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices ‘‘The defendant is convicted of selling 500 grams of marihuana (Level 6) and 10,000 units of diazepam (Level 6). The amount of marihuana converts to 500 grams of converted drug weight. The diazepam, a Schedule IV drug, converts to 625 grams of converted drug weight. The total, 1.125 kilograms of converted drug weight, has an offense level of 8 in the Drug Quantity Table.’’; in Note 8(C)(iii) by striking ‘‘is equivalent’’ both places such term appears and inserting ‘‘converts’’; by striking ‘‘of marihuana’’ each place such term appears and inserting ‘‘of converted drug weight’’; and by striking ‘‘The total is therefore equivalent’’ and inserting ‘‘The total therefore converts’’; in Note 8(C)(iv) by striking ‘‘marihuana equivalency’’ each place such term appears and inserting ‘‘converted drug weight’’; by striking ‘‘76 kilograms of marihuana’’ and inserting ‘‘76 kilograms’’; by striking ‘‘79.99 kilograms of marihuana’’ both places such term appears and inserting ‘‘79.99 kilograms of converted drug weight’’; by striking ‘‘equivalent weight’’ each place such term appears and inserting ‘‘converted weight’’; by striking ‘‘9.99 kilograms of marihuana’’ and inserting ‘‘9.99 kilograms’’; and by striking ‘‘2.49 kilograms of marihuana’’ and inserting ‘‘2.49 kilograms’’; and in Note 8(D)— in the heading, by striking ‘‘Drug Equivalency’’ and inserting ‘‘Drug Conversion’’; under the heading relating to Schedule I or II Opiates, by striking the heading as follows: ‘‘Schedule I or II Opiates*’’, and inserting the following new heading: ‘‘Schedule I or II Opiates*. Converted Drug Weight’’; sradovich on DSK3GMQ082PROD with NOTICES and by striking ‘‘of marihuana’’ each place such term appears; under the heading relating Cocaine and Other Schedule I and II Stimulants (and their immediate precursors), by striking the heading as follows: ‘‘Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*’’, and inserting the following new heading: ‘‘Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*. Converted Drug Weight’’; and by striking ‘‘of marihuana’’ each place such term appears; under the heading relating to LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors), by striking the heading as follows: VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 ‘‘LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors)*’’, and inserting the following new heading: ‘‘LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors)*. Converted Drug Weight’’; and by striking ‘‘of marihuana’’ each place such term appears; under the heading relating to Schedule I Marihuana, by striking the heading as follows: ‘‘Schedule I Marihuana’’, and inserting the following new heading: ‘‘Schedule I Marihuana. Converted Drug Weight’’; and by striking ‘‘of marihuana’’ each place such term appears; under the heading relating to Flunitrazepam, by striking the heading as follows: ‘‘Flunitrazepam**’’, and inserting the following new heading: ‘‘Flunitrazepam** .... Converted Drug Weight’’; and by striking ‘‘of marihuana’’; under the heading relating to Schedule I or II Depressants (except gamma-hydroxybutyric acid), by striking the heading as follows: ‘‘Schedule I or II Depressants (except gamma-hydroxybutyric acid)’’, and inserting the following new heading: ‘‘Schedule I or II Depressants (except gamma-hydroxybutyric acid). Converted Drug Weight’’; and by striking ‘‘of marihuana’’; under the heading relating to Gammahydroxybutyric Acid, by striking the heading as follows: ‘‘Gamma-hydroxybutyric Acid’’, and inserting the following new heading: ‘‘Gamma-hydroxybutyric Acid. Converted Drug Weight’’; and by striking ‘‘of marihuana’’; under the heading relating to Schedule III Substances (except ketamine), by striking the heading as follows: ‘‘Schedule III Substances (except ketamine)***’’, and inserting the following new heading: ‘‘Schedule III Substances (except ketamine)***. Converted Drug Weight’’; by striking ‘‘1 gm of marihuana’’ and inserting ‘‘1 gm’’; by striking PO 00000 Frm 00127 Fmt 4703 Sfmt 4703 ‘‘equivalent weight’’ and inserting ‘‘converted weight’’; and by striking ‘‘79.99 kilograms of marihuana’’ and inserting ‘‘79.99 kilograms of converted drug weight’’; under the heading relating to Ketamine, by striking the heading as follows: ‘‘Ketamine’’, and inserting the following new heading: ‘‘Ketamine ................. Converted Drug Weight’’; and by striking ‘‘of marihuana’’; under the heading relating to Schedule IV Substances (except flunitrazepam), by striking the heading as follows: ‘‘Schedule IV Substances (except flunitrazepam)*****’’, and inserting the following new heading: ‘‘Schedule IV Substances (except flunitrazepam) *****. Converted Drug Weight’’; by striking ‘‘0.0625 gm of marihuana’’ and inserting ‘‘0.0625 gm’’; by striking ‘‘equivalent weight’’ and inserting ‘‘converted weight’’; and by striking ‘‘9.99 kilograms of marihuana’’ and inserting ‘‘9.99 kilograms of converted drug weight’’; under the heading relating to Schedule V Substances, by striking the heading as follows: ‘‘Schedule V Substances******’’, and inserting the following new heading: ‘‘Schedule V Substances******. Converted Drug Weight’’; by striking ‘‘0.00625 gm of marihuana’’ and inserting ‘‘0.00625 gm’’; by striking ‘‘equivalent weight’’ and inserting ‘‘converted weight’’; and by striking ‘‘2.49 kilograms of marihuana’’ and inserting ‘‘2.49 kilograms of converted drug weight’’; under the heading relating to List I Chemicals (relating to the manufacture of amphetamine or methamphetamine), by striking the heading as follows: ‘‘List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)*******’’, and inserting the following new heading: ‘‘List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)*******. Converted Drug Weight’’; and by striking ‘‘of marihuana’’ each place such term appears; under the heading relating to Date Rape Drugs (except flunitrazepam, GHB, E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices or ketamine), by striking the heading as follows: ‘‘Date Rape Drugs (except flunitrazepam, GHB, or ketamine)’’, and inserting the following new heading: ‘‘Date Rape Drugs (except flunitrazepam, GHB, or ketamine). Converted Drug Weight’’; sradovich on DSK3GMQ082PROD with NOTICES and by striking ‘‘marihuana’’ each place such term appears; and in the text before the heading relating to Measurement Conversion Table, by striking ‘‘To facilitate conversions to drug equivalencies’’ and inserting ‘‘To facilitate conversions to converted drug weights’’. 7. Technical Amendment Synopsis of Amendment: This proposed amendment makes various technical changes to the Guidelines Manual. Part A of the proposed amendment makes certain clarifying changes to two guidelines. First, the proposed amendment amends Chapter One, Part A, Subpart 1(4)(b) (Departures) to provide an explanatory note addressing the fact that § 5K2.19 (Post-Sentencing Rehabilitative Efforts) was deleted by Amendment 768, effective November 1, 2012. Second, the proposed amendment makes minor clarifying changes to Application Note 2(A) to § 2B1.1 (Theft, Property Destruction, and Fraud), to make clear that, for purposes of subsection (a)(1)(A), an offense is ‘‘referenced to this guideline’’ if § 2B1.1 is the applicable Chapter Two guideline specifically referenced in Appendix A (Statutory Index) for the offense of conviction. Part B of the proposed amendment makes technical changes in §§ 2Q1.3 (Mishandling of Other Environmental Pollutants; Recordkeeping, Tampering, and Falsification), 2R1.1 (Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among Competitors), 4A1.2 (Definitions and Instructions for Computing Criminal History), and 4B1.4 (Armed Career Criminal), to correct title references to § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)). Part C of the proposed amendment makes clerical changes to— (1) the Commentary to § 1B1.13 (Reduction in Term of Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)), to correct a typographical error by inserting a missing word in Application Note 4; (2) subsection (d)(6) to § 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), to VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 40665 correct a typographical error in the line referencing Pseudoephedrine; (3) subsection (e)(2) to § 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), to correct a punctuation mark under the heading relating to List I Chemicals; (4) the Commentary to § 2M2.1 (Destruction of, or Production of Defective, War Material, Premises, or Utilities) captioned ‘‘Statutory Provisions,’’ to add a missing section symbol and a reference to Appendix A (Statutory Index); (5) the Commentary to § 2Q1.1 (Knowing Endangerment Resulting From Mishandling Hazardous or Toxic Substances, Pesticides or Other Pollutants) captioned ‘‘Statutory Provisions,’’ to add a missing reference to 42 U.S.C. 7413(c)(5) and a reference to Appendix A (Statutory Index); (6) the Commentary to § 2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce) captioned ‘‘Statutory Provisions,’’ to add a specific reference to 42 U.S.C. 7413(c)(1)–(4); (7) the Commentary to § 2Q1.3 (Mishandling of Other Environmental Pollutants; Recordkeeping, Tampering, and Falsification) captioned ‘‘Statutory Provisions,’’ to add a specific reference to 42 U.S.C. 7413(c)(1)–(4); (8) subsection (a)(4) to § 5D1.3. (Conditions of Supervised Release), to change an inaccurate reference to ‘‘probation’’ to ‘‘supervised release’’; and (9) the lines referencing ‘‘18 U.S.C. 371’’ and ‘‘18 U.S.C. 1591’’ in Appendix A (Statutory Index), to rearrange the order of certain Chapter Two guidelines references to place them in proper numerical order. Note 2(A)(i) by striking ‘‘as determined under the provisions of § 1B1.2 (Applicable Guidelines) for the offense of conviction’’ and inserting the following: ‘‘specifically referenced in Appendix A (Statutory Index) for the offense of conviction, as determined under the provisions of § 1B1.2 (Applicable Guidelines)’’. (A) Clarifying Changes Proposed Amendment The Commentary to § 1B1.13 captioned ‘‘Application Notes’’ is amended in Note 4 by striking ‘‘factors set forth 18 U.S.C. 3553(a)’’ and inserting ‘‘factors set forth in 18 U.S.C. 3553(a)’’. Section 2D1.11 is amended— in subsection (d)(6) by striking ‘‘Pseuodoephedrine’’ and inserting ‘‘Pseudoephedrine’’; and in subsection (e)(2), under the heading relating to List I Chemicals, by striking the period at the end and inserting a semicolon. The Commentary to § 2M2.1 captioned ‘‘Statutory Provisions’’ is amended by striking ‘‘§ 2153’’ and inserting ‘‘§§ 2153’’, and by inserting at Proposed Amendment Chapter One, Part A is amended— in Subpart 1(4)(b) (Departures) by inserting an asterisk after ‘‘§ 5K2.19 (Post-Sentencing Rehabilitative Efforts)’’, and by inserting after the first paragraph the following new paragraph: ‘‘*Note: Section 5K2.19 (PostSentencing Rehabilitative Efforts) was deleted by Amendment 768, effective November 1, 2012. (See USSG App. C, amendment 768.)’’; and in the note at the end of Subpart 1(4)(d) (Probation and Split Sentences) by striking ‘‘Supplement to Appendix C’’ and inserting ‘‘USSG App. C’’. The Commentary to § 2B1.1 captioned ‘‘Application Notes’’ is amended in PO 00000 Frm 00128 Fmt 4703 Sfmt 4703 (B) Title References to § 4A1.3 Proposed Amendment The Commentary to § 2Q1.3 captioned ‘‘Application Notes’’ is amended in Note 8 by striking ‘‘Adequacy of Criminal History Category’’ and inserting ‘‘Departures Based on Inadequacy of Criminal History Category (Policy Statement)’’. The Commentary to § 2R1.1 captioned ‘‘Application Notes’’ is amended in Note 7 by striking ‘‘Adequacy of Criminal History Category’’ and inserting ‘‘Departures Based on Inadequacy of Criminal History Category (Policy Statement)’’. Section 4A1.2 is amended in subsections (h), (i), and (j) by striking ‘‘Adequacy of Criminal History Category’’ each place such term appears and inserting ‘‘Departures Based on Inadequacy of Criminal History Category (Policy Statement)’’. The Commentary to § 4A1.2 captioned ‘‘Application Notes’’ is amended in Notes 6 and 8 by striking ‘‘Adequacy of Criminal History Category’’ both places such term appears and inserting ‘‘Departures Based on Inadequacy of Criminal History Category (Policy Statement)’’. The Commentary to § 4B1.4 captioned ‘‘Background’’ is amended by striking ‘‘Adequacy of Criminal History Category’’ and inserting ‘‘Departures Based on Inadequacy of Criminal History Category (Policy Statement)’’. (C) Clerical Changes E:\FR\FM\25AUN1.SGM 25AUN1 40666 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices the end the following: ‘‘For additional statutory provision(s), see Appendix A (Statutory Index).’’. The Commentary to § 2Q1.1 captioned ‘‘Statutory Provisions’’ is amended by striking ‘‘42 U.S.C. 6928(e)’’ and inserting ‘‘42 U.S.C. 6928(e), 7413(c)(5)’’, and by inserting at the end the following: ‘‘For additional statutory provision(s), see Appendix A (Statutory Index).’’. The Commentary to § 2Q1.2 captioned ‘‘Statutory Provisions’’ is amended by striking ‘‘7413’’ and inserting ‘‘7413(c)(1)–(4)’’. The Commentary to § 2Q1.3 captioned ‘‘Statutory Provisions’’ is amended by striking ‘‘7413’’ and inserting ‘‘7413(c)(1)–(4)’’. Section 5D1.3(a)(4) is amended by striking ‘‘release on probation’’ and inserting ‘‘release on supervised release’’. Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 371 by rearranging the guidelines to place them in proper numerical order; and in the line referencing 18 U.S.C. 1591 by rearranging the guidelines to place them in proper numerical order. [FR Doc. 2017–18076 Filed 8–24–17; 8:45 am] sradovich on DSK3GMQ082PROD with NOTICES BILLING CODE 2210–40–P VerDate Sep<11>2014 17:40 Aug 24, 2017 Jkt 241001 DEPARTMENT OF VETERANS AFFAIRS [OMB Control No. 2900–0067] Agency Information Collection Activity Under OMB Review: Application for Automobile or Other Conveyance and Adaptive Equipment Veterans Benefits Administration, Department of Veterans Affairs. ACTION: Notice. AGENCY: In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument. DATES: Comments must be submitted on or before September 25, 2017. ADDRESSES: Submit written comments on the collection of information through www.Regulations.gov, or to Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: VA Desk Officer; 725 17th St. NW., Washington, DC 20503 or sent through electronic mail to oira_submission@ omb.eop.gov. Please refer to ‘‘OMB Control No. 2900–0067’’ in any correspondence. FOR FURTHER INFORMATION CONTACT: Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont SUMMARY: PO 00000 Frm 00129 Fmt 4703 Sfmt 9990 Avenue NW., Washington, DC 20420, (202) 461–5870 or email cynthia.harveypryor@va.gov. Please refer to ‘‘OMB Control No. 2900–0067’’ in any correspondence. SUPPLEMENTARY INFORMATION: Authority: 44 U.S.C. 3501–21. Title: Application for Automobile or Other Conveyance and Adaptive Equipment (Under 38 U.S.C. 3901– 3904) (VA Form 21–4502). OMB Control Number: 2900–0067. Type of Review: Extension of a currently approved collection. Abstract: VA Form 21–4502 is used to gather the necessary information to determine if a veteran or serviceperson is entitled to an automobile allowance and adaptive equipment. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The Federal Register Notice with a 60-day comment period soliciting comments on this collection of information was published at 82 FR 113 on June 14, 2017, page 27328. Affected Public: Individuals or Households. Estimated Annual Burden: 388. Estimated Average Burden per Respondent: 15 minutes. Frequency of Response: One time. Estimated Number of Respondents: 1,552. By direction of the Secretary. Cynthia Harvey-Pryor, Department Clearance Officer, Office of Quality and Compliance, Department of Veterans Affairs. [FR Doc. 2017–17982 Filed 8–24–17; 8:45 am] BILLING CODE 8320–01–P E:\FR\FM\25AUN1.SGM 25AUN1

Agencies

[Federal Register Volume 82, Number 164 (Friday, August 25, 2017)]
[Notices]
[Pages 40651-40666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18076]


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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.

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SUMMARY: The United States Sentencing Commission is considering 
promulgating amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that 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 October 10, 2017. Written reply comments, which may only 
respond to issues raised in the original comment period, should be 
received by the Commission not later than November 6, 2017. Public 
comment regarding a proposed amendment received after the close of the 
comment period, and reply comment received on issues not raised in 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 Web site 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 20002-8002, Attention: Public Affairs.

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. 994(a). The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline 
amendments to the Congress not later than the first day of May each 
year pursuant to 28 U.S.C. 994(p).
    Publication of a proposed amendment requires the affirmative vote 
of at least three voting members of the Commission and is deemed to be 
a request for public comment on the proposed amendment. See Rules 2.2 
and 4.4 of the Commission's Rules of Practice and Procedure. In 
contrast, the affirmative vote of at least four voting members is 
required to promulgate an amendment and submit it to Congress. See Rule 
2.2; 28 U.S.C. 994(p).
    The proposed amendments in this notice are presented in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline, policy statement, or commentary. Bracketed 
text within a proposed amendment indicates a heightened interest on the 
Commission's part in comment and suggestions regarding alternative 
policy choices; for example, a proposed enhancement of [2][4][6] levels 
indicates that the Commission is considering, and invites comment on, 
alternative policy choices regarding the appropriate level of 
enhancement. Similarly, bracketed text within a specific offense 
characteristic or application note means that the Commission 
specifically invites comment on whether the proposed provision is 
appropriate. Second, the Commission has highlighted certain issues for 
comment and invites suggestions on how the Commission should respond to 
those issues.
    In summary, the proposed amendments and issues for comment set 
forth in this notice are as follows:
    (1) A multi-part proposed amendment to respond to the Bipartisan 
Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015), including (A) 
revisions to Appendix A (Statutory Index), and a related issue for 
comment; and (B) amending Sec.  2B1.1 (Theft, Property Destruction, and 
Fraud) to address new increased penalties for certain persons who 
commit fraud offenses under certain Social Security programs, and 
related issues for comment;
    (2) a multi-part proposed amendment relating to the findings and 
recommendations contained in the May 2016 Report of the Commission's 
Tribal Issues Advisory Group, including (A) amending the Commentary to 
Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)) to set forth a non-exhaustive list of 
factors for the court to consider in determining whether, and to what 
extent, an upward departure based on a tribal court conviction is 
appropriate, and related issues for comment; and (B) amending the 
Commentary to Sec.  1B1.1 (Application Instructions) to provide a 
definition of ``court protection order,'' and a related issue for 
comment;
    (3) a multi-part proposed amendment to Chapters Four (Criminal 
History and Criminal Livelihood) and Five (Determining the Sentence), 
including (A) setting forth options for a new Chapter Four guideline, 
at Sec.  4C1.1 (First Offenders), and amending Sec.  5C1.1 (Imposition 
of a Term of Imprisonment) to provide lower guideline ranges for 
``first offenders'' generally and increase the availability of 
alternatives to incarceration for such offenders at the lower levels of 
the Sentencing Table, and related issues for comment; and (B) revising 
Chapter Five to (i) amend the Sentencing Table in Chapter Five, Part A 
to expand Zone B by consolidating Zones B and C and (ii) amend the 
Commentary to Sec.  5F1.2 (Home Detention) to revise language requiring 
electronic monitoring, and related issues for comment.
    (4) a proposed amendment to the Commentary to Sec.  3E1.1 
(Acceptance of Responsibility) setting forth options to revise how a 
defendant's challenge to relevant conduct should be considered in 
determining whether the defendant has accepted responsibility for 
purposes of the guideline, and a related issue for comment;
    (5) a multi-part proposed amendment to the Guidelines Manual to 
respond to recently enacted legislation and

[[Page 40652]]

miscellaneous guideline issues, including (A) amending Sec.  2B5.3 
(Criminal Infringement of Copyright or Trademark) to respond to changes 
made by the Transnational Drug Trafficking Act of 2015, Public Law 114-
154 (May 16, 2016); (B) amending Sec.  2A3.5 (Failure to Register as a 
Sex Offender), Sec.  2A3.6 (Aggravated Offenses Relating to 
Registration as a Sex Offender), and Appendix A (Statutory Index) to 
respond to changes made by the International Megan's Law to Prevent 
Child Exploitation and Other Sexual Crimes Through Advanced 
Notification of Traveling Sex Offenders Act, Public Law 114-119 (Feb. 
8, 2016); (C) revisions to Appendix A (Statutory Index) to respond to a 
new offense established by the Frank R. Lautenberg Chemical Safety for 
the 21st Century Act, Public Law 114-182 (June 22, 2016); (D) a 
technical amendment to 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 (E) amending Sec.  5D1.3 (Conditions of 
Supervised Release) to respond to changes made by the Justice for All 
Reauthorization Act of 2016, Public Law 114-324 (Dec. 16, 2016).
    (6) a proposed amendment to make technical changes to Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to replace ``marihuana equivalency'' as the conversion 
factor in the Drug Equivalency Tables for determining penalties for 
certain controlled substances;
    (7) a proposed amendment to make various technical changes to the 
Guidelines Manual, including (A) an explanatory note in Chapter One, 
Part A, Subpart 1(4)(b) (Departures) and clarifying changes to the 
Commentary to Sec.  2B1.1 (Theft, Property Destruction, and Fraud); (B) 
technical changes to Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History) and to the Commentary of other guidelines 
to correct title references to Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category (Policy Statement)); and (C) 
clerical changes to Sec.  2D1.11 (Unlawful Distributing, Importing, 
Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), 
Sec.  5D1.3 (Conditions of Supervised Release), Appendix A (Statutory 
Index), and to the Commentary of other guidelines.
    In addition, the Commission requests public comment regarding 
whether, pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any 
proposed amendment published in this notice should be included in 
subsection (d) of Sec.  1B1.10 (Reduction in Term of Imprisonment as a 
Result of Amended Guideline Range (Policy Statement)) as an amendment 
that may be applied retroactively to previously sentenced defendants. 
The Commission lists in Sec.  1B1.10(d) the specific guideline 
amendments that the court may apply retroactively under 18 U.S.C. 
3582(c)(2). The background commentary to Sec.  1B1.10 lists the purpose 
of the amendment, the magnitude of the change in the guideline range 
made by the amendment, and the difficulty of applying the amendment 
retroactively to determine an amended guideline range under Sec.  
1B1.10(b) as among the factors the Commission considers in selecting 
the amendments included in Sec.  1B1.10(d). To the extent practicable, 
public comment should address each of these factors.
    The text of the proposed amendments and related issues for comment 
are set forth below. Additional information pertaining to the proposed 
amendments and issues for comment described in this notice may be 
accessed through the Commission's Web site at www.ussc.gov.

    Authority:  28 U.S.C. 994(a), (o), (p), (x); USSC Rules of 
Practice and Procedure 4.3, 4.4.

William H. Pryor, Jr.,
Acting Chair.

Proposed Amendments to the Sentencing Guidelines, Policy Statements, 
and Official Commentary

1. Bipartisan Budget Act

    Synopsis of Proposed Amendment: This proposed amendment responds to 
the Bipartisan Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015), 
which, among other things, amended three existing criminal statutes 
concerned with fraudulent claims under certain Social Security 
programs.
    The three criminal statutes amended by the Bipartisan Budget Act of 
2015 are sections 208 (Penalties [for fraud involving the Federal Old-
Age and Survivors Insurance Trust Fund]), 811 (Penalties for fraud 
[involving special benefits for certain World War II veterans]), and 
1632 (Penalties for fraud [involving supplemental security income for 
the aged, blind, and disabled]) of the Social Security Act (42 U.S.C. 
408, 1011, and 1383a, respectively).

(A) Conspiracy To Commit Social Security Fraud

    The Bipartisan Budget Act of 2015 added new subdivisions 
prohibiting conspiracy to commit fraud for substantive offenses already 
contained in the three statutes (42 U.S.C. 408, 1011, and 1383a). For 
each of the three statutes, the new subdivision provides that whoever 
``conspires to commit any offense described in any of [the] 
paragraphs'' enumerated shall be imprisoned for not more than five 
years, the same statutory maximum penalty applicable to the substantive 
offense.
    The three amended statutes are currently referenced in Appendix A 
(Statutory Index) to Sec.  2B1.1 (Theft, Property Destruction, and 
Fraud). The proposed amendment would amend Appendix A so that sections 
408, 1011, and 1383a of Title 42 are referenced not only to Sec.  2B1.1 
but also to Sec.  2X1.1 (Attempt, Solicitation, or Conspiracy (Not 
Covered by a Specific Office Guideline)).
    An issue for comment is provided.

(B) Increased Penalties for Certain Individuals Violating Positions of 
Trust

    The Bipartisan Budget Act of 2015 also amended sections 408, 1011, 
and 1383a of Title 42 to add increased penalties for certain persons 
who commit fraud offenses under the relevant Social Security programs. 
The Act included a provision in all three statutes identifying such a 
person as:

a person who receives a fee or other income for services performed in 
connection with any determination with respect to benefits under this 
title (including a claimant representative, translator, or current or 
former employee of the Social Security Administration), or who is a 
physician or other health care provider who submits, or causes the 
submission of, medical or other evidence in connection with any such 
determination . . . .

    A person who meets this requirement and is convicted of a fraud 
offense under one of the three amended statutes may be imprisoned for 
not more than ten years, double the otherwise applicable five-year 
penalty for other offenders. The new increased penalties apply to all 
of the fraudulent conduct in subsection (a) of the three statutes.
    The proposed amendment would amend Sec.  2B1.1 to address cases in 
which the defendant was convicted under 42 U.S.C. 408(a), 1011(a), or 
1383a(a) and the statutory maximum term of ten years' imprisonment 
applies.

[[Page 40653]]

It provides an enhancement of [4][2] levels and a minimum offense level 
of [14][12] for such cases. It also adds Commentary specifying whether 
an adjustment under Sec.  3B1.3 (Abuse of Position of Trust or Use of 
Special Skill) applies -- bracketing two possibilities: if the 
enhancement applies, the adjustment does not apply; and if the 
enhancement applies, the adjustment is not precluded from applying.
    Issues for comment are also provided.

(A) Conspiracy To Commit Social Security Fraud

Proposed Amendment
    Appendix A (Statutory Index) is amended in the line referenced to 
42 U.S.C. 408 by inserting ``, 2X1.1'' at the end; in the line 
referenced to 42 U.S.C. 1011 by inserting ``, 2X1.1'' at the end; and 
in the line referenced to 42 U.S.C. 1383a(a) by inserting ``, 2X1.1'' 
at the end.
Issue for Comment
    1. Part A of the proposed amendment would reference the new 
conspiracy offenses under 42 U.S.C. 408, 1011, and 1383a to Sec.  2X1.1 
(Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Office 
Guideline)). The Commission invites comment on whether the guidelines 
covered by the proposed amendment adequately account for these 
offenses. If not, what revisions to the guidelines would be appropriate 
to account for these offenses? Should the Commission reference these 
new offenses to other guidelines instead of, or in addition to, the 
guidelines covered by the proposed amendment?

(B) Increased Penalties for Certain Individuals Violating Positions of 
Trust

Proposed Amendment
    Section 2B1.1(b) is amended by redesignating paragraphs (13) 
through (19) as paragraphs (14) through (20), respectively, and by 
inserting the following new paragraph (13):
    ``(13) If the defendant was convicted under 42 U.S.C. 408(a), 
1011(a), or 1383a(a) and the statutory maximum term of ten years' 
imprisonment applies, increase by [4][2] levels. If the resulting 
offense level is less than [14][12], increase to level [14][12].''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 11 through 20 as Notes 12 through 21, 
respectively, and by inserting the following new Note 11:
    ``11. Interaction of Subsection (b)(13) and Sec.  3B1.3.--[If 
subsection (b)(13) applies, do not apply Sec.  3B1.3 (Abuse of Position 
of Trust or Use of Special Skill).][Application of subsection (b)(13) 
does not preclude a defendant from consideration for an adjustment 
under Sec.  3B1.3 (Abuse of Position of Trust or Use of Special 
Skill).]''.
Issues for Comment
    1. The Bipartisan Budget Act of 2015 amended sections 408, 1011, 
and 1383a of Title 42 to include a provision in all three statutes 
increasing the statutory maximum term of imprisonment from five years 
to ten years for certain persons who commit fraud offenses under 
subsection (a) of the three statutes. The Act identifies such a person 
as:

a person who receives a fee or other income for services performed in 
connection with any determination with respect to benefits under this 
title (including a claimant representative, translator, or current or 
former employee of the Social Security Administration), or who is a 
physician or other health care provider who submits, or causes the 
submission of, medical or other evidence in connection with any such 
determination . . . .

    The Commission seeks comment on how, if at all, the guidelines 
should be amended to address cases in which the offense of conviction 
is 42 U.S.C. 408, 1011, or 1383a, and the statutory maximum term of ten 
years' imprisonment applies because the defendant was a person 
described in 42 U.S.C. 408(a), 1011(a), or 1383a(a). Are these cases 
adequately addressed by existing provisions in the guidelines, such as 
the adjustment in Sec.  3B1.3 (Abuse of Position of Trust or Use of 
Special Skill)? If so, as an alternative to the proposed amendment, 
should the Commission amend Sec.  2B1.1 only to provide an application 
note that expressly provides that, for a defendant subject to the ten 
years' statutory maximum in such cases, an adjustment under Sec.  3B1.3 
ordinarily would apply? If not, how should the Commission amend the 
guidelines to address these cases?
    2. The proposed amendment would amend Sec.  2B1.1 to provide an 
enhancement and a minimum offense level for cases in which the 
defendant was convicted under 42 U.S.C. 408(a), 1011(a), or 1383a(a) 
and the statutory maximum term of ten years' imprisonment applies 
because the defendant was a person described in 42 U.S.C. 408(a), 
1011(a), or 1383a(a). However, there may be cases in which a defendant, 
who meets the criteria set forth for the new statutory maximum term of 
ten years' imprisonment, is convicted under a general fraud statute 
(e.g., 18 U.S.C. 1341) for an offense involving conduct described in 42 
U.S.C. 408(a), 1011(a), or 1383a(a).
    The Commission seeks comment on whether the Commission should 
instead amend Sec.  2B1.1 to provide a general specific offense 
characteristic for such cases. For example, should the Commission 
provide an enhancement for cases in which the offense involved conduct 
described in 42 U.S.C. 408(a), 1011(a), or 1383a(a) and the defendant 
is a person ``who receives a fee or other income for services performed 
in connection with any determination with respect to benefits [covered 
by those statutory provisions] (including a claimant representative, 
translator, or current or former employee of the Social Security 
Administration), or who is a physician or other health care provider 
who submits, or causes the submission of, medical or other evidence in 
connection with any such determination''? If so, how many levels would 
be appropriate for such an enhancement? How should such an enhancement 
interact with the existing enhancements at Sec.  2B1.1 and the Chapter 
Three adjustment at Sec.  3B1.3 (Abuse of Position of Trust or Use of 
Special Skill)?

2. Tribal Issues

    Synopsis of Proposed Amendment: This proposed amendment is the 
result of the Commission's study of the May 2016 Report of the 
Commission's Tribal Issues Advisory Group. See U.S. Sentencing Comm'n, 
``Notice of Final Priorities,'' 82 FR 39949 (Aug. 22, 2017). See also 
Report of the Tribal Issues Advisory Group (May 16, 2016), at http://www.ussc.gov/research/research-publications/report-tribal-issues-advisory-group.
    In 2015, the Commission established the Tribal Issues Advisory 
Group (TIAG) as an ad hoc advisory group to the Commission. Among other 
things, the Commission tasked the TIAG with studying the following 
issues--
    (A) the operation of the federal sentencing guidelines as they 
relate to American Indian defendants and victims and to offenses 
committed in Indian Country, and any viable methods for revising the 
guidelines to (i) improve their operation or (ii) address particular 
concerns of tribal communities and courts;
    (B) whether there are disparities in the application of the federal 
sentencing guidelines to American Indian defendants, and, if so, how to 
address them;
    (C) the impact of the federal sentencing guidelines on offenses 
committed in Indian Country in

[[Page 40654]]

comparison with analogous offenses prosecuted in state courts and 
tribal courts;
    (D) the use of tribal court convictions in the computation of 
criminal history scores, risk assessment, and for other purposes;
    (E) how the federal sentencing guidelines should account for 
protection orders issued by tribal courts; and
    (F) any other issues relating to American Indian defendants and 
victims, or to offenses committed in Indian Country, that the TIAG 
considers appropriate. See Tribal Issues Advisory Group Charter Sec.  
1(b)(3).
    The Commission also directed the TIAG to present a final report 
with its findings and recommendations, including any recommendations 
that the TIAG considered appropriate on potential amendments to the 
guidelines and policy statements. See id. Sec.  6(a). On May 16, 2016, 
the TIAG presented to the Commission its final report. Among the 
recommendations suggested in the Report, the TIAG recommends revisions 
to the Guidelines Manual relating to the use of tribal court 
convictions in the computation of criminal history points and how the 
guidelines should account for protection orders issued by tribal 
courts.
    The proposed amendment contains two parts (Parts A and B). The 
Commission is considering whether to promulgate one or both of these 
parts, as they are not mutually exclusive.

(A) Tribal Court Convictions

    Pursuant to Chapter Four, Part A (Criminal History), sentences 
resulting from tribal court convictions are not counted for purposes of 
calculating criminal history points, but may be considered under Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category 
(Policy Statement)). See USSG Sec.  4A1.2(i). The policy statement at 
Sec.  4A1.3 allows for upward departures if reliable information 
indicates that the defendant's criminal history category substantially 
underrepresents the seriousness of the defendant's criminal history. 
Among the grounds for departure, the policy statement includes 
``[p]rior sentences not used in computing the criminal history category 
(e.g., sentences for foreign and tribal offenses).'' USSG Sec.  
4A1.3(a)(2)(A).
    As noted in the TIAG's report, in recent years there have been 
important changes in tribal criminal jurisdiction. In 2010, Congress 
enacted the Tribal Law and Order Act of 2010 (TLOA), Public Law 111-
211, to address high rates of violent crime in Indian Country by 
improving criminal justice funding and infrastructure in tribal 
government, and expanding the sentencing authority of tribal court 
systems. In 2013, the Violence Against Women Reauthorization Act of 
2013 (VAWA Reauthorization), Public Law 113-4, was enacted to expand 
the criminal jurisdiction of tribes to prosecute, sentence, and convict 
Indians and non-Indians who assault Indian spouses or dating partners 
or violate a protection order in Indian Country. It also established 
new assault offenses and enhanced existing assault offenses. Both 
statutes increased criminal jurisdiction for tribal courts, but also 
required more robust court procedures and provided more procedural 
protections for defendants.
    The TIAG notes in its report that ``[w]hile some tribes have 
exercised expanded jurisdiction under TLOA and the VAWA 
Reauthorization, most have not done so. Given the lack of tribal 
resources, and the absence of significant additional funding under TLOA 
and the VAWA Reauthorization to date, it is not certain that more 
tribes will be able to do so any time soon.'' TIAG Report, at 10-11. 
Members of the TIAG describe their experience with tribal courts as 
``widely varied,'' expressing among their findings certain concerns 
about funding, perceptions of judicial bias or political influence, due 
process protections, and access to tribal court records. Id. at 11-12.
    The TIAG report highlights that ``[t]ribal courts occupy a unique 
and valuable place in the criminal justice system,'' while also 
recognizing that ``[t]ribal courts range in style.'' Id. at 13. 
According to the TIAG, the differences in style and the concerns 
expressed above ``make it often difficult for a federal court to 
determine how to weigh tribal court convictions in rendering a 
sentencing decision.'' Id. at 11. It also asserts that ``taking a 
single approach to the consideration of tribal court convictions would 
be very difficult and could potentially lead to a disparate result 
among Indian defendants in federal courts.'' Id. at 12. Thus, the TIAG 
concludes that tribal convictions should not be counted for purposes of 
determining criminal history points pursuant to Chapter Four, Part A, 
and that ``the current use of USSG Sec.  4A1.3 to depart upward in 
individual cases continues to allow the best formulation of `sufficient 
but not greater than necessary' sentences for defendants, while not 
increasing sentencing disparities or introducing due process 
concerns.'' Id. Nevertheless, the TIAG recommends that the Commission 
amend Sec.  4A1.3 to provide guidance and a more structured analytical 
framework for courts to consider when determining whether a departure 
is appropriate based on a defendant's record of tribal court 
convictions. The guidance recommended by the TIAG ``collectively . . . 
reflect[s] important considerations for courts to balance the rights of 
defendants, the unique and important status of tribal courts, the need 
to avoid disparate sentences in light of disparate tribal court 
practices and circumstances, and the goal of accurately assessing the 
severity of any individual defendant's criminal history.'' Id. at 13.
    The proposed amendment would amend the Commentary to Sec.  4A1.3 to 
set forth a non-exhaustive list of factors for the court to consider in 
determining whether, and to what extent, an upward departure based on a 
tribal court conviction is appropriate.
    Issues for comment are also provided.

(B) Court Protection Orders

    Under the Guidelines Manual, the violation of a court protection 
order is a specific offense characteristic in three Chapter Two offense 
guidelines. See USSG Sec. Sec.  2A2.2 (Aggravated Assault), 2A6.1 
(Threatening or Harassing Communications; Hoaxes; False Liens), and 
2A6.2 (Stalking or Domestic Violence). The Commission has heard 
concerns that the term ``court protection order'' has not been defined 
in the guidelines and should be clarified.
    The TIAG notes in its report the importance of defining ``court 
protection order'' in the guidelines, because--

    [a] clear definition of that term will ensure that orders used 
for sentencing enhancements are the result of court proceedings 
assuring appropriate due process protections, that there is 
consistent identification and treatment of such orders, and that 
such orders issued by tribal courts receive treatment consistent 
with that of other issuing jurisdictions. TIAG Report, at 14.

    The TIAG recommends that the Commission adopt a definition of 
``court protection order'' that incorporates the statutory provisions 
at 18 U.S.C. 2265 and 2266. Section 2266(5) provides that the term 
``protection order'' includes:

    (A) any injunction, restraining order, or any other order issued 
by a civil or criminal court for the purpose of preventing violent 
or threatening acts or harassment against, sexual violence, or 
contact or communication with or physical proximity to, another 
person, including any temporary or final order issued by a civil or 
criminal court whether obtained by filing an independent action or 
as a pendente lite order in another proceeding so long as any civil 
or criminal order was issued in response to a complaint, petition, 
or motion filed by or on behalf of a person seeking protection; and

[[Page 40655]]

    (B) any support, child custody or visitation provisions, orders, 
remedies or relief issued as part of a protection order, restraining 
order, or injunction pursuant to State, tribal, territorial, or 
local law authorizing the issuance of protection orders, restraining 
orders, or injunctions for the protection of victims of domestic 
violence, sexual assault, dating violence, or stalking. 18 U.S.C. 
2266(5).

    Section 2265(b) provides that

    A protection order issued by a State, tribal, or territorial 
court is consistent with this subsection if--
    (1) such court has jurisdiction over the parties and matter 
under the law of such State, Indian tribe, or territory; and
    (2) reasonable notice and opportunity to be heard is given to 
the person against whom the order is sought sufficient to protect 
that person's right to due process. In the case of ex parte orders, 
notice and opportunity to be heard must be provided within the time 
required by State, tribal, or territorial law, and in any event 
within a reasonable time after the order is issued, sufficient to 
protect the respondent's due process rights. 18 U.S.C. 2265(b).

    The proposed amendment would amend the Commentary to Sec.  1B1.1 
(Application Instructions) to provide a definition of court protection 
order derived from 18 U.S.C. 2266(5), with a provision that it must be 
consistent with 18 U.S.C. 2265(b).
    An issue for comment is also provided.

(A) Tribal Court Convictions

Proposed Amendment
    Section 4A1.3(a)(2) is amended by striking ``subsection (a)'' and 
inserting ``subsection (a)(1)''; and by striking ``tribal offenses'' 
and inserting ``tribal convictions''.
    The Commentary to Sec.  4A1.3 captioned ``Application Notes'' is 
amended in Note 2 by inserting at the end the following new paragraph 
(C):
    ``(C) Upward Departures Based on Tribal Court Convictions.--In 
determining whether, or to what extent, an upward departure based on a 
tribal court conviction is appropriate, the court shall consider the 
factors set forth in Sec.  4A1.3(a) above and, in addition, may 
consider relevant factors such as the following:
    (i) The defendant was represented by a lawyer, had the right to a 
trial by jury, and received other due process protections consistent 
with those provided to criminal defendants under the United States 
Constitution.
    (ii) The tribe was exercising expanded jurisdiction under the 
Tribal Law and Order Act of 2010, Public Law 111-211 (July 29, 2010), 
and the Violence Against Women Reauthorization Act of 2013, Public Law 
113-4 (March 7, 2013).
    (iii) The tribal court conviction is not based on the same conduct 
that formed the basis for a conviction from another jurisdiction that 
receives criminal history points pursuant to this Chapter.
    (iv) The conviction is for an offense that otherwise would be 
counted under Sec.  4A1.2 (Definitions and Instructions for Computing 
Criminal History).
    [(v) At the time the defendant was sentenced, the tribal government 
had formally expressed a desire that convictions from its courts should 
be counted for purposes of computing criminal history pursuant to the 
Guidelines Manual.]''.
Issues for Comment
    1. Part A of the proposed amendment would provide a list of 
relevant factors that courts may consider, in addition to the factors 
set forth in Sec.  4A1.3(a), in determining whether an upward departure 
based on a tribal court conviction may be warranted. The Commission 
seeks comment on whether the factors provided in the proposed amendment 
are appropriate. Should any factors be deleted or changed? Should the 
Commission provide additional or different guidance? If so, what 
guidance should the Commission provide?
    In particular, the Commission seeks comment on how these factors 
should interact with each other and with the factors already contained 
in Sec.  4A1.3(a). Should the Commission provide greater emphasis on 
one or more factors set forth in the proposed amendment? For example, 
how much weight should be given to factors that address due process 
concerns (subdivisions (i) and (ii)) in relation to the other factors 
provided in the proposed amendment, such as those factors relevant to 
preventing unwarranted double counting (subdivisions (iii) and (iv))? 
Should the Commission provide that in order to consider whether an 
upward departure based on a tribal court conviction is appropriate, and 
before taking into account any other factor, the court must first 
determine as a threshold factor that the defendant received due process 
protections consistent with those provided to criminal defendants under 
the United States Constitution?
    Finally, Part A of the proposed amendment brackets the possibility 
of including as a factor that courts may consider in deciding whether 
to depart based on a tribal court conviction if, ``at the time the 
defendant was sentenced, the tribal government had formally expressed a 
desire that convictions from its courts should be counted for purposes 
of computing criminal history pursuant to the Guidelines Manual.'' The 
Commission invites broad comment on this factor and its interaction 
with the other factors set forth in the proposed amendment. Is this 
factor relevant to the court's determination of whether to depart? What 
are the advantages and disadvantages of including such a factor? How 
much weight should be given to this factor in relation to the other 
factors provided in the proposed amendment? What criteria should be 
used in determining when a tribal government has ``formally expressed a 
desire'' that convictions from its courts should count? How would 
tribal governments notify and make available such statements?
    2. Pursuant to subsection (i) of Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History), sentences resulting from 
tribal court convictions are not counted for purposes of calculating 
criminal history points, but may be considered under Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category (Policy 
Statement)). As stated above, the policy statement at Sec.  4A1.3 
allows for upward departures if reliable information indicates that the 
defendant's criminal history category substantially underrepresents the 
seriousness of the defendant's criminal history.
    The Commission invites comment on whether the Commission should 
consider changing how the guidelines account for sentences resulting 
from tribal court convictions for purposes of determining criminal 
history points pursuant to Chapter Four, Part A (Criminal History). 
Should the Commission consider amending Sec.  4A1.2(i) and, if so, how? 
For example, should the guidelines treat sentences resulting from 
tribal court convictions same as other sentences imposed for federal, 
state, and local offenses that may be used to compute criminal history 
points? Should the guidelines treat sentences resulting from tribal 
court convictions more akin to military sentences and distinguish 
between certain types of tribal courts? Is there a different approach 
the Commission should follow in addressing the use of tribal court 
convictions in the computation of criminal history scores?

(B) Court Protection Orders

Proposed Amendment
    The Commentary to Sec.  1B1.1 captioned ``Application Notes'' is 
amended in Note 1 by redesignating paragraphs (D) through (L) as 
paragraphs (E) through (M), respectively; and by inserting the 
following new paragraph (D):

[[Page 40656]]

    ``(D) `court protection order' means `protection order' as defined 
by 18 U.S.C. 2266(5) and consistent with 18 U.S.C. 2265(b).''.
Issue for Comment
    1. Part B of the proposed amendment would include in the Commentary 
to Sec.  1B1.1 (Application Instructions) a definition of court 
protection order derived from 18 U.S.C. 2266(5) and consistent with 18 
U.S.C. 2265(b). Is this definition appropriate? If not, what 
definition, if any, should the Commission provide?

3. First Offenders/Alternatives to Incarceration

    Synopsis of Proposed Amendment: The 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.

(A) First Offenders

    Part A of the proposed amendment is primarily informed by the 
Commission's multi-year study of recidivism, including the 
circumstances that correlate with increased or reduced recidivism. See 
U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 82 FR 39949 
(Aug. 22, 2017). It is also informed by the Commission's continued 
study of alternatives to incarceration. Id.
    Under the Guidelines Manual, offenders with minimal or no criminal 
history are classified into Criminal History Category I. ``First 
offenders,'' offenders with no criminal history, are addressed in the 
guidelines only by reference to Criminal History Category I. However, 
Criminal History Category I includes not only ``first'' offenders but 
also offenders with varying criminal histories, such as offenders with 
no criminal history points and those with one criminal history point. 
Accordingly, the following offenders are classified in the same 
category: (1) first time offenders with no prior convictions; (2) 
offenders who have prior convictions that are not counted because they 
were not within the time limits set forth in Sec.  4A1.2(d) and (e); 
(3) offenders who have prior convictions that are not used in computing 
the criminal history category for reasons other than their 
``staleness'' (e.g., sentences resulting from foreign or tribal court 
convictions, minor misdemeanor convictions or infractions); and (4) 
offenders with a prior conviction that received only one criminal 
history point.
    Part A sets forth a new Chapter Four guideline, at Sec.  4C1.1 
(First Offenders), that would provide lower guideline ranges for 
``first offenders'' generally and increase the availability of 
alternatives to incarceration for such offenders at the lower levels of 
the Sentencing Table (compared to otherwise similar offenders in 
Criminal History Category I). Recidivism data analyzed by the 
Commission indicate that ``first offenders'' generally pose the lowest 
risk of recidivism. See, e.g., U.S. Sentencing Comm'n, ``Recidivism 
Among Federal Offenders: A Comprehensive Overview,'' at 18 (2016), 
available at http://www.ussc.gov/research/research-publications/recidivism-among-federal-offenders-comprehensive-overview. In addition, 
28 U.S.C. 994(j) directs that alternatives to incarceration are 
generally appropriate for first offenders not convicted of a violent or 
otherwise serious offense. The new Chapter Four guideline, in 
conjunction with the revision to Sec.  5C1.1 (Imposition of a Term of 
Imprisonment) described below, would further implement the 
congressional directive at section 994(j).
    Part A of the proposed amendment provides two options for defining 
a ``first offender'' who would be eligible for a decrease in offense 
level under the new guideline. Option 1 defines a defendant as a 
``first offender'' if the defendant did not receive any criminal 
history points from Chapter Four, Part A. Option 2 defines a defendant 
as a ``first offender'' if the defendant has no prior convictions of 
any kind.
    Part A also provides two options for the decrease in offense level 
that would apply to a first offender. Option 1 provides a decrease of 
[1] level from the offense level determined under Chapters Two and 
Three. Option 2 provides a decrease of [2] levels if the final offense 
level determined under Chapters Two and Three is less than level [16], 
or a decrease of [1] level if the offense level determined under 
Chapters Two and Three is level [16] or greater.
    Part A also amends Sec.  5C1.1 (Imposition of a Term of 
Imprisonment) to add a new subsection (g) that provides that if (1) the 
defendant is determined to be a first offender under Sec.  4C1.1 (First 
Offender), (2) [the instant offense of conviction is not a crime of 
violence][the defendant did not use violence or credible threats of 
violence or possess a firearm or other dangerous weapon in connection 
with the offense], and (3) the guideline range applicable to that 
defendant is in Zone A or Zone B of the Sentencing Table, the court 
ordinarily should impose a sentence other than a sentence of 
imprisonment in accordance with the other sentencing options.
    Finally, Part A of the proposed amendment also provides issues for 
comment.

(B) Consolidation of Zones B and C in the Sentencing Table

    Part B of the proposed amendment is a result of the Commission's 
continued study of alternatives to incarceration. See U.S. Sentencing 
Comm'n, ``Notice of Final Priorities,'' 82 FR 39949 (Aug. 22, 2017).
    The Guidelines Manual defines and allocates sentencing options in 
Chapter Five (Determining the Sentence). This chapter sets forth 
``zones'' in the Sentencing Table based on the minimum months of 
imprisonment in each cell. The Sentencing Table sorts all sentencing 
ranges into four zones, labeled A through D. Each zone allows for 
different sentencing options, as follows:
    Zone A.--All sentence ranges within Zone A, regardless of the 
underlying offense level or criminal history category, are zero to six 
months. A sentencing court has the discretion to impose a sentence that 
is a fine-only, probation-only, probation with a confinement condition 
(home detention, community confinement, or intermittent confinement), a 
split sentence (term of imprisonment with term of supervised release 
with condition of confinement), or imprisonment. Zone A allows for 
probation without any conditions of confinement.
    Zone B.--Sentence ranges in Zone B are from one to 15 months of 
imprisonment. Zone B allows for a probation term to be substituted for 
imprisonment, contingent upon the probation term including conditions 
of confinement. Zone B allows for non-prison sentences, which 
technically result in sentencing ranges larger than six months, because 
the minimum term of imprisonment is one month and the maximum terms 
begin at seven months. To avoid sentencing ranges exceeding six months, 
the guidelines require that probationary sentences in Zone B include 
conditions of confinement. Zone B also allows for a term of 
imprisonment (of at least one month) followed by a term of supervised 
release with a condition of confinement (i.e., a ``split sentence'') or 
a term of imprisonment only.
    Zone C.--Sentences in Zone C range from 10 to 18 months of 
imprisonment. Zone C allows for split sentences, which must include a 
term of imprisonment equivalent to at least half of the minimum of the 
applicable guideline range. The remaining half of the term requires 
supervised release with a condition of community confinement or

[[Page 40657]]

home detention. Alternatively, the court has the option of imposing a 
term of imprisonment only.
    Zone D.--The final zone, Zone D, allows for imprisonment only, 
ranging from 15 months to life.
    Part B of the proposed amendment expands Zone B by consolidating 
Zones B and C. The expanded Zone B would include sentence ranges from 
one to 18 months and allow for the sentencing options described above. 
Although the proposed amendment would in fact delete Zone C by its 
consolidation with Zone B, Zone D would not be redesignated. Finally, 
Part B makes conforming changes to Sec. Sec.  5B1.1 (Imposition of a 
Term of Probation) and 5C1.1 (Imposition of a Term of Imprisonment).
    Part B also amends the Commentary to Sec.  5F1.2 (Home Detention) 
to remove the language instructing that (1) electronic monitoring 
``ordinarily should be used in connection with'' home detention; (2) 
alternative means of surveillance may be used ``so long as they are 
effective as electronic monitoring;'' and (3) ``surveillance necessary 
for effective use of home detention ordinarily requires'' electronic 
monitoring.
    Issues for comment are also provided.

(A) First Offenders

Proposed Amendment
    Chapter Four is amended by inserting at the end the following new 
Part C:
PART C--FIRST OFFENDER
Sec.  4C1.1. First Offender
[Definition of ``First Offender''
[Option 1:
    (a) A defendant is a first offender if the defendant did not 
receive any criminal history points from Chapter Four, Part A.]
[Option 2:
    (a) A defendant is a first offender if the defendant has no prior 
convictions of any kind.]]
[Decrease in Offense Level for First Offenders
[Option 1:
    (b) If the defendant is determined to be a first offender under 
subsection (a), decrease the offense level determined under Chapters 
Two and Three by [1] level.]
[Option 2:
    (b) If the defendant is determined to be a first offender under 
subsection (a), decrease the offense level as follows:
    (1) if the offense level determined under Chapters Two and Three is 
less than level [16], decrease by [2] levels; or
    (2) if the offense level determined under Chapters Two and Three is 
level [16] or greater, decrease by [1] level.]]
Commentary
Application Note:
    1. Cases Involving Mandatory Minimum Penalties.--If the case 
involves a statutorily required minimum sentence of at least five years 
and the defendant meets the criteria set forth in subsection (a) of 
Sec.  5C1.2 (Limitation on Applicability of Statutory Minimum Sentences 
in Certain Cases), the offense level determined under this section 
shall be not less than level 17. See Sec.  5C1.2(b).''.
    Section 5C1.1 is amended by inserting at the end the following new 
subsection (g):
    ``(g) In cases in which (1) the defendant is determined to be a 
first offender under Sec.  4C1.1 (First Offender), (2) [the instant 
offense of conviction is not a crime of violence][the defendant did not 
use violence or credible threats of violence or possess a firearm or 
other dangerous weapon in connection with the offense], and (3) the 
guideline range applicable to that defendant is in Zone A or B of the 
Sentencing Table, the court ordinarily should impose a sentence other 
than a sentence of imprisonment in accordance with the other sentencing 
options set forth in this guideline.''.
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended by inserting at the end the following new Note 10:
    ``10. Application of Subsection (g).--
    (A) Sentence of Probation Prohibited.--The court may not impose a 
sentence of probation pursuant to this provision if prohibited by 
statute. See Sec.  5B1.1 (Imposition of a Term of Probation).
    [(B) Definition of `Crime of Violence'.--For purposes of subsection 
(g), `crime of violence' has the meaning given that term in Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1).
    (C) Sentence of Imprisonment for First Offenders.--A sentence of 
imprisonment may be appropriate in cases in which the defendant used 
violence or credible threats of violence or possessed a firearm or 
other dangerous weapon in connection with the offense].''.
Issues for Comment
    1. Part A of the proposed amendment provides two options for how to 
define ``first offender'' for purposes of applying the new Sec.  4C1.1 
(First Offender). Option 1 defines a defendant as a ``first offender'' 
if the defendant did not receive any criminal history points from 
Chapter Four, Part A. Option 2 defines a defendant as a ``first 
offender'' if the defendant has no prior convictions of any kind. The 
Commission seeks comment on the proposed definition. Should the 
Commission adopt a broader definition than either Option 1 or Option 2? 
Should the Commission adopt a narrower definition than either option? 
Should the Commission adopt a definition that is narrower than Option 1 
but broader than Option 2? For example, should the Commission define 
``first offender'' as a defendant who did not receive any criminal 
history points from Chapter Four, Part A and has no prior felony 
convictions? Should the Commission instead define ``first offender'' as 
a defendant who either has no prior convictions of any kind or has only 
prior convictions that are not counted under Sec.  4A1.2 for a reason 
other than being too remote in time? Should the Commission provide 
additional or different guidance for determining whether a defendant 
is, or is not, a first offender?
    2. Part A of the proposed amendment provides two options for the 
decrease in offense level that would apply to a first offender. One of 
the options, Option 1, would provide that if the defendant is 
determined to be a first offender (as defined in the new guideline) a 
decrease of [1] level from the offense level determined under Chapters 
Two and Three would apply. Should the Commission limit the 
applicability of the adjustment to defendants with an offense level 
determined under Chapters Two and Three that is less than a certain 
number of levels? For example, should the Commission provide that if 
the offense level determined under Chapters Two and Three is less than 
level [16], the offense level shall be decreased by [1] level? What 
other limitations or requirements, if any, should the Commission 
provide for such an adjustment?
    3. Part A of the proposed amendment would amend Sec.  5C1.1 
(Imposition of a Term of Imprisonment) to provide that if the defendant 
is determined to be a first offender under the new Sec.  4C1.1 (First 
Offender), [the defendant's instant offense of conviction is not a 
crime of violence][the defendant did not use violence or credible 
threats of violence or possess a firearm or other dangerous weapon in 
connection with the offense], and the guideline range applicable to 
that defendant is in Zone A or Zone B of the Sentencing Table, the 
court ordinarily should impose a sentence

[[Page 40658]]

other than a sentence of imprisonment in accordance with the other 
sentencing options. Should the Commission further limit the application 
of such a rebuttable ``presumption'' and exclude certain categories of 
non-violent offenses? If so, what offenses should be excluded from the 
presumption of a non-incarceration sentence? For example, should the 
Commission exclude public corruption, tax, and other white-collar 
offenses?
    4. If the Commission were to promulgate Part A of the proposed 
amendment, what conforming changes, if any, should the Commission make 
to other provisions of the Guidelines Manual?

(B) Consolidation of Zones B and C in the Sentencing Table

Proposed Amendment
    Chapter Five, Part A is amended in the Sentencing Table by striking 
``Zone C''; by redesignating Zone B to contain all guideline ranges 
having a minimum of at least one month but not more than twelve months; 
and by inserting below ``Zone B'' the following: ``[Zone C Deleted]''.
    The Commentary to the Sentencing Table is amended by inserting at 
the end the following:
    ``Background: The Sentencing Table previously provided four 
`zones,' labeled A through D, based on the minimum months of 
imprisonment in each cell. The Commission expanded Zone B by 
consolidating former Zones B and C. Zone B in the Sentencing Table now 
contains all guideline ranges having a minimum term of imprisonment of 
at least one but not more than twelve months. Although Zone C was 
deleted by its consolidation with Zone B, the Commission decided not to 
redesignate Zone D as Zone C, to avoid unnecessary confusion that may 
result from different meanings of `Zone C' and `Zone D' through 
different editions of the Guidelines Manual.''.
    The Commentary to Sec.  5B1.1 captioned ``Application Notes'' is 
amended in Note 1(B), in the heading, by striking ``nine months'' and 
inserting ``twelve months''; and in Note 2 by striking ``Zone C or D'' 
and inserting ``Zone D'', and by striking ``ten months'' and inserting 
``fifteen months''.
    Section 5C1.1 is amended--
    in subsection (c) by striking ``subsection (e)'' both places such 
term appears and inserting ``subsection (d)'';
    by striking subsection (d) as follows:
    ``(d) If the applicable guideline range is in Zone C of the 
Sentencing Table, the minimum term may be satisfied by--
    (1) a sentence of imprisonment; or
    (2) a sentence of imprisonment that includes a term of supervised 
release with a condition that substitutes community confinement or home 
detention according to the schedule in subsection (e), provided that at 
least one-half of the minimum term is satisfied by imprisonment.'';
    and by redesignating subsections (e) and (f) as subsections (d) and 
(e), respectively.
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended--
    in Note 3 by striking ``nine months'' and inserting ``twelve 
months'';
    by striking Note 4 as follows:
    ``4. Subsection (d) provides that where the applicable guideline 
range is in Zone C of the Sentencing Table (i.e., the minimum term 
specified in the applicable guideline range is ten or twelve months), 
the court has two options:
    (A) It may impose a sentence of imprisonment.
    (B) Or, it may impose a sentence of imprisonment that includes a 
term of supervised release with a condition requiring community 
confinement or home detention. In such case, at least one-half of the 
minimum term specified in the guideline range must be satisfied by 
imprisonment, and the remainder of the minimum term specified in the 
guideline range must be satisfied by community confinement or home 
detention. For example, where the guideline range is 10-16 months, a 
sentence of five months imprisonment followed by a term of supervised 
release with a condition requiring five months community confinement or 
home detention would satisfy the minimum term of imprisonment required 
by the guideline range.
    The preceding example illustrates a sentence that satisfies the 
minimum term of imprisonment required by the guideline range. The 
court, of course, may impose a sentence at a higher point within the 
guideline range. For example, where the guideline range is 10-16 
months, both a sentence of five months imprisonment followed by a term 
of supervised release with a condition requiring six months of 
community confinement or home detention (under subsection (d)), and a 
sentence of ten months imprisonment followed by a term of supervised 
release with a condition requiring four months of community confinement 
or home detention (also under subsection (d)) would be within the 
guideline range.'';
    by striking Note 6 as follows:
    ``6. There may be cases in which a departure from the sentencing 
options authorized for Zone C of the Sentencing Table (under which at 
least half the minimum term must be satisfied by imprisonment) to the 
sentencing options authorized for Zone B of the Sentencing Table (under 
which all or most of the minimum term may be satisfied by intermittent 
confinement, community confinement, or home detention instead of 
imprisonment) is appropriate to accomplish a specific treatment 
purpose. Such a departure should be considered only in cases where the 
court finds that (A) the defendant is an abuser of narcotics, other 
controlled substances, or alcohol, or suffers from a significant mental 
illness, and (B) the defendant's criminality is related to the 
treatment problem to be addressed.
    In determining whether such a departure is appropriate, the court 
should consider, among other things, (1) the likelihood that completion 
of the treatment program will successfully address the treatment 
problem, thereby reducing the risk to the public from further crimes of 
the defendant, and (2) whether imposition of less imprisonment than 
required by Zone C will increase the risk to the public from further 
crimes of the defendant.
    Examples: The following examples both assume the applicable 
guideline range is 12-18 months and the court departs in accordance 
with this application note. Under Zone C rules, the defendant must be 
sentenced to at least six months imprisonment. (1) The defendant is a 
nonviolent drug offender in Criminal History Category I and probation 
is not prohibited by statute. The court departs downward to impose a 
sentence of probation, with twelve months of intermittent confinement, 
community confinement, or home detention and participation in a 
substance abuse treatment program as conditions of probation. (2) The 
defendant is convicted of a Class A or B felony, so probation is 
prohibited by statute (see Sec.  5B1.1(b)). The court departs downward 
to impose a sentence of one month imprisonment, with eleven months in 
community confinement or home detention and participation in a 
substance abuse treatment program as conditions of supervised 
release.'';
    by redesignating Notes 5, 7, 8, and 9 as Notes 4, 5, 6, and 7, 
respectively;
    in Note 4 (as so redesignated) by striking ``Subsection (e)'' and 
inserting ``Subsection (d)'';
    in Note 5 (as so redesignated) by striking ``subsections (c) and 
(d)'' and inserting ``subsection (c)'';
    and in Note 7 (as so redesignated) by striking ``Subsection (f)'' 
and inserting ``Subsection (e)'', and by striking ``subsection (e)'' 
and inserting ``subsection (d)''.

[[Page 40659]]

    The Commentary to Sec.  5F1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Electronic monitoring is an appropriate 
means of surveillance and ordinarily should be used in connection with 
home detention'' and inserting ``Electronic monitoring is an 
appropriate means of surveillance for home detention''; and by striking 
``may be used so long as they are as effective as electronic 
monitoring'' and inserting ``may be used if appropriate''.
    The Commentary to Sec.  5F1.2 captioned ``Background'' is amended 
by striking ``The Commission has concluded that the surveillance 
necessary for effective use of home detention ordinarily requires 
electronic monitoring'' and inserting ``The Commission has concluded 
that electronic monitoring is an appropriate means of surveillance for 
home detention''; and by striking ``the court should be confident that 
an alternative form of surveillance will be equally effective'' and 
inserting ``the court should be confident that an alternative form of 
surveillance is appropriate considering the facts and circumstances of 
the defendant's case''.
Issues for Comment
    1. The Commission requests comment on whether the zone changes 
contemplated by Part B of the proposed amendment should apply to all 
offenses, or only to certain categories of offenses. The zone changes 
would increase the number of offenders who are eligible under the 
guidelines to receive a non-incarceration sentence. Should the 
Commission provide a mechanism to exempt certain offenses from these 
zone changes? For example, should the Commission provide a mechanism to 
exempt public corruption, tax, and other white-collar offenses from 
these zone changes (e.g., to reflect a view that it would not be 
appropriate to increase the number of public corruption, tax, and other 
white-collar offenders who are eligible to receive a non-incarceration 
sentence)? If so, what mechanism should the Commission provide, and 
what offenses should be covered by it?
    2. The proposed amendment would consolidate Zones B and C to create 
an expanded Zone B. Such an adjustment would provide probation with 
conditions of confinement as a sentencing option for current Zone C 
defendants, an option that was not available to such defendants before. 
The Commission seeks comment on whether the Commission should provide 
additional guidance to address these new Zone B defendants. If so, what 
guidance should the Commission provide?

4. Acceptance of Responsibility

    Synopsis of Proposed Amendment: This proposed amendment is the 
result of the Commission's consideration of miscellaneous guideline 
application issues, including whether a defendant's denial of relevant 
conduct should be considered in determining whether the defendant has 
accepted responsibility for purposes of Sec.  3E1.1. See U.S. 
Sentencing Comm'n, ``Notice of Final Priorities,'' 82 FR 39949 (Aug. 
22, 2017).
    Section 3E1.1 (Acceptance of Responsibility) provides for a 2-level 
reduction for a defendant who clearly demonstrates acceptance of 
responsibility. Application Note 1(A) of Sec.  3E1.1 provides as one of 
the appropriate considerations in determining whether a defendant 
``clearly demonstrate[d] acceptance of responsibility'' the following:

truthfully admitting the conduct comprising the offense(s) of 
conviction, and truthfully admitting or not falsely denying any 
additional relevant conduct for which the defendant is accountable 
under Sec.  1B1.3 (Relevant Conduct). Note that a defendant is not 
required to volunteer, or affirmatively admit, relevant conduct 
beyond the offense of conviction in order to obtain a reduction 
under subsection (a). A defendant may remain silent in respect to 
relevant conduct beyond the offense of conviction without affecting 
his ability to obtain a reduction under this subsection. However, a 
defendant who falsely denies, or frivolously contests, relevant 
conduct that the court determines to be true has acted in a manner 
inconsistent with acceptance of responsibility;

    In addition, Application Note 3 provides further guidance on 
evidence that might demonstrate acceptance of responsibility, as 
follows:

    Entry of a plea of guilty prior to the commencement of trial 
combined with truthfully admitting the conduct comprising the 
offense of conviction, and truthfully admitting or not falsely 
denying any additional relevant conduct for which he is accountable 
under Sec.  1B1.3 (Relevant Conduct) (see Application Note 1(A)), 
will constitute significant evidence of acceptance of responsibility 
for the purposes of subsection (a). However, this evidence may be 
outweighed by conduct of the defendant that is inconsistent with 
such acceptance of responsibility. A defendant who enters a guilty 
plea is not entitled to an adjustment under this section as a matter 
of right.

    The Commission has heard concerns that the Commentary to Sec.  
3E1.1 (particularly the provisions cited above) encourages courts to 
deny a reduction in sentence when a defendant pleads guilty and accepts 
responsibility for the offense of conviction, but unsuccessfully 
challenges the presentence report's assessments of relevant conduct. 
These commenters suggest this has a chilling effect because defendants 
are concerned such objections may jeopardize their eligibility for a 
reduction for acceptance of responsibility.
    The proposed amendment amends the Commentary to Sec.  3E1.1 to 
revise how a defendant's challenge to relevant conduct should be 
considered in determining whether the defendant has accepted 
responsibility for purposes of the guideline. Specifically, the 
proposed amendment would revise Application Note 1(A) by substituting a 
new sentence for the sentence that states ``a defendant who falsely 
denies, or frivolously contests, relevant conduct that the court 
determines to be true has acted in a manner inconsistent with 
acceptance of responsibility.'' The proposed amendment includes two 
options for the substitute.
    Option 1 would provide that ``a defendant may make a non-frivolous 
challenge to relevant conduct without affecting his ability to obtain a 
reduction.''
    Option 2 would provide that ``a defendant may make a challenge to 
relevant conduct without affecting his ability to obtain a reduction, 
unless the challenge lacks an arguable basis either in law or in 
fact.''
    An issue for comment is also provided.
Proposed Amendment
    The Commentary to Sec.  3E1.1 captioned ``Application Notes'' is 
amended in Note 1(A) by striking ``However, a defendant who falsely 
denies, or frivolously contests, relevant conduct that the court 
determines to be true has acted in a manner inconsistent with 
acceptance of responsibility'', and inserting the following:
[Option 1:
    ``In addition, a defendant may make a non-frivolous challenge to 
relevant conduct without affecting his ability to obtain a 
reduction''.]
[Option 2:
    ``In addition, a defendant may make a challenge to relevant conduct 
without affecting his ability to obtain a reduction, unless the 
challenge lacks an arguable basis either in law or in fact''.]
Issue for Comment
    1. The Commission seeks comment on whether the Commission should 
amend the Commentary to Sec.  3E1.1 (Acceptance of Responsibility) to 
change or clarify how a defendant's challenge to relevant conduct 
should be considered in determining whether a defendant has accepted 
responsibility for purposes of

[[Page 40660]]

Sec.  3E1.1. If so, what changes should the Commission make to Sec.  
3E1.1?
    One of the options included in the proposed amendment, Option 1, 
would provide that ``a defendant may make a non-frivolous challenge to 
relevant conduct without affecting his ability to obtain a reduction'' 
under Sec.  3E1.1(a). If the Commission were to adopt Option 1, what 
additional guidance, if any, should the Commission provide on the 
meaning of ``non-frivolous''? The second option included in the 
proposed amendment, Option 2, would provide that ``a defendant may make 
a challenge to relevant conduct without affecting his ability to obtain 
a reduction, unless the challenge lacks an arguable basis either in law 
or in fact.'' If the Commission were to adopt Option 2, should the 
Commission provide additional guidance on when a challenge ``lacks an 
arguable basis either in law or in fact''? For example, should the 
Commission state explicitly that the fact that a challenge is 
unsuccessful does not by itself establish that the challenge lacked an 
arguable basis either in law or in fact? If the Commission were to 
adopt either Option 1 or Option 2, should the challenges covered by the 
amendment include informal challenges to relevant conduct during the 
sentencing process, whether or not the issues challenged are 
determinative to the applicable guideline range? Should the Commission 
broaden the proposed provision to address other sentencing 
considerations, such as departures or variances? Should the Commission, 
instead of adopting either option in the proposed amendment, remove 
from Sec.  3E1.1 all references to relevant conduct for which the 
defendant is accountable under Sec.  1B1.3, and reference only the 
elements of the offense of conviction?

5. Miscellaneous

    Synopsis of Proposed Amendment: This proposed amendment responds to 
recently enacted legislation and miscellaneous guideline issues.
    The proposed amendment contains five parts (Parts A through E). The 
Commission is considering whether to promulgate any or all of these 
parts, as they are not mutually exclusive. They are as follows--
    Part A responds to the Transnational Drug Trafficking Act of 2015, 
Public Law 114-154 (May 16, 2016), by amending Sec.  2B5.3 (Criminal 
Infringement of Copyright or Trademark).
    Part B responds to the International Megan's Law to Prevent Child 
Exploitation and Other Sexual Crimes Through Advanced Notification of 
Traveling Sex Offenders Act, Public Law 114-119 (Feb. 8, 2016), by 
amending Sec.  2A3.5 (Failure to Register as a Sex Offender), Sec.  
2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender), 
and Appendix A (Statutory Index).
    Part C responds to the Frank R. Lautenberg Chemical Safety for the 
21st Century Act, Public Law 114-182 (June 22, 2016), by amending 
Appendix A (Statutory Index).
    Part D amends 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) to clarify how the use of a computer 
enhancement at subsection (b)(3) interacts with its correlating 
commentary.
    Part E responds to the Justice for All Reauthorization Act of 2016, 
Public Law 114-324 (Dec. 16, 2016), by amending Sec.  5D1.3 (Conditions 
of Supervised Release).

(A) Transnational Drug Trafficking Act of 2015

    Synopsis of Proposed Amendment: Part A of the proposed amendment 
responds to the Transnational Drug Trafficking Act of 2015, Public Law 
114-154 (May 16, 2016). The primary purpose of the Act is to enable the 
Department of Justice to target extraterritorial drug trafficking 
activity. Among other things, the Act clarified the mens rea 
requirement for offenses related to trafficking in counterfeit drugs, 
without changing the statutory penalties associated with such offenses. 
The Act amended 18 U.S.C. 2230 (Trafficking in Counterfeit Goods or 
Services), which prohibits trafficking in a range of goods and 
services, including counterfeit drugs. The amended statute is currently 
referenced in Appendix A (Statutory Index) of the Guidelines Manual to 
Sec.  2B5.3 (Criminal Infringement of Copyright or Trademark).
    In particular, the Act made changes relating to counterfeit drugs. 
First, the Act amended the penalty provision at section 2320, replacing 
the term ``counterfeit drug'' with the phrase ``drug that uses a 
counterfeit mark on or in connection with the drug.'' Second, the Act 
revised section 2320(f)(6) to define only the term ``drug'' instead of 
``counterfeit drug.'' The amended provision defines ``drug'' as ``a 
drug, as defined in section 201 of the Federal Food, Drug, and Cosmetic 
Act (21 U.S.C. 321).'' The Act did not amend the definition of 
``counterfeit mark'' contained in section 2230(f)(1), which provides 
that--

    the term ``counterfeit mark'' means--
    (A) a spurious mark--
    (i) that is used in connection with trafficking in any goods, 
services, labels, patches, stickers, wrappers, badges, emblems, 
medallions, charms, boxes, containers, cans, cases, hangtags, 
documentation, or packaging of any type or nature;
    (ii) that is identical with, or substantially indistinguishable 
from, a mark registered on the principal register in the United 
States Patent and Trademark Office and in use, whether or not the 
defendant knew such mark was so registered;
    (iii) that is applied to or used in connection with the goods or 
services for which the mark is registered with the United States 
Patent and Trademark Office, or is applied to or consists of a 
label, patch, sticker, wrapper, badge, emblem, medallion, charm, 
box, container, can, case, hangtag, documentation, or packaging of 
any type or nature that is designed, marketed, or otherwise intended 
to be used on or in connection with the goods or services for which 
the mark is registered in the United States Patent and Trademark 
Office; and
    (iv) the use of which is likely to cause confusion, to cause 
mistake, or to deceive; or
    (B) a spurious designation that is identical with, or 
substantially indistinguishable from, a designation as to which the 
remedies of the Lanham Act are made available by reason of section 
220506 of title 36 . . . .

    Part A of the proposed amendment amends Sec.  2B5.3(b)(5) to 
replace the term ``counterfeit drug'' with ``drug that uses a 
counterfeit mark on or in connection with the drug.'' The proposed 
amendment would also amend the Commentary to Sec.  2B5.3 to delete the 
``counterfeit drug'' definition and provide that ``drug'' and 
``counterfeit mark'' have the meaning given those terms in 18 U.S.C. 
2320(f).
Proposed Amendment
    Section 2B5.3(b)(5) is amended by striking ``counterfeit drug'' and 
inserting ``drug that uses a counterfeit mark on or in connection with 
the drug''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 1 by striking the third undesignated paragraph as 
follows:
    `` `Counterfeit drug' has the meaning given that term in 18 U.S.C. 
2320(f)(6).'',
    and by inserting after the paragraph that begins ```Counterfeit 
military good or service' has the meaning'' the following new 
paragraph:
    `` `Drug' and `counterfeit mark' have the meaning given those terms 
in 18 U.S.C. 2320(f).''.

[[Page 40661]]

(B) International Megan's Law To Prevent Child Exploitation and Other 
Sexual Crimes Through Advanced Notification of Traveling Sex Offenders

    Synopsis of Proposed Amendment: Part B of the proposed amendment 
responds to the International Megan's Law to Prevent Child Exploitation 
and Other Sexual Crimes Through Advanced Notification of Traveling Sex 
Offenders Act (``International Megan's Law''), Public Law 114-119 (Feb. 
8, 2016). The Act added a new notification requirement to 42 U.S.C. 
16914 (Information required in [sex offender] registration). Section 
16914 states that sex offenders who are required to register under the 
Sex Offender Registration and Notification Act (SORNA) must provide 
certain information for inclusion in the sex offender registry. Those 
provisions include the offender's name, Social Security number, address 
of all residences, name and address where the offender is an employee, 
the name and address where the offender is a student, license plate 
number and description of any vehicle. The International Megan's Law 
added as an additional requirement that the sex offender must provide 
``information relating to intended travel of the sex offender outside 
of the United States, including any anticipated dates and places of 
departure, arrival or return, carrier and flight numbers for air 
travel, destination country and address or other contact information 
therein, means and purpose of travel, and any other itinerary or other 
travel-related information required by the Attorney General.''
    The International Megan's Law also added a new criminal offense at 
18 U.S.C. 2250(b) (Failure to register). The new subsection (b) 
provides that whoever is required to register under SORNA who knowingly 
fails to provide the above described information required by SORNA 
relating to intended travel in foreign commerce and who engages or 
attempts to engage in the intended travel, is subject to a 10-year 
statutory maximum penalty. Section 2250 offenses are referenced in 
Appendix A (Statutory Index) to Sec.  2A3.5 (Failure to Register as a 
Sex Offender).
    Part B of the proposed amendment amends Appendix A (Statutory 
Index) so the new offenses at 18 U.S.C. 2250(b) are referenced to Sec.  
2A3.5. The proposed amendment also brackets the possibility of adding a 
new application note to the Commentary to Sec.  2A3.5 providing that 
for purposes of Sec.  2A3.5(b), a defendant shall be deemed to be in a 
``failure to register status'' during the period in which the defendant 
engaged in conduct described in 18 U.S.C. 2250(a) or (b).
    Finally, Part B makes clerical changes to Sec.  2A3.6 (Aggravated 
Offenses Relating to Registration as a Sex Offender) to reflect the 
redesignation of 18 U.S.C. 2250(c) by the International Megan's Law.
Proposed Amendment
    The Commentary to Sec.  2A3.5 captioned ``Statutory Provision'' is 
amended by striking ``Sec.  2250(a)'' and inserting ``Sec.  2250(a), 
(b)''.
    [The Commentary to Sec.  2A3.5 captioned ``Application Notes'' is 
amended by redesignating Note 2 as Note 3, and by inserting the 
following new Note 2:
    ``2. Application of Subsection (b)(1).--For purposes of subsection 
(b)(1), a defendant shall be deemed to be in a `failure to register 
status' during the period in which the defendant engaged in conduct 
described in 18 U.S.C. 2250(a) or (b).''.]
    Section 2A3.6(a) is amended by striking ``Sec.  2250(c)'' and 
inserting ``Sec.  2250(d)''.
    The Commentary to Sec.  2A3.6 captioned ``Statutory Provisions'' is 
amended by striking ``2250(c)'' and inserting ``2250(d)''.
    The Commentary to Sec.  2A3.6 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking ``Section 2250(c)'' and inserting ``Section 
2250(d)'', and by inserting after ``18 U.S.C. 2250(a)'' the following: 
``or (b)'';
    in Note 3 by striking ``Sec.  2250(c)'' and inserting ``Sec.  
2250(d)'';
    and in Note 4 by striking ``Sec.  2250(c)'' and inserting ``Sec.  
2250(d)''.
    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 2250(a) by striking ``Sec.  2250(a)'' and inserting ``Sec.  
2250(a), (b)''; and in the line referenced to 18 U.S.C. 2250(c) by 
striking ``Sec.  2250(c)'' and inserting ``Sec.  2250(d)''.

(C) Frank R. Lautenberg Chemical Safety for the 21st Century Act

    Synopsis of Proposed Amendment: Part C of the proposed amendment 
responds to the Frank R. Lautenberg Chemical Safety for the 21st 
Century Act, Public Law 114-182 (June 22, 2016). The Act, among other 
things, amended section 16 of the Toxic Substances Control Act (15 
U.S.C. 2615) to add a new subsection that provides that any person who 
knowingly and willfully violates certain provisions of the Toxic 
Substances Control Act and who knows at the time of the violation that 
the violation places an individual in imminent danger of death or 
bodily injury shall be subject to a fine up to $250,000, imprisonment 
of up to 15 years, or both.
    Part C of the proposed amendment amends Appendix A (Statutory 
Index) so that the new provision, 15 U.S.C. 2615(b)(2), is referenced 
to Sec.  2Q1.1 (Knowing Endangerment Resulting From Mishandling 
Hazardous or Toxic Substances, Pesticides or Other Pollutants), while 
maintaining the reference to Sec.  2Q1.2 (Mishandling of Hazardous or 
Toxic Substances or Pesticides; Recordkeeping, Tampering, and 
Falsification; Unlawfully Transporting Hazardous Materials in Commerce) 
for 15 U.S.C. 2615(b)(1).
Proposed Amendment
    Appendix A (Statutory Index) is amended--
    in the line referenced to 15 U.S.C. 2615 by striking ``Sec.  2615'' 
and inserting ``Sec.  2615(b)(1)'';
    and by inserting before the line referenced to 15 U.S.C. 6821 the 
following new line reference:

``15 U.S.C. 2615(b)(2) 2Q1.1''.

(D) Use of a Computer Enhancement in Sec.  2G1.3

    Synopsis of Proposed Amendment: Part D of the proposed amendment 
clarifies how the use of a computer enhancement at Sec.  2G1.3(b)(3) 
interacts with its corresponding commentary at Application Note 4. 
Section 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) applies to several offenses involving the 
transportation of a minor for illegal sexual activity. Subsection 
(b)(3) of Sec.  2G1.3 provides a 2-level enhancement if--

    the offense involved the use of a computer or an interactive 
computer service to (A) persuade, induce, entice, coerce, or 
facilitate the travel of, the minor to engage in prohibited sexual 
conduct; or (B) entice, encourage, offer, or solicit a person to 
engage in prohibited sexual conduct with the minor.

    Application Note 4 to Sec.  2G1.3 sets forth guidance on this 
enhancement providing as follows:

    Subsection (b)(3) is intended to apply only to the use of a 
computer or an interactive computer service to communicate directly 
with a minor or with a person who exercises custody, care, or 
supervisory control of the minor. Accordingly, the enhancement in 
subsection (b)(3) would not apply to the use of a computer or an 
interactive computer

[[Page 40662]]

service to obtain airline tickets for the minor from an airline's 
Internet site.

    An application issue has arisen as to whether Application Note 4, 
by failing to distinguish between the two prongs of subsection (b)(3), 
prohibits application of the enhancement where a computer was used to 
solicit a third party to engage in prohibited sexual conduct with a 
minor.
    Most courts to have addressed this issue have concluded that 
Application Note 4 is inconsistent with the language of Sec.  
2G1.3(b)(3), and have permitted the application of the enhancement for 
use of a computer in third party solicitation cases. See, e.g., United 
States v. Cramer, 777 F.3d 597, 606 (2d Cir. 2015) (``We conclude that 
Application Note 4 is plainly inconsistent with subsection (b)(3)(B) . 
. . . The plain language of subsection (b)(3)(B) is clear, and there is 
no indication that the drafters of the Guidelines intended to limit 
this plain language through Application Note 4.''); United States v. 
McMillian, 777 F.3d 444, 449-50 (7th Cir. 2015) (``[The defendant] 
points out that Application Note 4 states that `Subsection (b)(3) is 
intended to apply only to the use of a computer or an interactive 
computer service to communicate directly with a minor or with a person 
who exercises custody, care, or supervisory control of the minor.['] . 
. . . But the note is wrong. The guideline section provides a 2-level 
enhancement whenever the defendant uses a computer to `entice, 
encourage, offer, or solicit a person to engage in prohibited sexual 
conduct with the minor' . . . . When an application note clashes with 
the guideline, the guideline prevails.''); United States v. Hill, 783 
F.3d 842, 846 (11th Cir. 2015) (``Because the application note is 
inconsistent with the plain language of U.S.S.G. Sec.  2G1.3(b)(3)(B), 
the plain language of the guideline controls.''); United States v. 
Pringler, 765 F.3d 445, 455 (5th Cir. 2014) (``[W]e hold that the 
commentary in application note 4 is `inconsistent with' Guideline Sec.  
2G1.3(b)(3)(B), and we therefore follow the plain language of the 
Guideline alone.'').
    Part D of the proposed amendment would amend the Commentary to 
Sec.  2G1.3 to clarify that the guidance contained in Application Note 
4 refers only to subsection (b)(3)(A) and does not control the 
application of the enhancement for use of a computer in third party 
solicitation cases (as provided in subsection (b)(3)(B)).
Proposed Amendment
    The Commentary to Sec.  2G1.3 captioned ``Application Notes'' is 
amended in Note 4 by striking ``(b)(3)'' each place such term appears 
and inserting ``(b)(3)(A)''.

(E) Justice for All Reauthorization Act of 2016

    Synopsis of Proposed Amendment: Part E of the proposed amendment 
responds to the Justice for All Reauthorization Act of 2016, Public Law 
114-324 (Dec. 16, 2016). The Act made statutory changes to protect the 
rights of crime victims and to address the use of DNA and other 
forensic evidence. Among other things, the Act amended 18 U.S.C. 3583, 
the statute addressing supervised release. Section 3583(d) requires a 
court, when imposing a sentence of supervised release, to impose 
certain specified conditions of supervised release. The Act amended 
section 3583(d) to require the court to include, as one of those 
conditions, ``that the defendant make restitution in accordance with 
sections 3663 and 3663A [of Title 18, United States Code], or any other 
statute authorizing a sentence of restitution.''
    Part E of the proposed amendment amends the ``mandatory'' condition 
of supervised release set forth in subsection (a)(6)(A) of Sec.  5D1.3 
(Conditions of Supervised Release). It conforms Sec.  5D1.3(a)(6)(A) to 
section 3583(d) as amended by the Justice for All Reauthorization Act.
Proposed Amendment
    Section 5D1.3(a)(6)(A) is amended by striking ``18 U.S.C. 2248, 
2259, 2264, 2327, 3663, 3663A, and 3664'' and inserting ``18 U.S.C. 
3663 and 3663A, or any other statute authorizing a sentence of 
restitution''.

6. Marihuana Equivalency

    Synopsis of Proposed Amendment: This proposed amendment makes 
technical changes to Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) to replace the term ``marihuana 
equivalency'' which is used in the Drug Equivalency Tables when 
determining penalties for certain controlled substances.
    The Commentary to Sec.  2D1.1 sets forth a series of Drug 
Equivalency Tables. These tables provide a conversion factor termed 
``marihuana equivalency'' for certain controlled substances that is 
used to determine the offense level for cases in which the controlled 
substance involved in the offense is not specifically listed in the 
Drug Quantity Table, or where there is more than one controlled 
substance involved in the offense (whether or not listed in the Drug 
Quantity Table). See Sec.  2D1.1, comment. (n.8). The Drug Equivalency 
Tables are separated by drug type and schedule.
    In a case involving a controlled substance that is not specifically 
referenced in the Drug Quantity Table, the base offense level is 
determined by using the Drug Equivalency Tables to convert the quantity 
of the controlled substance involved in the offense to its marihuana 
equivalency, then finding the offense level in the Drug Quantity Table 
that corresponds to that quantity of marihuana. In a case involving 
more than one controlled substance, each of the drugs is converted into 
its marihuana equivalency, the converted quantities are added, and the 
aggregate quantity is used to find the offense level in the Drug 
Quantity Table.
    The Commission received comment expressing concern that the term 
``marihuana equivalency'' is misleading and results in confusion for 
individuals not fully versed in the guidelines. In particular, some 
commenters suggested that the Commission should replace ``marihuana 
equivalency'' with another term.
    The proposed amendment would amend Sec.  2D1.1 to replace 
``marihuana equivalency'' as the conversion factor for determining 
penalties for controlled substances that are not specifically 
referenced in the Drug Quantity Table or when combining differing 
controlled substances, with a new value termed ``converted drug 
weight.'' Specifically, the proposed amendment would add the new 
conversion factor to all provisions of the Drug Quantity Table at Sec.  
2D1.1(c). In addition, the proposed amendment would change the title of 
the ``Drug Equivalency Tables'' to ``Drug Conversion Tables,'' and 
revise the commentary to Sec.  2D1.1 to change all references to 
marihuana as a conversion factor and replace it with the new value.
    All changes set forth in the proposed amendment are not intended as 
a substantive change in policy for Sec.  2D1.1.
Proposed Amendment
    Section 2D1.1(c)(1) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    `` 90,000 KG or more of Converted Drug Weight.''.
    Section 2D1.1(c)(2) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    `` At least 30,000 KG but less than 90,000 KG of Converted 
Drug Weight.''.
    Section 2D1.1(c)(3) is amended by striking the period at the end of 
the line

[[Page 40663]]

referenced to Flunitrazepam and inserting a semicolon, and by adding at 
the end the following:
    `` At least 10,000 KG but less than 30,000 KG of Converted 
Drug Weight.''.
    Section 2D1.1(c)(4) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    `` At least 3,000 KG but less than 10,000 KG of Converted 
Drug Weight.''.
    Section 2D1.1(c)(5) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    `` At least 1,000 KG but less than 3,000 KG of Converted 
Drug Weight.''.
    Section 2D1.1(c)(6) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    `` At least 700 KG but less than 1,000 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(7) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    `` At least 400 KG but less than 700 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(8) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    `` At least 100 KG but less than 400 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(9) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    `` At least 80 KG but less than 100 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(10) is amended by striking the period at the end 
of the line referenced to Flunitrazepam and inserting a semicolon, and 
by adding at the end the following:
    `` At least 60 KG but less than 80 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(11) is amended by striking the period at the end 
of the line referenced to Flunitrazepam and inserting a semicolon, and 
by adding at the end the following:
    `` At least 40 KG but less than 60 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(12) is amended by striking the period at the end 
of the line referenced to Flunitrazepam and inserting a semicolon, and 
by adding at the end the following:
    `` At least 20 KG but less than 40 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(13) is amended by striking the period at the end 
of the line referenced to Flunitrazepam and inserting a semicolon, and 
by adding at the end the following:
    `` At least 10 KG but less than 20 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(14) is amended by striking the period at the end 
of the line referenced to Schedule IV substances (except Flunitrazepam) 
and inserting a semicolon, and by adding at the end the following:
    `` At least 5 KG but less than 10 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(15) is amended by striking the period at the end 
of the line referenced to Schedule IV substances (except Flunitrazepam) 
and inserting a semicolon, and by adding at the end the following:
    `` At least 2.5 KG but less than 5 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(16) is amended by striking the period at the end 
of the line referenced to Schedule V substances and inserting a 
semicolon, and by adding at the end the following:
    `` At least 1 KG but less than 2.5 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(17) is amended by striking the period at the end 
of the line referenced to Schedule V substances and inserting a 
semicolon, and by adding at the end the following:
    `` Less than 1 KG of Converted Drug Weight.''.
    The annotation to Sec.  2D1.1(c) captioned ``Notes to Drug Quantity 
Table'' is amended by inserting at the end the following new Note (J):
    ``(J) The term `Converted Drug Weight,' for purposes of this 
guideline, refers to a nominal reference designation that is to be used 
as a conversion factor in the Drug Conversion Tables set forth in the 
Commentary below, to determine the offense level for controlled 
substances that are not specifically referenced in the Drug Quantity 
Table or when combining differing controlled substances.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended--
    in Note 6 by striking ``marihuana equivalency'' and inserting 
``converted drug weight'' and by inserting after ``the most closely 
related controlled substance referenced in this guideline.'' the 
following: ``See Application Note 8.'';
    in the heading of Note 8 by striking ``Drug Equivalency'' and 
inserting ``Drug Conversion'';
    in Note 8(A) by striking ``Drug Equivalency Tables'' both places 
such term appears and inserting ``Drug Conversion Tables''; by striking 
``to convert the quantity of the controlled substance involved in the 
offense to its equivalent quantity of marihuana'' and inserting ``to 
find the converted drug weight of the controlled substance involved in 
the offense''; by striking ``Find the equivalent quantity of 
marihuana'' and inserting ``Find the corresponding converted drug 
weight''; by striking ``Use the offense level that corresponds to the 
equivalent quantity of marihuana'' and inserting ``Use the offense 
level that corresponds to the converted drug weight determined above''; 
by striking ``an equivalent quantity of 5 kilograms of marihuana'' and 
inserting ``5 kilogram of converted drug weight''; and by striking 
``the equivalent quantity of marihuana would be 500 kilograms'' and 
inserting ``the converted drug weight would be 500 kilograms'';
    in Note 8(B) by striking ``Drug Equivalency Tables'' each place 
such term appears and inserting ``Drug Conversion Tables''; by striking 
``convert each of the drugs to its marihuana equivalent'' and inserting 
``convert each of the drugs to its converted drug weight''; by striking 
``For certain types of controlled substances, the marihuana 
equivalencies'' and inserting ``For certain types of controlled 
substances, the converted drug weights assigned''; by striking ``e.g., 
the combined equivalent weight of all Schedule V controlled substances 
shall not exceed 2.49 kilograms of marihuana'' and inserting ``e.g., 
the combined converted weight of all Schedule V controlled substances 
shall not exceed 2.49 kilograms of converted drug weight''; by striking 
``determine the marihuana equivalency for each schedule separately'' 
and inserting ``determine the converted drug weight for each schedule 
separately''; and by striking ``Then add the marihuana equivalencies to 
determine the combined marihuana equivalency'' and inserting ``Then add 
the converted drug weights to determine the combined converted drug 
weight'';
    in Note 8(C)(i) by striking ``of marihuana'' each place such term 
appears and inserting ``of converted drug weight''; and by striking 
``The total is therefore equivalent to 95 kilograms'' and inserting 
``The total therefore converts to 95 kilograms'';
    in Note 8(C)(ii) by striking the following:
    ``The defendant is convicted of selling 500 grams of marihuana 
(Level 6) and 10,000 units of diazepam (Level 6). The diazepam, a 
Schedule IV drug, is equivalent to 625 grams of marihuana. The total, 
1.125 kilograms of marihuana, has an offense level of 8 in the Drug 
Quantity Table.'',
    and inserting the following:

[[Page 40664]]

    ``The defendant is convicted of selling 500 grams of marihuana 
(Level 6) and 10,000 units of diazepam (Level 6). The amount of 
marihuana converts to 500 grams of converted drug weight. The diazepam, 
a Schedule IV drug, converts to 625 grams of converted drug weight. The 
total, 1.125 kilograms of converted drug weight, has an offense level 
of 8 in the Drug Quantity Table.'';
    in Note 8(C)(iii) by striking ``is equivalent'' both places such 
term appears and inserting ``converts''; by striking ``of marihuana'' 
each place such term appears and inserting ``of converted drug 
weight''; and by striking ``The total is therefore equivalent'' and 
inserting ``The total therefore converts'';
    in Note 8(C)(iv) by striking ``marihuana equivalency'' each place 
such term appears and inserting ``converted drug weight''; by striking 
``76 kilograms of marihuana'' and inserting ``76 kilograms''; by 
striking ``79.99 kilograms of marihuana'' both places such term appears 
and inserting ``79.99 kilograms of converted drug weight''; by striking 
``equivalent weight'' each place such term appears and inserting 
``converted weight''; by striking ``9.99 kilograms of marihuana'' and 
inserting ``9.99 kilograms''; and by striking ``2.49 kilograms of 
marihuana'' and inserting ``2.49 kilograms'';
    and in Note 8(D)--
    in the heading, by striking ``Drug Equivalency'' and inserting 
``Drug Conversion'';
    under the heading relating to Schedule I or II Opiates, by striking 
the heading as follows:
    ``Schedule I or II Opiates*'',
    and inserting the following new heading:

``Schedule I or II Opiates*...............  Converted Drug Weight'';
 

    and by striking ``of marihuana'' each place such term appears;
    under the heading relating Cocaine and Other Schedule I and II 
Stimulants (and their immediate precursors), by striking the heading as 
follows:
    ``Cocaine and Other Schedule I and II Stimulants (and their 
immediate precursors)*'',
    and inserting the following new heading:

``Cocaine and Other Schedule I and II       Converted Drug Weight'';
 Stimulants (and their immediate
 precursors)*.
 

    and by striking ``of marihuana'' each place such term appears;
    under the heading relating to LSD, PCP, and Other Schedule I and II 
Hallucinogens (and their immediate precursors), by striking the heading 
as follows:
    ``LSD, PCP, and Other Schedule I and II Hallucinogens (and their 
immediate precursors)*'',
    and inserting the following new heading:

``LSD, PCP, and Other Schedule I and II     Converted Drug Weight'';
 Hallucinogens (and their immediate
 precursors)*.
 

    and by striking ``of marihuana'' each place such term appears;
    under the heading relating to Schedule I Marihuana, by striking the 
heading as follows:
    ``Schedule I Marihuana'',
    and inserting the following new heading:

``Schedule I Marihuana....................  Converted Drug Weight'';
 

    and by striking ``of marihuana'' each place such term appears;
    under the heading relating to Flunitrazepam, by striking the 
heading as follows:
    ``Flunitrazepam**'',
    and inserting the following new heading:

``Flunitrazepam**.........................  Converted Drug Weight'';
 

    and by striking ``of marihuana'';
    under the heading relating to Schedule I or II Depressants (except 
gamma-hydroxybutyric acid), by striking the heading as follows:
    ``Schedule I or II Depressants (except gamma-hydroxybutyric 
acid)'',
    and inserting the following new heading:

``Schedule I or II Depressants (except      Converted Drug Weight'';
 gamma-hydroxybutyric acid).
 

    and by striking ``of marihuana'';
    under the heading relating to Gamma-hydroxybutyric Acid, by 
striking the heading as follows:
    ``Gamma-hydroxybutyric Acid'',
    and inserting the following new heading:

``Gamma-hydroxybutyric Acid...............  Converted Drug Weight'';
 

    and by striking ``of marihuana'';
    under the heading relating to Schedule III Substances (except 
ketamine), by striking the heading as follows:
    ``Schedule III Substances (except ketamine)***'',
    and inserting the following new heading:

``Schedule III Substances (except           Converted Drug Weight'';
 ketamine)***.
 

    by striking ``1 gm of marihuana'' and inserting ``1 gm''; by 
striking ``equivalent weight'' and inserting ``converted weight''; and 
by striking ``79.99 kilograms of marihuana'' and inserting ``79.99 
kilograms of converted drug weight'';
    under the heading relating to Ketamine, by striking the heading as 
follows:
    ``Ketamine'',
    and inserting the following new heading:

``Ketamine................................  Converted Drug Weight'';
 

    and by striking ``of marihuana'';
    under the heading relating to Schedule IV Substances (except 
flunitrazepam), by striking the heading as follows:
    ``Schedule IV Substances (except flunitrazepam)*****'',
    and inserting the following new heading:

``Schedule IV Substances (except            Converted Drug Weight'';
 flunitrazepam) *****.
 

    by striking ``0.0625 gm of marihuana'' and inserting ``0.0625 gm''; 
by striking ``equivalent weight'' and inserting ``converted weight''; 
and by striking ``9.99 kilograms of marihuana'' and inserting ``9.99 
kilograms of converted drug weight'';
    under the heading relating to Schedule V Substances, by striking 
the heading as follows:
    ``Schedule V Substances******'',
    and inserting the following new heading:

``Schedule V Substances******.............  Converted Drug Weight'';
 

    by striking ``0.00625 gm of marihuana'' and inserting ``0.00625 
gm''; by striking ``equivalent weight'' and inserting ``converted 
weight''; and by striking ``2.49 kilograms of marihuana'' and inserting 
``2.49 kilograms of converted drug weight'';
    under the heading relating to List I Chemicals (relating to the 
manufacture of amphetamine or methamphetamine), by striking the heading 
as follows:
    ``List I Chemicals (relating to the manufacture of amphetamine or 
methamphetamine)*******'',
    and inserting the following new heading:

``List I Chemicals (relating to the         Converted Drug Weight'';
 manufacture of amphetamine or
 methamphetamine)*******.
 

    and by striking ``of marihuana'' each place such term appears;
    under the heading relating to Date Rape Drugs (except 
flunitrazepam, GHB,

[[Page 40665]]

or ketamine), by striking the heading as follows:
    ``Date Rape Drugs (except flunitrazepam, GHB, or ketamine)'',
    and inserting the following new heading:

``Date Rape Drugs (except flunitrazepam,    Converted Drug Weight'';
 GHB, or ketamine).
 

    and by striking ``marihuana'' each place such term appears;
    and in the text before the heading relating to Measurement 
Conversion Table, by striking ``To facilitate conversions to drug 
equivalencies'' and inserting ``To facilitate conversions to converted 
drug weights''.

7. Technical Amendment

    Synopsis of Amendment: This proposed amendment makes various 
technical changes to the Guidelines Manual.
    Part A of the proposed amendment makes certain clarifying changes 
to two guidelines. First, the proposed amendment amends Chapter One, 
Part A, Subpart 1(4)(b) (Departures) to provide an explanatory note 
addressing the fact that Sec.  5K2.19 (Post-Sentencing Rehabilitative 
Efforts) was deleted by Amendment 768, effective November 1, 2012. 
Second, the proposed amendment makes minor clarifying changes to 
Application Note 2(A) to Sec.  2B1.1 (Theft, Property Destruction, and 
Fraud), to make clear that, for purposes of subsection (a)(1)(A), an 
offense is ``referenced to this guideline'' if Sec.  2B1.1 is the 
applicable Chapter Two guideline specifically referenced in Appendix A 
(Statutory Index) for the offense of conviction.
    Part B of the proposed amendment makes technical changes in 
Sec. Sec.  2Q1.3 (Mishandling of Other Environmental Pollutants; 
Recordkeeping, Tampering, and Falsification), 2R1.1 (Bid-Rigging, 
Price-Fixing or Market-Allocation Agreements Among Competitors), 4A1.2 
(Definitions and Instructions for Computing Criminal History), and 
4B1.4 (Armed Career Criminal), to correct title references to Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category 
(Policy Statement)).
    Part C of the proposed amendment makes clerical changes to--
    (1) the Commentary to Sec.  1B1.13 (Reduction in Term of 
Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)), to 
correct a typographical error by inserting a missing word in 
Application Note 4;
    (2) subsection (d)(6) to Sec.  2D1.11 (Unlawfully Distributing, 
Importing, Exporting or Possessing a Listed Chemical; Attempt or 
Conspiracy), to correct a typographical error in the line referencing 
Pseudoephedrine;
    (3) subsection (e)(2) to Sec.  2D1.11 (Unlawfully Distributing, 
Importing, Exporting or Possessing a Listed Chemical; Attempt or 
Conspiracy), to correct a punctuation mark under the heading relating 
to List I Chemicals;
    (4) the Commentary to Sec.  2M2.1 (Destruction of, or Production of 
Defective, War Material, Premises, or Utilities) captioned ``Statutory 
Provisions,'' to add a missing section symbol and a reference to 
Appendix A (Statutory Index);
    (5) the Commentary to Sec.  2Q1.1 (Knowing Endangerment Resulting 
From Mishandling Hazardous or Toxic Substances, Pesticides or Other 
Pollutants) captioned ``Statutory Provisions,'' to add a missing 
reference to 42 U.S.C. 7413(c)(5) and a reference to Appendix A 
(Statutory Index);
    (6) the Commentary to Sec.  2Q1.2 (Mishandling of Hazardous or 
Toxic Substances or Pesticides; Recordkeeping, Tampering, and 
Falsification; Unlawfully Transporting Hazardous Materials in Commerce) 
captioned ``Statutory Provisions,'' to add a specific reference to 42 
U.S.C. 7413(c)(1)-(4);
    (7) the Commentary to Sec.  2Q1.3 (Mishandling of Other 
Environmental Pollutants; Recordkeeping, Tampering, and Falsification) 
captioned ``Statutory Provisions,'' to add a specific reference to 42 
U.S.C. 7413(c)(1)-(4);
    (8) subsection (a)(4) to Sec.  5D1.3. (Conditions of Supervised 
Release), to change an inaccurate reference to ``probation'' to 
``supervised release''; and
    (9) the lines referencing ``18 U.S.C. 371'' and ``18 U.S.C. 1591'' 
in Appendix A (Statutory Index), to rearrange the order of certain 
Chapter Two guidelines references to place them in proper numerical 
order.

(A) Clarifying Changes

Proposed Amendment
    Chapter One, Part A is amended--
    in Subpart 1(4)(b) (Departures) by inserting an asterisk after 
``Sec.  5K2.19 (Post-Sentencing Rehabilitative Efforts)'', and by 
inserting after the first paragraph the following new paragraph:
    ``*Note: Section 5K2.19 (Post-Sentencing Rehabilitative Efforts) 
was deleted by Amendment 768, effective November 1, 2012. (See USSG 
App. C, amendment 768.)'';
    and in the note at the end of Subpart 1(4)(d) (Probation and Split 
Sentences) by striking ``Supplement to Appendix C'' and inserting 
``USSG App. C''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 2(A)(i) by striking ``as determined under the 
provisions of Sec.  1B1.2 (Applicable Guidelines) for the offense of 
conviction'' and inserting the following: ``specifically referenced in 
Appendix A (Statutory Index) for the offense of conviction, as 
determined under the provisions of Sec.  1B1.2 (Applicable 
Guidelines)''.

(B) Title References to Sec.  4A1.3

Proposed Amendment
    The Commentary to Sec.  2Q1.3 captioned ``Application Notes'' is 
amended in Note 8 by striking ``Adequacy of Criminal History Category'' 
and inserting ``Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)''.
    The Commentary to Sec.  2R1.1 captioned ``Application Notes'' is 
amended in Note 7 by striking ``Adequacy of Criminal History Category'' 
and inserting ``Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)''.
    Section 4A1.2 is amended in subsections (h), (i), and (j) by 
striking ``Adequacy of Criminal History Category'' each place such term 
appears and inserting ``Departures Based on Inadequacy of Criminal 
History Category (Policy Statement)''.
    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended in Notes 6 and 8 by striking ``Adequacy of Criminal History 
Category'' both places such term appears and inserting ``Departures 
Based on Inadequacy of Criminal History Category (Policy Statement)''.
    The Commentary to Sec.  4B1.4 captioned ``Background'' is amended 
by striking ``Adequacy of Criminal History Category'' and inserting 
``Departures Based on Inadequacy of Criminal History Category (Policy 
Statement)''.

(C) Clerical Changes

Proposed Amendment
    The Commentary to Sec.  1B1.13 captioned ``Application Notes'' is 
amended in Note 4 by striking ``factors set forth 18 U.S.C. 3553(a)'' 
and inserting ``factors set forth in 18 U.S.C. 3553(a)''.
    Section 2D1.11 is amended--
    in subsection (d)(6) by striking ``Pseuodoephedrine'' and inserting 
``Pseudoephedrine'';
    and in subsection (e)(2), under the heading relating to List I 
Chemicals, by striking the period at the end and inserting a semicolon.
    The Commentary to Sec.  2M2.1 captioned ``Statutory Provisions'' is 
amended by striking ``Sec.  2153'' and inserting ``Sec. Sec.  2153'', 
and by inserting at

[[Page 40666]]

the end the following: ``For additional statutory provision(s), see 
Appendix A (Statutory Index).''.
    The Commentary to Sec.  2Q1.1 captioned ``Statutory Provisions'' is 
amended by striking ``42 U.S.C. 6928(e)'' and inserting ``42 U.S.C. 
6928(e), 7413(c)(5)'', and by inserting at the end the following: ``For 
additional statutory provision(s), see Appendix A (Statutory Index).''.
    The Commentary to Sec.  2Q1.2 captioned ``Statutory Provisions'' is 
amended by striking ``7413'' and inserting ``7413(c)(1)-(4)''.
    The Commentary to Sec.  2Q1.3 captioned ``Statutory Provisions'' is 
amended by striking ``7413'' and inserting ``7413(c)(1)-(4)''.
    Section 5D1.3(a)(4) is amended by striking ``release on probation'' 
and inserting ``release on supervised release''.
    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 371 by rearranging the guidelines to place them in proper 
numerical order; and in the line referencing 18 U.S.C. 1591 by 
rearranging the guidelines to place them in proper numerical order.

[FR Doc. 2017-18076 Filed 8-24-17; 8:45 am]
 BILLING CODE 2210-40-P