Sentencing Guidelines for United States Courts, 3525-3539 [2010-970]
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[FR Doc. 2010–1002 Filed 1–20–10; 8:45 am]
BILLING CODE 4811–45–P
UNITED STATES SENTENCING
COMMISSION
Sentencing Guidelines for United
States Courts
jlentini on DSKJ8SOYB1PROD with NOTICES
AGENCY: United States Sentencing
Commission.
ACTION: Notice of proposed amendments
to sentencing guidelines, policy
statements, and commentary. Request
for public comment, including public
comment regarding retroactive
application of any of the proposed
amendments. Notice of public hearing.
SUMMARY: Pursuant to section 994(a),
(o), and (p) of title 28, United States
Code, the United States Sentencing
Commission is considering
promulgating certain amendments to the
sentencing guidelines, policy
statements, and commentary. This
notice sets forth the proposed
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amendments and, for each proposed
amendment, a synopsis of the issues
addressed by that amendment. This
notice also sets forth a number of issues
for comment, some of which are set
forth together with the proposed
amendments; some of which are set
forth independent of any proposed
amendment; and one of which
(regarding retroactive application of
proposed amendments) is set forth in
the Supplementary Information portion
of this notice.
The proposed amendments and issues
for comment in this notice are as
follows: (1) A proposed amendment on
alternatives to incarceration, including a
proposed new guideline that would
provide authority under the guidelines
to impose an alternative to incarceration
for drug offenders who need treatment
for drug addiction and who meet certain
criteria, and proposed changes to the
Sentencing Table in Chapter Five that
would expand Zones B and C by one
level in each criminal history category,
and related issues for comment on
alternatives to incarceration; (2) issues
for comment on the extent to which
specific offender characteristics should
be considered at sentencing generally
and in the Guidelines Manual in
particular, including issues for comment
on age; mental and emotional condition;
physical condition; military service,
public service, and good works; and
lack of guidance as a youth, and issues
for comment on when, if at all, a
downward departure may be
appropriate based on the collateral
consequences of a defendant’s status as
a non-citizen, or based on cultural
assimilation; (3) a proposed amendment
to § 1B1.1 (Application Instructions) in
light of United States v. Booker, 543
U.S. 220 (2005); (4) a proposed
amendment on the computation of
criminal history points under
subsection (e) of § 4A1.1 (Criminal
History Category), known as the
‘‘recency’’ provision, including proposed
changes to § 4A1.1 to reduce the
cumulative impact of ‘‘recency’’, and
issues for comment on whether the
Commission should instead address the
cumulative impact of ‘‘recency’’ only for
one or more specific Chapter Two
offense guidelines; (5) a proposed
amendment in response to the Matthew
Shephard and James Byrd, Jr. Hate
Crime Prevention Act, division E of
Public Law 111–84, including proposed
changes to § 3A1.1 (Hate Crime
Motivation or Vulnerable Victim); (6) a
proposed amendment to Chapter Eight
of the Guidelines Manual regarding the
sentencing of organizations, including
proposed changes to § 8B2.1 (Effective
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Compliance and Ethics Program) and
§ 8D1.4 (Recommended Conditions of
Probation—Organizations), and a related
issue for comment; (7) a proposed
amendment in response to
miscellaneous issues arising from
legislation recently enacted and other
miscellaneous guideline application
issues, including proposed changes to
the guidelines’ treatment of offenses
involving commodities fraud,
paleontological resources, unauthorized
disclosures of personal information
regarding health insurance eligibility,
and iodine; and (8) a proposed
amendment in response to certain
technical issues that have arisen in the
guidelines.
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 March 22, 2010.
(2) Public Hearing.—The Commission
plans to hold a public hearing regarding
the proposed amendments and issues
for comment set forth in this notice.
Further information regarding the
public hearing, including requirements
for testifying and providing written
testimony, as well as the location, time,
and scope of the hearing, will be
provided by the Commission on its Web
site at https://www.ussc.gov.
ADDRESSES: Public comment should be
sent to: United States Sentencing
Commission, One Columbus Circle, NE.,
Suite 2–500, Washington, DC 20002–
8002, Attention: Public Affairs.
FOR FURTHER INFORMATION CONTACT:
Michael Courlander, Public Affairs
Officer, Telephone: (202) 502–4597.
SUPPLEMENTARY INFORMATION: The
United States Sentencing Commission is
an independent agency in the judicial
branch of the United States
Government. The Commission
promulgates sentencing guidelines and
policy statements for federal courts
pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews
and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o)
and submits guideline amendments to
the Congress not later than the first day
of May each year pursuant to 28 U.S.C.
994(p).
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 or commentary. Bracketed text
within a proposed amendment indicates
a heightened interest on the
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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.
The Commission also requests public
comment regarding whether the
Commission should specify for
retroactive application to previously
sentenced defendants any of the
proposed amendments published in this
notice. The Commission requests
comment regarding which, if any, of the
proposed amendments that may result
in a lower guideline range should be
made retroactive to previously
sentenced defendants pursuant to
§ 1B1.10 (Reduction in Term of
Imprisonment as a Result of Amended
Guideline Range).
Additional information pertaining to
the proposed amendments described in
this notice may be accessed through the
Commission’s Web site at https://
www.ussc.gov.
Authority: 28 U.S.C. 994(a), (o), (p), (x);
USSC Rules of Practice and Procedure, Rule
4.4.
jlentini on DSKJ8SOYB1PROD with NOTICES
William K. Sessions III,
Chair.
1. Alternatives to Incarceration
Synopsis of Proposed Amendment: In
September 2009, the Commission
indicated that one of its policy priorities
would be continued study of
alternatives to incarceration, including
consideration of any potential changes
to the zones incorporated in the
Sentencing Table in Chapter Five and/
or other changes to the guidelines that
might be appropriate in light of the
information obtained from that study.
See 74 FR 46478, 46479 (September 9,
2009). The Commission is publishing
this proposed amendment to inform the
Commission’s consideration of
alternatives to incarceration.
The proposed amendment contains
two parts (A and B). The Commission is
considering whether to promulgate
either or both of these parts, as they are
not necessarily mutually exclusive.
Part A expands the authority of the
court to impose an alternative to
incarceration for drug offenders who
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Proposed Amendment
sentence the defendant to a term of
probation without regard to the
applicable Zone of the Sentencing
Table, if the court finds that the
defendant meets the criteria set forth
below:
(1) The defendant committed the
offense while addicted to a controlled
substance[, and the controlled substance
addiction contributed substantially to
the commission of the offense];
(2) The defendant has demonstrated a
willingness to participate in a substance
abuse treatment program, and [will
likely benefit from such a
program][participation in such a
program will likely address the
defendant’s need for substance abuse
treatment];
(3) The total offense level for purposes
of the Sentencing Table in Chapter Five,
Part A, is not greater than [11]–[16];
(4) Each of the criteria set forth in
§ 5C1.2 (Limitation on Applicability of
Statutory Minimum Sentences in
Certain Cases).
(b) If the court imposes probation
under subsection (a), the court must
include a condition that requires the
defendant to participate in a
[residential] substance abuse treatment
program.’’.
Section 5B1.1(a) is amended in
paragraph (2) by striking the period at
the end and inserting ‘‘; or’’; and by
adding at the end the following:
‘‘(3) § 5C1.3 applies.’’.
The Commentary to § 5B1.1 captioned
‘‘Application Notes’’ is amended in Note
1 by adding at the end the following:
‘‘(c) Where § 5C1.3 applies. See
§ 5C1.3.’’;
And in Note 2 by inserting ‘‘, except
as provided in § 5C1.3’’ after
‘‘probation’’.
Section 5C1.1 is amended by adding
at the end the following:
‘‘(g) Notwithstanding subsections (a)–
(f), a sentence of imprisonment is not
required if § 5C1.3 applies.’’.
The Commentary to § 5C1.1 captioned
‘‘Application Notes’’ is amended by
adding at the end the following:
‘‘9. Subsection (g) provides that,
notwithstanding subsections (a) through
(f), a sentence of imprisonment is not
required if § 5C1.3 applies.’’.
Part A:
Part B:
Chapter Five, Part C is amended by
adding at the end the following new
guideline:
The Sentencing Table in Chapter Five,
Part A, is amended—
(1) By increasing Zone B by one level
in each of Criminal History Categories I
through VI (so that Zone B contains
offense levels 9–11 in Criminal History
Category I; 6–10 in Criminal History
Category II; 5–9 in Criminal History
Category III; 4–7 in Criminal History
Category IV; 3–6 in Criminal History
need treatment for drug addiction and
who meet certain criteria. This part does
so by creating a new guideline, § 5C1.3,
that provides the court with authority
under the guidelines to impose a
sentence of probation (with a
requirement that the offender
participate in a [residential] treatment
program) rather than a sentence of
imprisonment, without regard to the
applicable Zone of the Sentencing
Table. To use this authority, the court
must find that the drug offender has
demonstrated a willingness to
participate in a substance abuse
treatment program and [will likely
benefit from such a program][that
participation in such a program will
likely address the defendant’s need for
substance abuse treatment], and the
court must impose a condition of
probation that requires the defendant to
participate in a [residential] substance
abuse treatment program. To be eligible
for this alternative to incarceration, a
drug offender must have committed the
offense while addicted to a controlled
substance[, and the controlled substance
addiction must have contributed
substantially to the commission of the
offense]. Also, the drug offender’s total
offense level must be not greater than
[11]–[16]. Finally, the drug offender
must meet the ‘‘safety valve’’ criteria set
forth in § 5C1.2 (Limitation on
Applicability of Statutory Minimum
Sentences in Certain Cases).
Part A also makes conforming changes
to § 5B1.1 (Imposition of a Term of
Probation) and § 5C1.1 (Imposition of a
Term of Imprisonment).
Part B expands Zones B and C in the
Sentencing Table in Chapter Five.
Specifically, it expands Zone B by one
level in each of Criminal History
Categories I through VI (taking this area
from Zone C), and expands Zone C by
one level in each of Criminal History
Categories I through VI (taking this area
from Zone D). Part B also provides
guidance on the effectiveness of
residential treatment programs. Finally,
Part B makes conforming changes to
§§ 5B1.1 and 5C1.1.
Issues for comment are also included.
‘‘§ 5C1.3. Substance Abuse Treatment
Program as Alternative to Incarceration
for Certain Drug Offenders
(a) Subject to subsection (b), in the
case of an offense under 21 U.S.C. 841,
844, 846, 960, or 963, the court may
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Category V; and 2–5 in Criminal History
Category VI), and, correspondingly, by
removing each such offense level from
Zone C; and
(2) By increasing Zone C by one level
in each of Criminal History Categories I
through VI (so that Zone C contains
offense levels 12–13 in Criminal History
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Category I; 11–12 in Criminal History
Category II; 10–11 in Criminal History
Category III; 8–9 in Criminal History
Category IV; 7 in Criminal History
Category V; and 6 in Criminal History
Category VI).
For an illustration of the proposed
amendment to the Sentencing Table, as
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executed, see table. The existing
boundaries of Zones B and C are marked
with straight lines; the new proposed
lower boundary of Zone B is shaded;
and the new proposed lower boundary
of Zone C is marked with a wavy line.
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The Commentary to § 5B1.1 captioned
‘‘Application Notes’’ is amended in Note
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‘‘nine’’; and in Note 2 by striking ‘‘eight’’
and inserting ‘‘ten’’.
The Commentary to § 5C1.1 captioned
‘‘Application Notes’’ is amended in Note
3 by striking ‘‘six’’ after ‘‘not more than’’
and inserting ‘‘nine’’; and in Note 4 by
striking ‘‘eight, nine, or ten months’’ and
inserting ‘‘ten or twelve months’’; by
striking ‘‘8–14’’ both places it appears
and inserting ‘‘10–16’’; by striking
‘‘sentence of four’’ both places it appears
and inserting ‘‘sentence of five’’; and by
striking ‘‘five’’ after ‘‘and a sentence of’’
and inserting ‘‘ten’’; and by
redesignating Notes 6, 7, and 8 as Notes
7, 8, and 9, respectively; and by
inserting after Note 5 the following:
‘‘6. There may be cases in which
community confinement in a residential
treatment program is warranted to
accomplish a specific treatment
purpose. In such a case, the court
should consider the effectiveness of the
residential treatment program.
An effective program should possess,
at a minimum, the following features:
(A) The program is licensed, certified,
accredited, or otherwise approved by
the relevant state regulatory agency.
(B) The program is operated by
professionals who are well trained,
qualified, and experienced in the
evaluation and treatment of participants
and who follow established ethical and
professional standards.
(C) The evaluation and treatment of
participants is based on ‘‘the best
available scientific knowledge.’’; and in
Note 9 (as so redesignated) by striking
‘‘twelve’’ and inserting ‘‘15’’.
jlentini on DSKJ8SOYB1PROD with NOTICES
Issues for Comment
1. The Commission requests comment
on how Part A of the proposed
amendment should interact with other
provisions in the Guidelines Manual. In
particular, if the Commission were to
promulgate Part A, what other
amendments to Chapter Five of the
Guidelines Manual would be
appropriate?
For example, § 5H1.4 (Physical
Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling
Addiction) currently provides, among
other things, that physical condition ‘‘is
not ordinarily relevant in determining
whether a departure is warranted’’ and
that ‘‘drug or alcohol dependence or
abuse is not a reason for a downward
departure’’. If the Commission were to
promulgate Part A, what changes, if any,
should the Commission make to
§ 5H1.4?
2. The Commission requests comment
on whether defendants with a condition
other than drug addiction, such as a
mental or emotional condition, should
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be eligible for treatment programs as an
alternative to incarceration.
3. The Commission requests comment
on whether the proposed amendment
should include standards for effective
treatment programs. The Commission
has provided standards for other types
of programs; for example, § 8B2.1
(Effective Compliance and Ethics
Program)) provides minimum
requirements for corporate compliance
and ethics programs. Should the
Commission similarly provide standards
for effective treatment programs? If so,
what standards should the Commission
provide?
4. 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?
5. The Commission requests comment
on what revisions to Chapter Five, Part
B (Probation), and Chapter Five, Part F
(Sentencing Options), may be
appropriate to provide more guidance
on the use of alternatives to
incarceration.
As explained in the Introductory
Commentary to Chapter Five, Part B,
‘‘probation is a sentence in and of itself’’,
and may be used as an alternative to
incarceration, ‘‘provided that the terms
and conditions of probation can be
fashioned so as to meet fully the
statutory purposes of sentencing,
including respect for law, providing just
punishment for the offense, achieving
general deterrence, and protecting the
public from further crimes by the
defendant’’.
Are there changes the Commission
should make to the guidelines to guide
courts in fashioning sentences that meet
the statutory purposes of sentencing, see
18 U.S.C. 3553(a)(2), and to better
implement the requirements of 28
U.S.C. 994(j) (requiring the Commission
to ensure that ‘‘the guidelines reflect the
general appropriateness of imposing a
sentence other than imprisonment in
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cases in which the defendant is a first
offender who has not been convicted of
a crime of violence or an otherwise
serious offense’’)?
In particular, should the Commission
make changes to Chapter Five, Parts B
and F, to more broadly encourage the
use of alternatives to incarceration, such
as community confinement, home
detention, and intermittent confinement
(see §§ 5F1.1 (Community
Confinement), 5F1.2 (Home Detention),
and 5F1.8 (Intermittent Confinement))?
If so, what changes should the
Commission make?
Should the Commission make
changes to Chapter Five, Parts B and F,
to provide more guidance to the court in
deciding whether to impose an
alternative to incarceration in a
particular case and, if so, in deciding
what specific alternative to
incarceration should be imposed? For
example, what guidance should the
Commission provide with regard to how
the court should decide among
sentencing a particular defendant to
imprisonment, intermittent
confinement, community confinement,
or home detention?
2. Specific Offender Characteristics
Issues for Comment
1. In September 2009, the
Commission indicated that one of its
policy priorities would be a ‘‘review of
departures within the guidelines,
including (A) a review of the extent to
which pertinent statutory provisions
prohibit, discourage, or encourage
certain factors as forming the basis for
departure from the guideline sentence;
and (B) possible revisions to the
departure provisions in the Guidelines
Manual.’’ See 74 FR 46478, 46479
(September 9, 2009).
The Sentencing Reform Act (the
‘‘Act’’) contained several provisions
regarding the relevance of specific
offender characteristics to sentencing:
First, the Act directs the Commission
to consider whether eleven specific
offender characteristics, ‘‘among others’’,
have any relevance to the nature, extent,
place of service, or other incidents of an
appropriate sentence, and to take them
into account in the guidelines and
policy statements only to the extent that
they do have relevance. See 28 U.S.C.
994(d).
Second, the Act directs the
Commission to ensure that the
guidelines and policy statements, in
recommending a term of imprisonment
or length of a term of imprisonment,
reflect the ‘‘general inappropriateness’’
of considering five of those
characteristics—education; vocational
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skills; employment record; family ties
and responsibilities; and community
ties. See 28 U.S.C. 994(e).
Third, the Act directs the Commission
to ensure that the guidelines and policy
statements ‘‘are entirely neutral’’ as to
five other characteristics—race, sex,
national origin, creed, and
socioeconomic status. See 28 U.S.C.
994(d).
Fourth, the Act also directs the
sentencing court, in determining the
particular sentence to be imposed, to
consider, among other factors, ‘‘the
history and characteristics of the
defendant’’. See 18 U.S.C. 3553(a)(1).
As part of its review of departures, the
Commission is reviewing the relevance
of specific offender characteristics to
sentencing. The Commission
contemplates that work on this priority
will continue beyond the amendment
cycle ending May 1, 2010. During the
amendment cycle ending May 1, 2010,
the Commission is focusing on specific
offender characteristics addressed in
Chapter Five, Part H, of the Guidelines
Manual that are not listed in 28 U.S.C.
994(e).
The Commission requests comment
on the extent to which specific offender
characteristics should be considered at
sentencing generally and in the
Guidelines Manual in particular. The
Commission has received some public
comment suggesting that, in light of
United States v. Booker, 543 U.S. 220
(2005), the Commission amend the
Guidelines Manual to eliminate
provisions regarding specific offender
characteristics, which are addressed in
the Guidelines Manual primarily
through the policy statements in
Chapter Five, Part H. Eliminating
Chapter Five, Part H, however, would
contravene the mandates to the
Commission in the Act.
Are specific offender characteristics
already adequately addressed in the
Guidelines Manual? If not, how should
the Commission amend the Guidelines
Manual to more adequately address
specific offender characteristics?
2. The Commission requests comment
regarding five specific offender
characteristics in particular. Those
characteristics, and the statutes and
policy statements currently addressing
those characteristics, are as follows:
(1) Age (28 U.S.C. 994(d)(1)), see
§ 5H1.1 (Age).
(2) Mental and emotional condition to
the extent that such condition mitigates
the defendant’s culpability or to the
extent that such condition is otherwise
plainly relevant (28 U.S.C. 994(d)(4)),
see § 5H1.3 (Mental and Emotional
Conditions).
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(3) Physical condition, including drug
dependence (28 U.S.C. 994(d)(5)), see
§ 5H1.4 (Physical Condition, Including
Drug or Alcohol Dependence or Abuse;
Gambling Addiction).
(4) Military, civic, charitable, or
public service, employment-related
contributions, record of prior good
works, see § 5H1.11 (Military, Civic,
Charitable, or Public Service;
Employment-Related Contributions;
Record of Prior Good Works).
(5) Lack of guidance as a youth, see
§ 5H1.12 (Lack of Guidance as a Youth
and Similar Circumstances).
A. In General
Are the guidelines adequate as they
apply to these five specific offender
characteristics? If not, what
amendments to the guidelines should be
made to address these specific offender
characteristics?
B. Relevance to Decisions Regarding
Prison and Probation
For each of these five specific
offender characteristics, the
Commission requests comment
regarding whether, and to what extent,
the characteristic is relevant to
decisions regarding prison and
probation. In particular:
(1) Is the characteristic relevant in
making the ‘‘in/out’’ decision, i.e., the
decision whether to sentence the
defendant to prison or probation?
(2) Assuming the defendant is to be
sentenced to prison, is the characteristic
relevant in deciding the length of
imprisonment?
(3) Assuming the defendant is to be
sentenced to probation, is the
characteristic relevant in deciding the
length of probation, or the conditions of
probation?
For each of the decisions identified in
(1), (2), and (3) above, if the
characteristic is relevant in making the
decision, when is it relevant, why is it
relevant, what effect should it have, and
how much effect should it have? Are
there categories of offenses, or categories
of offenders, for which the characteristic
should be more relevant, or less
relevant? What criteria should be used
to establish such categories?
characteristic be used as a proxy for one
or more of the ‘‘forbidden’’ factors? If so,
how should the Commission address
that possibility, while at the same time
providing for consideration of the
characteristic when relevant?
3. The Commission also has separate
requests for comment for each of these
five specific offender characteristics.
The separate requests are as follows:
A. Age
Section 5H1.1 (Age) generally
provides that age (including youth) is
not ordinarily relevant in determining
whether a departure is warranted.
Should the Commission revise this
policy statement? If so, how?
For example, should an offender’s
youth be a reason to decrease the
sentence to reflect a view that younger
offenders are less accountable for their
actions, or a reason to increase the
sentence to reflect a view that younger
offenders are more likely to recidivate?
Should an offender’s advanced age be a
reason to increase the sentence to reflect
a view that older offenders should be
more mature and responsible, or a
reason to decrease the sentence to
reflect a view that older offenders are
less likely to recidivate?
B. Mental and Emotional Conditions
Section 5H1.3 (Mental and Emotional
Conditions) generally provides that
mental and emotional conditions are not
ordinarily relevant in determining
whether a departure is warranted.
Should the Commission revise this
policy statement? If so, how?
For example, should a mental or
emotional condition be a reason to
increase the sentence (e.g., if the mental
or emotional condition, such as an
antisocial personality disorder, makes
the defendant a particular danger to the
community)? On the other hand, should
a mental or emotional condition be a
reason to decrease the sentence (e.g., if
the mental or emotional condition could
more effectively be treated outside of
prison)?
In a case in which the defendant’s
mental or emotional condition was a
factor in the commission of the offense,
how should mental or emotional
C. Use as Proxy for Forbidden Factors
condition interact with the policy
As stated above, the Act specified that statements regarding diminished
capacity, see § 5K2.13 (Diminished
the guidelines and policy statements
must be ‘‘entirely neutral’’ as to race, sex, Capacity), and coercion and duress, see
§ 5K2.12 (Coercion and Duress)? In
national origin, creed, and
particular, in a case in which the
socioeconomic status; these
defendant’s mental or emotional
characteristics are known as the
condition was a factor in the
‘‘forbidden’’ factors. See 28 U.S.C.
commission of the offense, but does not
994(d).
meet the requirements of § 5K2.13 and
For each of these five specific
§ 5K2.12, when, if at all, should the
offender characteristics, could the
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mental or emotional condition be a
reason for a departure?
The Commission has heard testimony
that service members have been
returning from combat with traumatic
brain injuries that cause them to act out
violently toward family members and
others, or have been returning with
other mental or emotional conditions
(such as post-traumatic stress disorder).
If such a service member commits a
crime, when, and to what extent, would
a departure be warranted?
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C. Physical Condition (Including Drug
or Alcohol Dependence or Abuse;
Gambling Addiction)
Section 5H1.4 (Physical Condition,
Including Drug or Alcohol Dependence
or Abuse; Gambling Addiction)
generally provides that physical
condition or appearance, including
physique, is not ordinarily relevant in
determining whether a departure may
be warranted. Should the Commission
revise this policy statement? If so, how?
For example, should a physical
condition or addiction be a reason to
decrease the sentence (e.g., if the
physical condition or addiction could
more effectively be treated outside of
prison or if the physical condition
renders the offender so infirm that home
confinement may be sufficient)?
Conversely, should a physical condition
or addiction be a reason to increase the
sentence (e.g., if the addiction increases
the risk of recidivism)?
D. Military, Civic, Charitable, or Public
Service; Employment-Related
Contributions; Record of Prior Good
Works
Section 5H1.11 (Military, Civic,
Charitable, or Public Service;
Employment-Related Contributions;
Record of Prior Good Works) provides
that military, civic, charitable, or public
service; employment-related
contributions; and similar prior good
works are not ordinarily relevant in
determining whether a departure is
warranted. Should the Commission
revise this policy statement? If so, how?
For example, should military service
be a reason to decrease the sentence
(e.g., to reflect a view that an exemplary
military record reflects courage, loyalty,
and personal sacrifice that a sentencing
court should take into account)?
Conversely, should military service be a
reason to increase the sentence (e.g., to
reflect a view that the offender is a role
model who ‘‘should have known
better’’)?
Similarly, should civic or charitable
contributions be a reason to decrease the
sentence to reflect the view that credit
should be given for past good deeds or
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that past good deeds predict that the
defendant will continue to add value to
the community when not in prison? If
so, what level of contributions should
be demonstrated before a decrease in
sentence is warranted?
E. Lack of Guidance as a Youth and
Similar Circumstances
Section 5H1.12 (Lack of Guidance as
a Youth and Similar Circumstances)
provides that lack of guidance as a
youth and similar circumstances
indicating a disadvantaged upbringing
are not relevant grounds in determining
whether a departure is warranted.
Should the Commission revise this
policy statement? If so, how?
For example, should lack of guidance
as a youth not be a reason to decrease
the sentence (e.g., to reflect a view that
many or most offenders may be able to
demonstrate some lack of guidance or
disadvantaged upbringing)? Should
physical abuse, emotional abuse, or
sexual abuse suffered as a child be a
reason to decrease the sentence under
this policy statement or elsewhere in
Chapter Five, Part H?
3. The Commission requests comment
regarding what, if any, conforming
changes should be made to Chapter
Five, Part K, of the Guidelines Manual,
or elsewhere in the Guidelines Manual,
if the Commission were to amend the
policy statements applicable to the five
specific offender characteristics
discussed above.
4. The Commission requests comment
on when, if at all, the collateral
consequences of a defendant’s status as
a non-citizen may warrant a downward
departure. There are differences among
the circuits on this issue. Compare, e.g.,
United States v. Restrepo, 999 F.2d 640,
644 (2d Cir. 1993) (holding that none of
the following collateral consequences
are a basis for departure: (1) The fact
that an alien is not eligible to be
imprisoned in a lower-security facility
or to participate in certain prison
programs; (2) the fact that an alien will
face deportation upon release from
prison; and (3) the fact that an alien,
upon release from prison, will be civilly
detained until deportation), with United
States v. Smith, 27 F.3d 649, 655 (D.C.
Cir. 1994) (‘‘[A] downward departure
may be appropriate where the
defendant’s status as a deportable alien
is likely to cause a fortuitous increase in
the severity of his sentence.’’).
The circuits appear to be in
agreement, however, that the
defendant’s status as a non-citizen is
never a proper basis for departure when
the defendant is sentenced under the
illegal reentry guideline, § 2L1.2
(Unlawfully Entering or Remaining in
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the United States). See, e.g., United
States v. Martinez-Carillo, 250 F.3d
1101, 1107 (7th Cir. 2001); United States
v. Garay, 235 F.3d 230, 234 (5th Cir.
2000).
Should the Commission amend the
guidelines to address when, if at all, a
downward departure may be warranted
on the basis of such collateral
consequences? If so, how?
5. The Commission requests comment
on when, if at all, a downward
departure may be appropriate in an
illegal reentry case sentenced under
§ 2L1.2 on the basis of ‘‘cultural
assimilation’’, that is, the defendant’s
cultural ties to the United States.
Several circuits have held that such a
departure may be warranted. See, e.g.,
United States v. Lipman, 133 F.3d 726,
730 (9th Cir. 1998); United States v.
Rodriguez-Montelongo, 263 F.3d 429,
433 (5th Cir. 2001); United States v.
Sanchez-Valencia, 148 F.3d 1273, 1274
(11th Cir. 1998). Other circuits, such as
the First and Tenth Circuits, have
declined to rule on whether such a
departure may be warranted. See, e.g.,
United States v. Melendez-Torres, 420
F.3d 45, 51 (1st Cir. 2005); United States
v. Galarza-Payan, 441 F.3d 885, 889
(10th Cir. 2006).
Should the Commission amend the
guidelines to address when, if at all, a
downward departure may be warranted
in an illegal reentry case on the basis of
‘‘cultural assimilation’’? If so, how?
3. Application Instructions
Synopsis of Proposed Amendment:
This proposed amendment amends
§ 1B1.1 (Application Instructions) in
light of United States v. Booker, 543
U.S. 220 (2005).
As explained more fully in Chapter
One, Part A, Subpart 2 (Continuing
Evolution and Role of the Guidelines) of
the Guidelines Manual, a district court
is required to properly calculate and
consider the guidelines when
sentencing. See 18 U.S.C. 3553(a)(4);
Booker, 543 U.S. at 264 (‘‘The district
courts, while not bound to apply the
Guidelines, must * * * take them into
account when sentencing.’’); Rita v.
United States, 551 U.S. 338, 351 (2007)
(stating that a district court should begin
all sentencing proceedings by correctly
calculating the applicable Guidelines
range); Gall v. United States, 552 U.S.
38, 49 (2007) (‘‘As a matter of
administration and to secure nationwide
consistency, the Guidelines should be
the starting point and the initial
benchmark.’’).
After determining the guideline range,
the district court should refer to the
Guidelines Manual and consider
whether the case warrants a departure.
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‘‘ ‘Departure’ is a term of art under the
Guidelines and refers only to nonGuidelines sentences imposed under the
framework set out in the Guidelines.’’
See Irizarry v. United States, 128 S.Ct.
2198, 2202 (2008). A ‘‘variance’’—i.e., a
sentence outside the guideline range
other than as provided for in the
Guidelines Manual—is considered only
after departures have been considered.
As the Fifth Circuit has explained:
‘‘Post-Booker case law recognizes three
types of sentences under the new
advisory sentencing regime: (1) A
sentence within a properly calculated
Guideline range; (2) a sentence that
includes an upward or downward
departure as allowed by the Guidelines,
which sentence is also a Guideline
sentence; or (3) a non-Guideline
sentence which is either higher or lower
than the relevant Guideline sentence.’’
United States v. Tzep-Mejia, 462 F.3d
522 (5th Cir. 2006) (internal footnote
and citation omitted). On this point
most other circuits agree. See, e.g.,
United States v. Dixon, 449 F.3d 194,
203–4 (1st Cir. 2006) (court must
consider ‘‘any applicable departures’’);
United States v. Selioutsky, 409 F.3d
114 (2d Cir. 2005) (court must consider
‘‘available departure authority’’); United
States v. Jackson, 467 F.3d 834, 838 (3d
Cir. 2006) (same); United States v.
Morehead, 437 F.3d 424, 433 (4th Cir.
2006) (departures ‘‘remain an important
part of sentencing even after Booker’’);
United States v. McBride, 434 F.3d 470
(6th Cir. 2006) (same); United States v.
Hawk Wing, 433 F.3d 622, 631 (8th Cir.
2006) (‘‘the district court must decide if
a traditional departure is appropriate’’,
and after that must consider a variance);
United States v. Robertson, 568 F.3d
1203, 1210 (10th Cir. 2009) (district
courts must continue to apply
departures); United States v. Jordi, 418
F.3d 1212 (11th Cir. 2005) (stating that
‘‘the application of the guidelines is not
complete until the departures, if any,
that are warranted are appropriately
considered’’). But see United States v.
Johnson, 427 F.3d 423 (7th Cir. 2006)
(departures ‘‘obsolete’’).
In short, the district court, in
determining the appropriate sentence in
a particular case, must consider the
properly calculated guideline range, the
grounds for departure provided in the
policy statements, and then the factors
under 18 U.S.C. 3553(a). See Rita, 551
U.S. at 351. This has been described as
a ‘‘3-step process’’:
First, because the Booker decision requires
that courts consult the sentencing guidelines,
a sentencing court must calculate the
applicable guideline range in the customary
fashion. Second, the court should determine
whether a departure from the guideline range
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is consistent with the guidelines’ policy
statements and commentary. Third, the court
should evaluate whether a variance, i.e., a
sentence outside the advisory guideline range
is warranted under the authority of 18 U.S.C.
3553(a).
sentence’’; and by adding at the end the
following:
‘‘(M) ‘Variance’ means imposition of a
sentence other than as provided in the
guidelines, policy statements, and
commentary of the Guidelines Manual.’’.
See United States Sentencing
Commission, ‘‘Final Report on the
Impact of United States v. Booker on
Federal Sentencing’’ (2006) at 42.
The proposed amendment follows the
approach adopted by a majority of
circuits and structures § 1B1.1 to reflect
the three-step process. As amended,
subsection (a) addresses how to apply
the provisions in this manual to
properly determine the kinds of
sentence and the guideline range.
Subsection (b) addresses the need to
consider the policy statements and
commentary to determine whether a
departure is warranted. Subsection (c)
addresses the need to consider the
applicable factors under 18 U.S.C.
3553(a) in determining the appropriate
sentence. In addition, the proposed
amendment amends the Commentary to
§ 1B1.1 to define the term ‘‘variance’’.
4. Recency
Synopsis of Proposed Amendment: In
September 2009, the Commission
indicated that one of its policy priorities
would be consideration of
miscellaneous guideline application
issues, including ‘‘examination of, and
possible guideline amendments relating
to, the computation of criminal history
points under § 4A1.1(e)’’. See 74 FR
46478, 46479 (September 9, 2009).
Subsection (e) of § 4A1.1 (Criminal
History Category) is known as the
‘‘recency’’ provision. The Commission is
examining how the ‘‘recency’’ provision
interacts with the ‘‘status’’ provision in
subsection (d) of § 4A1.1 and also how
the ‘‘recency’’ provision interacts with
other provisions regarding criminal
history in various Chapter Two offense
guidelines.
Section 4A1.1 currently provides that
if the instant offense was committed
Proposed Amendment
while under another criminal justice
Section 1B1.1 is amended by striking
sentence, 2 criminal history points are
‘‘Except as specifically directed, the
added under subsection (d) for ‘‘status’’;
provisions of this manual are to be
if the instant offense was committed less
applied in the following order:’’ and
than two years after release from
inserting the following:
imprisonment, or while in
‘‘(a) The court shall determine the
imprisonment or escape status, 2 points
kinds of sentence and the guideline
are added under subsection (e) for
range as set forth in the guidelines (see
‘‘recency’’. If 2 points are added for
18 U.S.C. 3553(a)(4)) by applying the
‘‘status’’ under (d), however, only 1
provisions of this manual in the
point is added for ‘‘recency’’ under (e).
following order, except as specifically
See § 4A1.1 comment. (backg’d.)
directed:’’; by redesignating subdivisions (‘‘Because of the potential overlap of (d)
(a) through (h) as (1) through (8),
and (e), their combined impact is
respectively; in subdivision (4) (as so
limited to three points.’’).
redesignated) by striking ‘‘(a)’’ and
Under § 4A1.1, a sentence for a single
inserting ‘‘(1)’’, and by striking ‘‘(c)’’ and
prior conviction may count up to three
inserting ‘‘(3)’’;
times in the calculation of the Criminal
By redesignating subdivision (i) as
History Category (e.g., such a sentence
subsection (b) and, in that subsection,
could count under §§ 4A1.1(a) or (b),
by striking ‘‘Refer to’’ and inserting ‘‘The 4A1.1(d), and 4A1.1(e)). Additionally,
court shall then consider’’, and by
the prior conviction can increase the
adding at the end ‘‘See 18 U.S.C.
offense level determined under certain
3553(a)(5).’’; and
Chapter Two guidelines (e.g., § 2L1.2
By adding at the end the following:
(Unlawfully Entering or Remaining in
‘‘(c) The court shall then determine
the United States)). Therefore, in a case
the sentence (i.e., a sentence within the
in which the prior conviction increases
guideline range, a departure, or a
the Chapter Two offense level, the
variance), considering the applicable
single prior conviction may be counted
factors in 18 U.S.C. 3553(a) taken as a
four times in the determination of the
whole.’’.
applicable guideline range.
The Commentary to § 1B1.1 captioned
The proposed amendment presents
‘‘Application Notes’’ is amended in Note two options for amending § 4A1.1 that
1, in subparagraph (E)(i), by inserting
would reduce the cumulative impact of
‘‘as provided for in Parts H and K of
‘‘recency’’. Under Option 1, ‘‘recency’’
Chapter Five, Specific Offender
points are eliminated for all offenders in
Characteristics and Departures, or any
all cases; conforming changes to § 4A1.2
other policy statements or commentary
(Definitions and Instructions for
in the guidelines’’ after ‘‘guideline
Computing Criminal History) are also
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made. Under Option 2, ‘‘recency’’ points
are retained but are not cumulative with
‘‘status’’ points; thus, in the case of an
offender eligible for both ‘‘status’’ points
and ‘‘recency’’ points, the combined
impact is limited to 2 points rather than
3.
The proposed amendment also makes
stylistic changes to § 4A1.1 so that its
subdivisions are referred to as
‘‘subsections’’ rather than as ‘‘items’’.
Issues for comment are also provided
that, in part, request comment on
whether the Commission should instead
address the cumulative impact of
‘‘recency’’ more narrowly, i.e., only for
cases sentenced under Chapter Two
offense guidelines that increase the
offense level based on criminal history.
Proposed Amendment
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[Option 1:
Section 4A1.1 is amended by striking
‘‘items (a) through (f)’’ and inserting
‘‘subsections (a) through (e); in
subsection (c) by striking ‘‘item’’ and
inserting ‘‘subsection’’; by striking
subsection (e) and redesignating
subsection (f) as (e); and in subsection
(e) (as so redesignated) by striking
‘‘item’’ and inserting ‘‘subsection’’.
The Commentary to § 4A1.1 captioned
‘‘Application Notes’’ is amended by
striking ‘‘item’’ each place it appears and
inserting ‘‘subsection’’; by striking Note
5 and redesignating Note 6 as Note 5;
and in Note 5 (as so redesignated) by
striking ‘‘(f)’’ and inserting ‘‘(e)’’ each
place it appears.
The Commentary to § 4A1.1 captioned
‘‘Background’’ is amended by striking
‘‘Subdivisions’’ and inserting
‘‘Subsections’’; by striking ‘‘implements
one measure of recency by adding’’ and
inserting ‘‘adds’’; and by striking the
paragraph that begins ‘‘Section
4A1.1(e)’’.
Section 4A1.2 is amended in
subsection (a)(2) by striking ‘‘(f)’’ and
inserting ‘‘(e)’’; in subsection (k) by
striking subparagraph (A) and by
striking ‘‘(B)’’; in subsection (l) by
striking ‘‘(f)’’ and inserting ‘‘(e)’’, and by
striking ‘‘; § 4A1.1(e) shall not apply’’; in
subsection (n) by striking ‘‘and (e)’’; and
in subsection (p) by striking ‘‘(f)’’ and
inserting ‘‘(e)’’.
The Commentary to § 4A1.2 captioned
‘‘Application Notes’’ is amended in Note
12(A) by striking ‘‘subdivision’’ and
inserting ‘‘subsection’’.]
[Option 2:
Section 4A1.1(e) is amended by
striking ‘‘If 2 points are added for item
(d), add only 1 point for this item’’ and
inserting ‘‘If subsection (d) applies, do
not apply this subsection’’.
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The Commentary to § 4A1.1 captioned
‘‘Application Notes’’ is amended in Note
5 by striking ‘‘if two points are added
under § 4A1.1(d), only one point is
added under § 4A1.1(e)’’ and inserting
‘‘if § 4A1.1(d) applies, do not apply
§ 4A1.1(e)’’.
The Commentary to § 4A1.1 captioned
‘‘Background’’ is amended in the
paragraph that begins ‘‘Section 4A1.1(e)’’
by striking ‘‘three’’ and inserting ‘‘two’’;
and by striking the sentence that begins
‘‘However,’’.]
Issues for Comment
1. The Commission seeks comment on
whether the Commission should reduce
the cumulative impact of ‘‘recency’’
points in § 4A1.1(e), when they apply in
combination with ‘‘status’’ points in
§ 4A1.1(d) or in combination with
provisions regarding criminal history in
Chapter Two.
An example of such a provision is the
specific offense characteristic in
subsection (b)(1) of § 2L1.2 (Unlawfully
Entering or Remaining in the United
States), which provides an enhancement
of 4 to 16 levels if the defendant
previously was deported, or unlawfully
remained in the United States, after a
conviction for a certain type of offense.
Other examples can be found in the
alternative base offense levels in
§§ 2K2.1(a) and 2D1.1(a), which provide
a heightened base offense level if the
defendant had one or more prior
convictions for certain types of offenses;
the ‘‘pattern of activity’’ enhancement in
§ 2S1.3(b)(2), which provides an
enhancement based on a pattern of
criminal activity; and the enhancements
in §§ 2N2.1(b)(1) and 2K2.6(b)(1), which
provide an enhancement based on a past
conviction.
If the Commission were to retain
‘‘recency’’ in subsection (e) of § 4A1.1,
should the Commission amend the
guidelines to specify that, in a case in
which a conviction is used to increase
the Chapter Two offense level, ‘‘recency’’
points shall not apply?
A. Should the Commission Reduce the
Impact in Cases Sentenced Under
§ 2L1.2 Only?
With regard to the specific offense
characteristic in § 2L1.2(b)(1), should
the Commission insert an application
note in the commentary to § 4A1.1 and
a corresponding, parallel application
note in the commentary to § 2L1.2? One
approach for such an application note,
which would apply only if the Chapter
Two provision and the ‘‘recency’’
provision were both derived from the
same conviction, would be the
following:
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‘‘Interaction with § 2L1.2(b)(1).—If a
conviction is used as a basis for an
enhancement under § 2L1.2(b)(1), do not
use the sentence resulting from that
conviction as a basis for adding points
for ‘recency’ under subsection (e).’’
Another approach for such an
application note, which would apply
even if the Chapter Two provision and
the ‘‘recency’’ provision were derived
from different convictions, would be the
following:
‘‘Interaction with § 2L1.2(b)(1).—If
§ 2L1.2(b)(1) applies, do not apply
subsection (e).’’
Should the Commission follow one of
these approaches? Is there a different
approach the Commission should
follow?
B. Should the Commission Reduce the
Impact in Cases Under Other Specific
Guidelines?
Should such an application note also
be provided for a case in which (1) a
conviction is used as a basis for an
alternative base offense level, such as in
§§ 2K2.1(a) and 2D1.1(a); or (2) a
conviction is used as a basis for a
pattern of activity enhancement, such as
in § 2S1.3(b)(2); or (3) a conviction is
otherwise used as a basis for an
enhancement, such as in §§ 2N2.1(b)(1)
and 2K2.6(b)(1)? Are there other
provisions in Chapter Two for which
such an application note should be
provided?
5. Hate Crimes
Synopsis of Proposed Amendment:
This proposed amendment responds to
the Matthew Shepard and James Byrd,
Jr. Hate Crimes Prevention Act (division
E of Pub. L. 111–84) (the ‘‘Act’’). With
regard to hate crimes, the Act created a
new offense and amended a 1994
congressional directive to the
Commission. The Act also created a
second new offense, relating to attacking
a United States serviceman on account
of his or her service.
The new hate crimes offense, 18
U.S.C. 249 (Hate crime acts), makes it
unlawful, whether or not acting under
color of law, to willfully cause bodily
injury to any person or, through the use
of fire, a firearm, a dangerous weapon,
or an explosive or incendiary device,
attempt to cause bodily injury to any
person, because of the actual or
perceived race, color, religion, national
origin, gender, sexual orientation,
gender identity, or disability of any
person. A person who violates section
249 is subject to imprisonment for not
more than 10 years (or, if the offense
includes kidnapping, aggravated sexual
abuse, or an attempt to kill, or if death
results from the offense, for any term of
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years or for life). The proposed
amendment amends Appendix A
(Statutory Index) to reference the new
offense to § 2H1.1 (Offenses Involving
Individual Rights).
The Act also amended section 280003
of the Violent Crime Control and Law
Enforcement Act of 1994 (Pub. L. 103–
322; 28 U.S.C. 994 note), which contains
a congressional directive to the
Commission regarding hate crimes that
the Commission implemented in
subsection (a) of § 3A1.1 (Hate Crime
Motivation or Vulnerable Victim). The
Act expanded the definition of ‘‘hate
crime’’ in section 280003(a) to include
crimes motivated by actual or perceived
‘‘gender identity’’, which has the effect
of expanding the scope of the
congressional directive in section
280003(b) to require the Commission to
provide an enhancement for crimes
motivated by actual or perceived
‘‘gender identity’’. To reflect that
congressional action, the proposed
amendment amends § 3A1.1(a) to
include crimes motivated by actual or
perceived ‘‘gender identity’’, and makes
conforming changes to §§ 2H1.1 and
3A1.1.
In addition, the proposed amendment
contains a bracketed proposal to strike
the special instruction in § 3A1.1(c),
which states that the 3-level
enhancement in § 3A1.1(a) shall not
apply if the 6-level enhancement in
§ 2H1.1(b) applies. Currently, the 3-level
enhancement in § 3A1.1(a) applies if the
offense was a hate crime, i.e., was
motivated by the actual or perceived
race, color, religion, national origin,
ethnicity, gender, disability, or sexual
orientation of any person; the 6-level
enhancement in § 2H1.1(b) applies if (A)
the defendant was a public official at
the time of the offense, or (B) the offense
was committed under color of law. By
striking the special instruction in
§ 3A1.1(c), the proposed amendment
would allow both enhancements to
operate, if applicable in a particular
case. Conforming changes to §§ 2H1.1
and 3A1.1 are also bracketed.
The second new offense, 18 U.S.C.
1389 (Prohibition on attacks on United
States servicemen on account of
service), makes it unlawful to
knowingly assault or batter a United
States serviceman or an immediate
family member of a United States
serviceman, or to knowingly destroy or
injure the property of such serviceman
or immediate family member, on the
account of the military service of that
serviceman or status of that individual
as a United States serviceman. A person
who violates section 1389 is subject to
imprisonment for not more than 2 years
(in the case of a simple assault, or
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damage of not more than $500), for not
more than 5 years (in the case of damage
of more than $500), or for not less than
6 months nor more than 10 years (in the
case of a battery, or an assault resulting
in bodily injury). The proposed
amendment amends Appendix A
(Statutory Index) to reference the new
offense to §§ 2A2.2 (Aggravated
Assault), 2A2.3 (Minor Assault) and
2B1.1 (Theft, Property Destruction, and
Fraud). The Commission anticipates
that the official victim adjustment in
§ 3A1.2 (Official Victim) would apply in
such a case.
Proposed Amendment
The Commentary to § 2H1.1 captioned
‘‘Statutory Provisions’’ is amended by
inserting ‘‘249,’’ after ‘‘248,’’.
The Commentary to § 2H1.1 captioned
‘‘Application Notes’’ is amended in Note
4 by inserting ‘‘gender identity,’’ after
‘‘gender,’’.
[The Commentary to § 2H1.1
captioned ‘‘Application Notes’’ is
amended in Note 4 by striking the
sentence that begins ‘‘An adjustment’’
and all that follows through ‘‘See
§ 3A1.1(c).’’.]
Section 3A1.1 is amended in
subsection (a) by inserting ‘‘gender
identity,’’ after ‘‘gender,’’.
[Section 3A1.1 is amended by striking
subsection (c).]
[The Commentary to § 3A1.1
captioned ‘‘Application Notes’’ is
amended in Note 1 by striking the
sentence that begins ‘‘Moreover,’’.]
The Commentary to § 3A1.1 captioned
‘‘Application Notes’’ is amended in Note
3 by inserting ‘‘gender identity,’’ after
‘‘gender,’’; and by adding after Note 4 the
following:
‘‘5. For purposes of this guideline,
‘gender identity’ means actual or
perceived gender-related characteristics.
See 18 U.S.C. § 249(c)(4).’’.
The Commentary to § 3A1.1 captioned
‘‘Background’’ is amended in the first
paragraph by adding at the end the
following: ‘‘In section 4703(a) of Public
Law 111–84, Congress broadened the
scope of that directive to include gender
identity; to reflect that congressional
action, the Commission has broadened
the scope of this enhancement to
include gender identity.’’.
Appendix A (Statutory Index) is
amended by inserting after the line
referenced to 18 U.S.C. 247 the
following:
‘‘18 U.S.C. § 249 2H1.1’’;
and by inserting after the line
referenced to 18 U.S.C. 1369 the
following:
‘‘18 U.S.C. § 1389 2A2.2, 2A2.3,
2B1.1’’.
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6. Organizational Guidelines
Synopsis of Proposed Amendment:
This proposed amendment makes
several changes to Chapter Eight of the
Guidelines Manual regarding the
sentencing of organizations.
First, the proposed amendment
amends the Commentary to § 8B2.1
(Effective Compliance and Ethics
Program) to clarify the remediation
efforts required to satisfy subsection
(b)(7) (the seventh requirement for an
effective compliance and ethics
program). The proposed amendment
adds a new application note that
describes the reasonable steps to
respond appropriately after criminal
conduct is detected, including
remedying the harm caused to
identifiable victims and payment of
restitution. Notably, restitution is
already a significant remediation step
considered under current Department of
Justice guidelines in determining
whether to prosecute business
organizations. See U.S. Attorney’s
Manual, Chapter 9–28.300(A)(6) and
Chapter 9–28.900(A) & (B).
Second, the proposed amendment
amends § 8D1.4 (Recommended
Conditions of Probation—Organizations)
(Policy Statement) to augment and
simplify the recommended conditions
of probation for organizations. The
policy statement currently distinguishes
between conditions of probation
imposed solely to enforce a monetary
penalty (addressed in subsection (b))
and conditions of probation imposed for
any other reason (addressed in
subsection (c)). Under the proposed
amendment, subsections (b) and (c) are
consolidated; accordingly, when a court
determines there is a need for
organizational probation, all conditional
probation terms are available for
consideration by the court. The
proposed amendment also inserts
specific language regarding the
engagement of an independent, properly
qualified, corporate monitor. This
language reflects current governmental
policy and best practices with regard to
the appointment of such independent
corporate monitors. Finally, the
proposed amendment inserts specific
language requiring the organization to
submit to a reasonable number of
regular or unannounced examinations of
facilities subject to probation
supervision.
In addition, the proposed amendment
contains, in brackets, two proposed
additions to the Commentary of § 8B2.1.
The first bracketed addition amends
Application Note 3 to include a new
paragraph which clarifies what is
expected of high-level personnel and
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substantial authority personnel. Such
personnel ‘‘should be aware of the
organization’s document retention
policies and conform any document
retention policy to meet the goals of an
effective compliance program under the
guidelines and to avoid any liability
under the law’’.
The second bracketed addition
amends Application Note 6 to clarify
that when an organization periodically
assesses the risk that criminal conduct
will occur, the ‘‘nature and operations of
the organization with regard to
particular ethics and compliance
functions’’ should be included among
the other matters assessed. This
bracketed addition also states, as an
example, that ‘‘all employees should be
aware of the organization’s document
retention policy or policies and conform
any document retention policy to meet
the goals of an effective compliance
program under the guidelines and to
avoid any liability under the law’’.
Finally, the proposed amendment
makes technical and conforming
changes.
An issue for comment is also included
on whether to encourage direct
reporting to the board by responsible
compliance personnel by allowing an
organization with such a structure to
benefit from a three level mitigation of
the culpability score, even if high-level
personnel are involved in the criminal
conduct.
Proposed Amendment
[The Commentary to § 8B2.1
captioned ‘‘Application Notes’’ is
amended in Note 3 by adding at the end
the following:
‘‘Both high-level personnel and substantial
authority personnel should be aware of the
organization’s document retention policies
and conform any such policy to meet the
goals of an effective compliance program
under the guidelines and to reduce the risk
of liability under the law (e.g. 18 U.S.C.
§ 1519; 18 U.S.C. § 1512(c)).’’;
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and in Note 6(A) by adding at the end
the following:
‘‘(iv) The nature and operations of the
organization with regard to particular ethics
and compliance functions. For example, all
employees should be aware of the
organization’s document retention policies
and conform any such policy to meet the
goals of an effective compliance program
under the guidelines and to reduce the risk
of liability under the law (e.g. 18 U.S.C.
§ 1519; 18 U.S.C. § 1512(c)).]
The Commentary to § 8B2.1 captioned
‘‘Application Notes’’ is amended by
redesignating Note 6 as Note 7, and by
inserting after Note 5 the following:
‘‘6. Application of Subsection (b)(7).—The
seventh minimal requirement for an effective
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compliance and ethics program provides
guidance on the reasonable steps that an
organization should take after detection of
criminal conduct. First, the organization
should respond appropriately to the criminal
conduct. In the event the criminal conduct
has an identifiable victim or victims the
organization should take reasonable steps to
provide restitution and otherwise remedy the
harm resulting from the criminal conduct.
Other appropriate responses may include
self-reporting, cooperation with authorities,
and other forms of remediation. Second, to
prevent further similar criminal conduct, the
organization should assess the compliance
and ethics program and make modifications
necessary to ensure the program is more
effective. The organization may take the
additional step of retaining an independent
monitor to ensure adequate assessment and
implementation of the modifications.’’.
Section 8D1.4 is amended by striking
subsections (b) and (c) and inserting the
following:
‘‘(b) If probation is imposed under § 8D1.1,
the following conditions may be appropriate:
(1) The organization shall develop and
submit to the court an effective compliance
and ethics program consistent with § 8B2.1
(Effective Compliance and Ethics Program).
The organization shall include in its
submission a schedule for implementation of
the compliance and ethics program.
(2) Upon approval by the court of a
program referred to in subdivision (1), the
organization shall notify its employees and
shareholders of its criminal behavior and its
program referred to in subdivision (1). Such
notice shall be in a form prescribed by the
court.
(3) The organization shall be required to
retain an independent corporate monitor
agreed on by the parties or, in the absence
of such an agreement, selected by the court.
The independent corporate monitor must
have appropriate qualifications and no
conflict of interest in the case. The scope of
the independent corporate monitor’s role
shall be approved by the court.
Compensation to and costs of any
independent corporate monitor shall be paid
by the organization.
(4) The organization shall make periodic
submissions to the court or probation officer,
at intervals specified by the court, (A)
reporting on the organization’s financial
condition and results of business operations,
and accounting for the disposition of all
funds received, and (B) reporting on the
organization’s progress in implementing the
program referred to in subdivision (1).
Among other things, such reports shall
disclose any criminal prosecution, civil
litigation, or administrative proceeding
commenced against the organization, or any
investigation or formal inquiry by
governmental authorities of which the
organization learned since its last report.
(5) The organization shall be required to
notify the court or probation officer
immediately upon learning of (A) any
material adverse change in its business or
financial condition or prospects, or (B) the
commencement of any bankruptcy
proceeding, major civil litigation, criminal
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prosecution, or administrative proceeding
against the organization, or any investigation
or formal inquiry by governmental
authorities regarding the organization.
(6) The organization shall submit to: (A) A
reasonable number of regular or
unannounced examinations of its books and
records at appropriate business premises by
the probation officer, experts engaged by the
court, or independent corporate monitor; (B)
a reasonable number of regular or
unannounced examinations of facilities
subject to probation supervision; and (C)
interrogation of knowledgeable individuals
within the organization. Compensation to
and costs of any experts engaged by the court
or independent corporate monitors shall be
paid by the organization.
(7) The organization shall be required to
make periodic payments, as specified by the
court, in the following priority: (A)
Restitution; (B) fine; and (C) any other
monetary sanction.’’.
The Commentary to § 8D1.4 captioned
‘‘Application Note’’ is amended in Note
1 by striking ‘‘(a)(3) through (6)’’; by
inserting ‘‘or require retention of an
independent corporate monitor’’ after
‘‘experts’’; and by striking ‘‘(c)(3)’’ and
inserting ‘‘(b)(4)’’.
Issue for Comment
1. Should the Commission amend
§ 8C2.5(f)(3) (Culpability Score) to allow
an organization to receive the three level
mitigation for an effective compliance
program even when high-level
personnel are involved in the offense if
(A) the individual(s) with operational
responsibility for compliance in the
organization have direct reporting
authority to the board level (e.g. an
audit committee of the board); (B) the
compliance program was successful in
detecting the offense prior to discovery
or reasonable likelihood of discovery
outside of the organization; and (C) the
organization promptly reported the
violation to the appropriate authorities?
7. Miscellaneous
Synopsis of Proposed Amendment:
This proposed multi-part amendment
responds to miscellaneous issues arising
from legislation recently enacted and
other miscellaneous guideline
application issues.
Part A of the proposed amendment
responds to the Fraud Enforcement and
Recovery Act of 2009 (Pub. L. 111–21),
which expanded the securities fraud
statute, 18 U.S.C. 1348, so that it also
covers commodities fraud. Section
2B1.1 (Larceny, Embezzlement, and
Other Forms of Theft; Offenses
Involving Stolen Property; Property
Damage or Destruction; Fraud and
Deceit; Forgery; Offenses Involving
Altered or Counterfeit Instruments
Other than Counterfeit Bearer
Obligations of the United States)
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contains an enhancement at subsection
(b)(17)(B) that applies when a violation
of commodities law is committed by
certain specified persons who have
fiduciary duties. The proposed
amendment adds 18 U.S.C. 1348 to the
list of offenses that qualify as
‘‘commodities law’’ for purposes of this
enhancement.
Part B of the proposed amendment
responds to the Omnibus Public Land
Management Act of 2009 (Pub. L. 111–
11), which established a new offense at
16 U.S.C. 470aaa–5. The new offense
makes it unlawful to excavate, remove,
damage, or otherwise alter or deface any
paleontological resource on federal
land; to traffic in a paleontological
resource taken from federal land; or to
make or submit a false record relating to
a paleontological resource taken from
federal land. The proposed amendment
adds 16 U.S.C. 470aaa–5 to Appendix A
(Statutory Index) and references it to
§§ 2B1.1 and 2B1.5 (Theft of, Damage to,
or Destruction of, Cultural Heritage
Resources; Unlawful Sale, Purchase,
Exchange, Transportation, or Receipt of
Cultural Heritage Resources). Technical
and conforming changes to §§ 2B1.1 and
2B1.5 are also made.
Part C of the proposed amendment
responds to the Children’s Health
Insurance Program Reauthorization Act
of 2009 (Pub. L. 111–3), which amends
the Social Security Act to establish a
new offense at 42 U.S.C. 1396w–2. This
provision provides limited authority for
private entities to disclose certain
personal information related to
eligibility determinations to appropriate
State agencies, and also creates a new
Class A misdemeanor for those who
abuse this limited authority and
communicate protected information to
parties not entitled to view it. The
proposed amendment adds 42 U.S.C.
1396w–2 to Appendix A (Statutory
Index) and references it to § 2H3.1
(Interception of Communications;
Eavesdropping; Disclosure of Certain
Private or Protected Information).
Part D of the proposed amendment
responds to a regulatory change in the
status of iodine as a listed chemical.
Under that regulatory change, iodine
was upgraded from a List II chemical to
a List I chemical. The proposed
amendment changes the Chemical
Quantity Table in § 2D1.11 (Unlawfully
Distributing, Importing, Exporting or
Possessing a Listed Chemical; Attempt
or Conspiracy) to reflect the upgrade.
Because the maximum base offense
level is higher for List I chemicals (level
30) than for List II chemicals (level 28),
the proposed amendment also extends
iodine’s maximum base offense level to
level 30 and specifies the amount of
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iodine that would be needed (1.3
kilograms) for a base offense level of 30
to apply.
Proposed Amendment
(A) Fraud Enforcement and Recovery
Act of 2009
The Commentary to § 2B1.1 captioned
‘‘Application Notes’’ is amended in Note
14(A) by inserting ‘‘and 18 U.S.C.
§ 1348’’ after ‘‘7 U.S.C. § 1 et seq.)’’.
(B) Omnibus Public Land Management
Act of 2009
Section 2B1.1(c)(4) is amended by
inserting ‘‘or a paleontological resource’’
after ‘‘resource’’; and by inserting ‘‘or
Paleontological Resources’’ after
‘‘Heritage Resources’’ each place it
appears.
The Commentary to § 2B1.1 captioned
‘‘Application Notes’’ is amended in Note
1 by inserting after the paragraph that
begins ‘‘‘National cemetery’ means’’ the
following:
‘‘‘Paleontological resource’ has the
meaning given that term in Application
Note 1 of the Commentary to § 2B1.5
(Theft of, Damage to, or Destruction of,
Cultural Heritage Resources or
Paleontological Resources; Unlawful
Sale, Purchase, Exchange,
Transportation, or Receipt of Cultural
Heritage Resources or Paleontological
Resources).’’
Section 2B1.5 is amended in the
heading by inserting ‘‘or Paleontological
Resources’’ after ‘‘Heritage Resources’’
each place it appears.
Section 2B1.5(b) is amended by
inserting ‘‘or paleontological resource’’
after ‘‘heritage resource’’ each place it
appears; and in paragraph (5) by
inserting ‘‘or paleontological resources’’
after ‘‘heritage resources’’.
The Commentary to § 2B1.5 captioned
‘‘Statutory Provisions’’ is amended by
inserting ‘‘470aaa–5,’’ after ‘‘16 U.S.C.
§§ ’’.
The Commentary to § 2B1.5 captioned
‘‘Application Notes’’ is amended in Note
1 by redesignating (A) through (G) as (i)
through (vii), respectively; by striking’’
‘Cultural Heritage Resource’ Defined.—
For purposes of this guideline, ‘cultural
heritage resource’ means any of the
following:’’ and inserting:
‘‘Definitions.—For purposes of this
guideline:
(A) ‘Cultural heritage resource’ means
any of the following:’’;
By striking ‘‘(A)’’ before ‘‘has the
meaning’’ and inserting ‘‘(I)’’; by striking
‘‘(B)’’ before ‘‘includes’’ and inserting
‘‘(II)’’; and by adding at the end the
following:
‘‘(B) ‘Paleontological resource’ has the
meaning given such term in 16 U.S.C.
§ 470aaa.’’.
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The Commentary to § 2B1.5 captioned
‘‘Application Notes’’ is amended in Note
2 by striking ‘‘Cultural Heritage’’ both
places it appears; and by striking
‘‘cultural heritage’’ each place it appears.
The Commentary to § 2B1.5 captioned
‘‘Application Notes’’ is amended in Note
5(B) by striking ‘‘cultural heritage’’; in
Note 6(A) by inserting ‘‘or
paleontological resources’’ after
‘‘resources’’, and by striking ‘‘cultural
heritage’’ after ‘‘involving a’’ each place
it appears; in Note 8 by striking
‘‘cultural heritage’’ each place it appears;
and in Note 9 by inserting ‘‘or
paleontological resources’’ after
‘‘resources’’ the first two places it
appears; and by striking ‘‘cultural
heritage’’ after ‘‘or other’’.
Appendix A (Statutory Index) is
amended by inserting after the line
referenced to 16 U.S.C. § 413 the
following:
‘‘16 U.S.C. § 470aaa–5 2B1.1, 2B1.5’’.
(C) Children’s Health Insurance Program
Reauthorization Act of 2009
Appendix A (Statutory Index) is
amended by inserting after the line
referenced to 42 U.S.C. 1396h(b)(2) the
following:
‘‘42 U.S.C. § 1396w–2 2H3.1’’.
(D) Iodine
Section 2D1.11(e) is amended in
subdivisions (1)–(10) by inserting the
following list I chemicals in the
appropriate place in alphabetical order
by subdivision as follows:
(1) ‘‘1.3 KG or more of Iodine;’’,
(2) ‘‘At least 376.2 G but less than 1.3
KG of Iodine;’’,
(3) ‘‘At least 125.4 G but less than
376.2 G of Iodine;’’,
(4) ‘‘At least 87.8 G but less than 125.4
G of Iodine;’’,
(5) ‘‘At least 50.2 G but less than 87.8
G of Iodine;’’,
(6) ‘‘At least 12.5 G but less than 50.2
G of Iodine;’’,
(7) ‘‘At least 10 G but less than 12.5
G of Iodine;’’,
(8) ‘‘At least 7.5 G but less than 10 G
of Iodine;’’,
(9) ‘‘At least 5 G but less than 7.5 G
of Iodine;’’,
(10) ‘‘Less than 5 G of Iodine;’’; and
in subdivisions (2)–(10), in list II
chemicals, by striking the lines
referenced to ‘‘Iodine’’, and in the lines
referenced to ‘‘Toluene’’ by striking the
semicolon and inserting a period.
8. Technical
Synopsis of Proposed Amendment:
This two-part proposed amendment
makes various technical and conforming
changes to the guidelines.
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Part A of the proposed amendment
makes changes to the Guidelines
Manual to promote accuracy and
completeness. For example, it corrects
typographical errors, and it addresses
cases in which the Guidelines Manual
provides information (such as a
reference to a guideline, statute, or
regulation) that has become incorrect or
obsolete. Specifically, it amends:
(1) § 1B1.3 (Relevant Conduct),
Application Note 6, to ensure that two
quotations contained in that note are
accurate;
(2) § 1B1.8 (Use of Certain
Information), Application Note 2, to
revise a reference to the ‘‘Probation
Service’’;
(3) § 1B1.9 (Class B or C
Misdemeanors and Infractions),
Application Note 1, to reflect that some
infractions do not have any authorized
term of imprisonment;
(4) § 1B1.11 (Use of Guidelines
Manual in Effect on Date of Sentencing),
Application Note 2, to correct a
typographical error;
(5) § 2A1.1 (First Degree Murder),
Application Note 1, to provide specific
citations for the examples given;
(6) § 2A3.2 (Criminal Sexual Abuse of
a Minor Under the Age of Sixteen Years
(Statutory Rape) or Attempt to Commit
Such Acts)), Application Note 5, to
correct typographical errors;
(7) § 2A3.3 (Criminal Sexual Abuse of
a Ward or Attempt to Commit Such
Acts), Application Note 1, to correct a
typographical error;
(8) § 2A3.5 (Failure to Register as a
Sex Offender), Application Note 1, to
ensure that the statutory definitions
referred to in that note are accurately
cited;
(9) § 2B1.4 (Insider Trading),
Application Note 1, to correct a
typographical error;
(10) § 2B1.5 (Theft of, Damage to, or
Destruction of, Cultural Heritage
Resources), Application Note 1, to
provide updated citations to statutes
and regulations;
(11) § 2B3.1 (Robbery), Application
Note 2, to correct a typographical error;
(12) § 2B4.1 (Bribery in Procurement
of Bank Loan and Other Commercial
Bribery), Background, to provide an
updated description and reference to the
statute criminalizing bribery in
connection with Medicare and Medicaid
referrals;
(13) § 2B6.1 (Altering or Removing
Motor Vehicle Identification Numbers),
Background, to update the statutory
maximum term of imprisonment for
violations of 18 U.S.C. § 553(a)(2);
(14) § 2C1.1 (Offering, Giving,
Soliciting, or Receiving a Bribe),
Application Note 3, to ensure that the
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subsection relating to ‘‘loss’’ is
accurately cited;
(15) § 2C1.2 (Offering, Giving,
Soliciting, or Receiving a Gratuity),
Application Note 4, to correct a
typographical error;
(16) § 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or
Trafficking), in the Notes to the Drug
Quantity Table, to provide updated
citations to regulations;
(17) Both § 2D1.11 (Unlawfully
Distributing, Importing, Exporting or
Possessing a Listed Chemical),
Application Note 6, and § 2D1.12
(Unlawful Possession, Manufacture,
Distribution, Transportation,
Exportation, or Importation of
Prohibited Flask, Equipment, Chemical,
Product, or Material) to provide a more
accurate statutory citation and
description;
(18) § 2D1.14 (Narco-Terrorism),
subsection (a)(1), to provide an updated
guideline reference;
(19) § 2D2.1 (Unlawful Possession),
Commentary, to provide updated
statutory references;
(20) § 2G3.1 (Importing, Mailing, or
Transporting Obscene Matter),
Application Note 1, to make the
definition of ‘‘distribution’’ in that
guideline more consistent with the
definition of ‘‘distribution’’ in the child
pornography guidelines;
(21) § 2K2.1 (Unlawful Receipt,
Possession, or Transportation of
Firearms or Ammunition), Application
Note 2, to ensure that a quotation
contained in that note is accurate;
(22) § 2K2.5 (Possession of Firearm or
Dangerous Weapon in Federal Facility;
Possession or Discharge of Firearm in
School Zone), Application Notes 2 and
3, to provide updated statutory
references;
(23) Both § 2L2.2 (Trafficking in a
Document Relating to Naturalization,
Citizenship, or Legal Resident Status, or
a United States Passport), Statutory
Provisions, and § 2L2.2 (Fraudulently
Acquiring Documents Relating to
Naturalization, Citizenship, or Legal
Resident Status for Own Use), Statutory
Provisions, to provide updated statutory
references;
(24) § 2M3.1 (Gathering or
Transmitting National Defense
Information to Aid a Foreign
Government), Application Note 1, to
provide an updated reference to an
executive order;
(25) § 2M3.3 (Transmitting National
Defense Information), to provide an
updated statutory reference;
(26) § 2M3.9 (Disclosure of
Information Identifying a Covert Agent),
Application Note 3, to provide an
updated statutory reference;
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(27) § 2M6.1 (Unlawful Activity
Involving Nuclear Material, Weapons, or
Facilities, Biological Agents, Toxins, or
Delivery Systems, Chemical Weapons,
or Other Weapons of Mass Destruction),
Application Note 1, to provide updated
statutory references;
(28) § 2Q1.2 (Mishandling of
Hazardous or Toxic Substances or
Pesticides), Background, to provide
updated guideline references;
(29) § 2Q1.6 (Hazardous or Injurious
Devices on Federal Lands), subsection
(a)(1), to correct a typographical error;
(30) § 2Q2.1 (Offenses Involving Fish,
Wildlife, and Plants), Application Note
3, to provide a more complete reference
to regulations;
(31) Chapter Two, Part T, Subpart 2
(Alcohol and Tobacco Taxes),
Introductory Commentary, to provide a
more complete statutory reference;
(32) § 2X5.2 (Class A Misdemeanors
(Not Covered by Another Specific
Offense Guideline)), to strike an
erroneous statutory reference;
(33) Appendix A (Statutory Index), to
provide updated statutory references
and strike an erroneous statutory
reference.
Part B of the proposed amendment
makes a series of changes to the
Guidelines Manual to promote stylistic
consistency in how subdivisions are
designated. Specifically, when dividing
guideline sections into subdivisions, the
guidelines generally follow the structure
used by Congress to divide statutory
sections into subdivisions. Thus, a
section is broken into subsections
(starting with ‘‘(a)’’), which are broken
into paragraphs (starting with ‘‘(1)’’),
which are broken into subparagraphs
(starting with ‘‘(A)’’), which are broken
into clauses (starting with ‘‘(i)’’), which
are broken into subclauses (starting with
‘‘(I)’’). See Koons Buick Pontiac GMC,
Inc., v. Nigh, 543 U.S. 50, 60 (2004). For
a generic term, ‘‘subdivision’’ is also
used. When dividing application notes
into subdivisions, the guidelines
generally follow the same structure,
except that subsections and paragraphs
are not used; the first subdivisions used
are subparagraphs (starting with ‘‘(A)’’).
Part B of the proposed amendment
identifies places in the Guidelines
Manual where these principles are not
followed and brings them into
conformity.
Proposed Amendment
(A) Changes To Promote Accuracy and
Completeness
The Commentary to § 1B1.3 captioned
‘‘Application Notes’’ is amended in Note
6, in the paragraph that begins ‘‘A
particular guideline’’, by striking ‘‘‘is’’
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and inserting ‘‘‘was’’; and by striking
‘‘was committed by the means set forth
in’’ and inserting ‘‘involved conduct
described in’’.
The Commentary to § 1B1.8 captioned
‘‘Application Notes’’ is amended in Note
2 by striking ‘‘Probation Service’’ and
inserting ‘‘probation office’’.
The Commentary to § 1B1.9 captioned
‘‘Application Notes’’ is amended in Note
1 by inserting ‘‘or for which no
imprisonment is authorized. See 18
U.S.C. 3559’’ after ‘‘five days’’.
The Commentary to § 1B1.11
captioned ‘‘Application Notes’’ is
amended in Note 2 by striking
‘‘Guideline’’ and inserting ‘‘Guidelines’’.
The Commentary to § 2A1.1 captioned
‘‘Application Notes’’ is amended in Note
1 by inserting ‘‘, see § 2A4.1(c)(1)’’ after
‘‘occurs’’; and by inserting ‘‘, see
§ 2E1.3(a)(2)’’ after ‘‘racketeering’’.
The Commentary to § 2A3.2 captioned
‘‘Application Notes’’ is amended in Note
5 by striking ‘‘kidnaping’’ and inserting
‘‘kidnapping’’ each place it appears.
The Commentary to § 2A3.3 captioned
‘‘Application Notes’’ is amended in Note
1 by inserting ‘‘years’’ before ‘‘; (B)’’.
The Commentary to § 2A3.5 captioned
‘‘Application Notes’’ is amended in Note
1 by striking ‘‘those terms in 42 U.S.C.
§ 16911(2), (3) and (4), respectively’’ and
inserting ‘‘the terms ‘tier I sex offender’,
‘tier II sex offender’, and ‘tier III sex
offender’, respectively, in 42 U.S.C.
§ 16911’’.
The Commentary to § 2B1.4 captioned
‘‘Application Notes’’ is amended in Note
1 by striking ‘‘Subsection of’’.
The Commentary to § 2B1.5 captioned
‘‘Application Notes’’ is amended in Note
1(C) by striking ‘‘299’’ and inserting
‘‘229’’; and in Note 1(E) by striking
‘‘section 2(c) of Public Law 99–652 (40
U.S.C. 1002(c))’’ and inserting ‘‘40 U.S.C.
§ 8902(a)(1)’’.
The Commentary to § 2B3.1 captioned
‘‘Application Notes’’ is amended in Note
2 by striking ‘‘(d)’’ and inserting ‘‘(D)’’.
The Commentary to § 2B4.1 captioned
‘‘Background’’ is amended in the
paragraph that begins ‘‘This guideline
also applies’’ by striking ‘‘was recently
increased from two to’’ and inserting
‘‘is’’; and by striking the sentence that
begins ‘‘Violation’’ and all that follows
through ‘‘to the Medicaid program.’’ and
inserting ‘‘Violations of 42 U.S.C.
§ 1320a–7b involve the offer or
acceptance of a payment to refer an
individual for services or items paid for
under a federal health care program
(e.g., the Medicare and Medicaid
programs).’’.
The Commentary to § 2B6.1 captioned
‘‘Background’’ is amended by striking
‘‘§§ 511 and 553(a)(2)’’ and inserting
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‘‘§ 511’’; and by inserting ‘‘§ 553(a)(2)
and’’ before ‘‘2321’’.
The Commentary to § 2C1.1 captioned
‘‘Application Notes’’ is amended in Note
3 by striking ‘‘(A)’’ after ‘‘(b)(2)’’.
The Commentary to § 2C1.2 captioned
‘‘Application Notes’’ is amended in Note
4 by striking ‘‘or’’ before ‘‘Trust’’ and
inserting ‘‘of’’.
Section 2D1.1(c) is amended in each
of Notes (H) and (I) to the Drug Quantity
Table by striking ‘‘(25)’’ and inserting
‘‘(30)’’.
The Commentary to § 2D1.11
captioned ‘‘Application Notes’’ is
amended in Note 6 by striking ‘‘or’’ after
‘‘1319(c),’’; by striking § 5124,’’; and by
inserting after ‘‘9603(b)’’ the following: ‘‘,
and 49 U.S.C. § 5124 (relating to
violations of laws and regulations
enforced by the Department of
Transportation with respect to the
transportation of hazardous material)’’.
The Commentary to § 2D1.12
captioned ‘‘Application Notes’’ is
amended in Note 3 by striking ‘‘or’’ after
‘‘1319(c),’’; by striking § 5124,’’; and by
inserting after ‘‘9603(b)’’ the following: ‘‘,
and 49 U.S.C. 5124 (relating to
violations of laws and regulations
enforced by the Department of
Transportation with respect to the
transportation of hazardous material)’’.
Section 2D1.14(a)(1) is amended by
striking ‘‘(3)’’and inserting ‘‘(5)’’ both
places it appears.
The Commentary to § 2D2.1 captioned
‘‘Background’’ is amended in the
paragraph that begins ‘‘Section
2D2.1(b)(1)’’ by striking ‘‘Section 6371 of
the Anti-Drug Abuse Act of 1988’’ both
places it appears and inserting ‘‘21
U.S.C. § 844’’ both places it appears.
The Commentary to § 2G3.1 captioned
‘‘Application Notes’’ is amended in Note
1 in the paragraph that begins
‘‘‘Distribution’ means’’ by inserting
‘‘transmission,’’ after ‘‘production,’’.
The Commentary to § 2K2.1 captioned
‘‘Application Notes’’ is amended in Note
2 by inserting ‘‘That Is’’ after ‘‘Firearm’’;
and by inserting ‘‘that is’’ after
‘‘‘semiautomatic firearm’’.
The Commentary to § 2K2.5 captioned
‘‘Application Notes’’ is amended in Note
2 by striking ‘‘(f)’’ and inserting ‘‘(g)’’; and
in Note 3 by inserting ‘‘See 18 U.S.C.
§ 924(a)(4).’’ after ‘‘other offense.’’.
The Commentary to § 2L2.1 captioned
‘‘Statutory Provisions’’ is amended by
striking ‘‘(b),’’ after ‘‘1325’’; and by
inserting ‘‘, (d)’’ after ‘‘(c)’’.
The Commentary to § 2L2.2 captioned
‘‘Statutory Provisions’’ is amended by
striking ‘‘(b),’’ after ‘‘1325’’; and by
inserting ‘‘, (d)’’ after ‘‘(c)’’.
The Commentary to § 2M3.1
captioned ‘‘Application Notes’’ is
amended in Note 1 by striking ‘‘12356’’
PO 00000
Frm 00097
Fmt 4703
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and inserting ‘‘12958 (50 U.S.C. § 435
note)’’.
The Commentary to § 2M3.3
captioned ‘‘Statutory Provisions’’ is
amended by striking ‘‘(b), (c)’’.
The Commentary to § 2M3.9
captioned ‘‘Application Notes’’ is
amended in Note 3 by inserting ‘‘See 50
U.S.C. § 421(d).’’ after ‘‘imprisonment.’’.
The Commentary to § 2M6.1
captioned ‘‘Application Notes’’ is
amended in Note 1 in the paragraph that
begins ‘‘Foreign terrorist’’ by striking
‘‘1219’’ and inserting ‘‘1189’’; and in the
paragraph that begins ‘‘‘Restricted
person’’ by striking ‘‘(b)’’ and inserting
‘‘(d)’’.
The Commentary to § 2Q1.2 captioned
‘‘Background’’ is amended by striking
‘‘last two’’ and inserting ‘‘fifth and sixth’’.
Section 2Q1.6(a)(1) is amended by
striking ‘‘Substance’’ and inserting
‘‘Substances’’.
The Commentary to § 2Q2.1 captioned
‘‘Application Notes’’ is amended in Note
3 by inserting ‘‘, Subtitle B,’’ after ‘‘7
CFR’’.
Chapter Two, Part T, Subpart 2, is
amended in the Introductory
Commentary by striking ‘‘section’’ and
inserting ‘‘subpart’’; and by inserting ‘‘of
Chapter 51 of Subtitle E’’ after
‘‘Subchapter J’’.
The Commentary to § 2X5.2 captioned
‘‘Statutory Provisions’’ is amended by
striking ‘‘§ 1129(a),’’.
Appendix A (Statutory Index) is
amended in the line referenced to 7
U.S.C. § 13(f) by striking ‘‘(f)’’ and
inserting ‘‘(e)’’;
In the line referenced to 8 U.S.C.
1325(b) by striking ‘‘(b)’’ and inserting
‘‘(c)’’;
In the line referenced to 8 U.S.C.
1325(c) by striking ‘‘(c)’’ and inserting
‘‘(d)’’;
By inserting after the line referenced
to 18 U.S.C. 47 the following:
‘‘18 U.S.C. § 248 2H1.1’’;
By striking the line referenced to 18
U.S.C. 1129(a);
By inserting after the line referenced
to 42 U.S.C. 1320a–7b the following:
‘‘42 U.S.C. § 1320a–8b 2X5.1, 2X5.2’’;
In the line referenced to 50 U.S.C.
783(b) by striking ‘‘(b)’’; and
By striking the line referenced to 50
U.S.C. 783(c).
(B) Changes To Promote Stylistic
Consistency
The Commentary to § 1B1.3 captioned
‘‘Application Notes’’ is amended in Note
2 in the second paragraph by striking
‘‘(i)’’ and inserting ‘‘(A)’’; and by striking
‘‘(ii)’’ and inserting ‘‘(B)’’.
The Commentary to § 1B1.13
captioned ‘‘Application Notes’’ is
amended in Note 1 by striking
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‘‘Subsection’’ and inserting
‘‘Subdivision’’.
Section 2H4.2(b)(1) is amended by
striking ‘‘(i)’’ and inserting ‘‘(A)’’; and by
striking ‘‘(ii)’’ and inserting ‘‘(B)’’.
The Commentary to § 2K1.3 captioned
‘‘Application Notes’’ is amended in Note
10 by striking ‘‘(1)’’ and inserting ‘‘(A)’’;
by striking ‘‘(2)’’ and inserting ‘‘(B)’’; by
striking ‘‘(3)’’ and inserting ‘‘(C)’’; and by
striking ‘‘(4)’’ and inserting ‘‘(D)’’.
The Commentary to § 2K2.1 captioned
‘‘Application Notes’’ is amended in Note
11 by striking ‘‘(1)’’ and inserting ‘‘(A)’’;
by striking ‘‘(2)’’ and inserting ‘‘(B)’’; by
striking ‘‘(3)’’ and inserting ‘‘(C)’’; and by
striking ‘‘(4)’’ and inserting ‘‘(D)’’.
The Commentary to § 3C1.1 captioned
‘‘Application Notes’’ is amended in Note
4 by redesignating subdivisions (a)
through (k) as (A) through (K); and in
Note 5 by redesignating subdivisions (a)
through (e) as (A) through (E).
The Commentary to § 3E1.1 captioned
‘‘Application Notes’’ is amended in Note
1 by redesignating subdivisions (a)
through (h) as (A) through (H).
Section 5K2.17 is amended by striking
‘‘(A)’’ and inserting ‘‘(1)’’; and by striking
‘‘(B)’’ and inserting ‘‘(2)’’.
[FR Doc. 2010–970 Filed 1–20–10; 8:45 am]
BILLING CODE 2210–40–P
jlentini on DSKJ8SOYB1PROD with NOTICES
National Research Advisory Council;
Notice of Meeting
The Department of Veterans Affairs
(VA) gives notice under Public Law 92–
463 (Federal Advisory Committee Act)
that the National Research Advisory
Council will hold a meeting on
Thursday, February 4, 2010, in the
second floor conference room of the
Paralyzed Veterans of America Building,
801 18th Street, NW., Washington, DC.
The meeting will convene at 8:30 a.m.
and end at 3 p.m. The meeting is open
to the public.
The purpose of the Council is to
provide external advice and review for
VA’s research mission. The agenda will
include a review of the VA research
portfolio and a summary of current
budget allocations. The Council will
also provide feedback on the direction/
focus of VA’s research initiatives.
Time will be allocated for receiving
public comments at 2 p.m. Public
comments will be limited to three
minutes each. Individuals wishing to
make oral statements before the
Committee will be accommodated on a
first-come first-served basis. Individuals
who speak are invited to submit 1–2
page summaries of their comments at
16:17 Jan 20, 2010
Jkt 220001
Dated: January 14, 2010.
By direction of the Secretary.
Vivian Drake,
Acting Committee Management Officer.
[FR Doc. 2010–991 Filed 1–20–10; 8:45 am]
BILLING CODE 8320–01–P
DEPARTMENT OF VETERANS
AFFAIRS
[OMB Control No. 2900–0571]
Agency Information Collection (NCA
Customer Satisfaction Surveys
(Headstone/Marker)) Activity Under
OMB Review
AGENCY: National Cemetery
Administration, Department of Veterans
Affairs.
ACTION: Notice.
DEPARTMENT OF VETERANS
AFFAIRS
VerDate Nov<24>2008
the time of the meeting for inclusion in
the official meeting record.
The public may submit written
statements for the Committee’s review
to Ms. Margaret Hannon, Designated
Federal Officer, Department of Veterans
Affairs, Office of Research and
Development (12), 810 Vermont
Avenue, NW., Washington, DC 20420,
or electronically at
Margaret.Hannon@va.gov. Any member
of the public wishing to attend the
meeting or seeking additional
information should contact Ms. Hannon
at (202) 461–1696.
SUMMARY: In compliance with the
Paperwork Reduction Act (PRA) of 1995
(44 U.S.C. 3501–3521), this notice
announces that the National Cemetery
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; it includes
the actual data collection instrument.
DATES: Comments must be submitted on
or before February 22, 2010.
ADDRESSES: Submit written comments
on the collection of information through
https://www.Regulations.gov; or to VA’s
OMB Desk Officer, OMB Human
Resources and Housing Branch, New
Executive Office Building, Room 10235,
Washington, DC 20503 (202) 395–7316.
Please refer to ‘‘OMB Control No. 2900–
0571’’ in any correspondence.
FOR FURTHER INFORMATION CONTACT:
Denise McLamb, Enterprise Records
Service (005R1B), Department of
Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420, (202) 461–
7485, FAX (202) 273–0443 or e-mail
PO 00000
Frm 00098
Fmt 4703
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3539
denise.mclamb@mail.va.gov. Please
refer to ‘‘OMB Control No. 2900–0571.’’
SUPPLEMENTARY INFORMATION:
Title: Generic Clearance for NCA, and
IG Customer Satisfaction Surveys.
OMB Control Number: 2900–0571.
Type of Review: Extension of a
currently approved collection.
Abstract: Executive Order 12862,
Setting Customer Service Standards,
requires Federal agencies and
Departments to identify and survey its
customers to determine the kind and
quality of services they want and their
level of satisfaction with existing
service. VA will use the data collected
to maintain ongoing measures of
performance and to determine how well
customer service standards are met.
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 on
November 12, 2009, at pages 58373–
58374.
Affected Public: Individuals or
households.
Estimated Annual Burden Hours,
Burden per Respondents, and Number
of Respondents
I. National Cemetery Administration
Focus Groups
a. Next of Kin (5 groups/10/
participants per group/3 hours each
session) = 150 hours.
b. Funeral Directors (5 groups/10
participants per group/3 hours each
session) = 150 hours.
c. Veterans Service Organizations (5
groups/10 participants per group/3
hours each session) = 150 hours.
II. National Cemetery Administration
Visitor Comments Cards (Local Use)
(2,500 respondents/5 minutes per
card) = 208 hours.
III. National Cemetery Administration
Mail Surveys
a. Next of Kin National Customer
Satisfaction Survey (Mail to 15,000
respondents/30 minutes per survey) =
7,500 hours.
b. Funeral Directors National
Customer Satisfaction Survey (Mail to
4,000 respondents/30 minutes per
survey) = 2,000 hours.
c. Veterans-At-Large National
Customer Satisfaction Survey (Mail to
5,000 respondents/30 minutes per
survey) = 2,500 hours.
E:\FR\FM\21JAN1.SGM
21JAN1
Agencies
[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Notices]
[Pages 3525-3539]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-970]
=======================================================================
-----------------------------------------------------------------------
UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of proposed amendments to sentencing guidelines, policy
statements, and commentary. Request for public comment, including
public comment regarding retroactive application of any of the proposed
amendments. Notice of public hearing.
-----------------------------------------------------------------------
SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United
States Code, the United States Sentencing Commission is considering
promulgating certain 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 a number of
issues for comment, some of which are set forth together with the
proposed amendments; some of which are set forth independent of any
proposed amendment; and one of which (regarding retroactive application
of proposed amendments) is set forth in the Supplementary Information
portion of this notice.
The proposed amendments and issues for comment in this notice are
as follows: (1) A proposed amendment on alternatives to incarceration,
including a proposed new guideline that would provide authority under
the guidelines to impose an alternative to incarceration for drug
offenders who need treatment for drug addiction and who meet certain
criteria, and proposed changes to the Sentencing Table in Chapter Five
that would expand Zones B and C by one level in each criminal history
category, and related issues for comment on alternatives to
incarceration; (2) issues for comment on the extent to which specific
offender characteristics should be considered at sentencing generally
and in the Guidelines Manual in particular, including issues for
comment on age; mental and emotional condition; physical condition;
military service, public service, and good works; and lack of guidance
as a youth, and issues for comment on when, if at all, a downward
departure may be appropriate based on the collateral consequences of a
defendant's status as a non-citizen, or based on cultural assimilation;
(3) a proposed amendment to Sec. 1B1.1 (Application Instructions) in
light of United States v. Booker, 543 U.S. 220 (2005); (4) a proposed
amendment on the computation of criminal history points under
subsection (e) of Sec. 4A1.1 (Criminal History Category), known as the
``recency'' provision, including proposed changes to Sec. 4A1.1 to
reduce the cumulative impact of ``recency'', and issues for comment on
whether the Commission should instead address the cumulative impact of
``recency'' only for one or more specific Chapter Two offense
guidelines; (5) a proposed amendment in response to the Matthew
Shephard and James Byrd, Jr. Hate Crime Prevention Act, division E of
Public Law 111-84, including proposed changes to Sec. 3A1.1 (Hate
Crime Motivation or Vulnerable Victim); (6) a proposed amendment to
Chapter Eight of the Guidelines Manual regarding the sentencing of
organizations, including proposed changes to Sec. 8B2.1 (Effective
Compliance and Ethics Program) and Sec. 8D1.4 (Recommended Conditions
of Probation--Organizations), and a related issue for comment; (7) a
proposed amendment in response to miscellaneous issues arising from
legislation recently enacted and other miscellaneous guideline
application issues, including proposed changes to the guidelines'
treatment of offenses involving commodities fraud, paleontological
resources, unauthorized disclosures of personal information regarding
health insurance eligibility, and iodine; and (8) a proposed amendment
in response to certain technical issues that have arisen in the
guidelines.
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 March 22, 2010.
(2) Public Hearing.--The Commission plans to hold a public hearing
regarding the proposed amendments and issues for comment set forth in
this notice. Further information regarding the public hearing,
including requirements for testifying and providing written testimony,
as well as the location, time, and scope of the hearing, will be
provided by the Commission on its Web site at https://www.ussc.gov.
ADDRESSES: Public comment should be sent to: United States Sentencing
Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC
20002-8002, Attention: Public Affairs.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs
Officer, Telephone: (202) 502-4597.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day of May each
year pursuant to 28 U.S.C. 994(p).
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 or commentary. Bracketed text within a
proposed amendment indicates a heightened interest on the
[[Page 3526]]
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.
The Commission also requests public comment regarding whether the
Commission should specify for retroactive application to previously
sentenced defendants any of the proposed amendments published in this
notice. The Commission requests comment regarding which, if any, of the
proposed amendments that may result in a lower guideline range should
be made retroactive to previously sentenced defendants pursuant to
Sec. 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended
Guideline Range).
Additional information pertaining to the proposed amendments
described in this notice may be accessed through the Commission's Web
site at https://www.ussc.gov.
Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of
Practice and Procedure, Rule 4.4.
William K. Sessions III,
Chair.
1. Alternatives to Incarceration
Synopsis of Proposed Amendment: In September 2009, the Commission
indicated that one of its policy priorities would be continued study of
alternatives to incarceration, including consideration of any potential
changes to the zones incorporated in the Sentencing Table in Chapter
Five and/or other changes to the guidelines that might be appropriate
in light of the information obtained from that study. See 74 FR 46478,
46479 (September 9, 2009). The Commission is publishing this proposed
amendment to inform the Commission's consideration of alternatives to
incarceration.
The proposed amendment contains two parts (A and B). The Commission
is considering whether to promulgate either or both of these parts, as
they are not necessarily mutually exclusive.
Part A expands the authority of the court to impose an alternative
to incarceration for drug offenders who need treatment for drug
addiction and who meet certain criteria. This part does so by creating
a new guideline, Sec. 5C1.3, that provides the court with authority
under the guidelines to impose a sentence of probation (with a
requirement that the offender participate in a [residential] treatment
program) rather than a sentence of imprisonment, without regard to the
applicable Zone of the Sentencing Table. To use this authority, the
court must find that the drug offender has demonstrated a willingness
to participate in a substance abuse treatment program and [will likely
benefit from such a program][that participation in such a program will
likely address the defendant's need for substance abuse treatment], and
the court must impose a condition of probation that requires the
defendant to participate in a [residential] substance abuse treatment
program. To be eligible for this alternative to incarceration, a drug
offender must have committed the offense while addicted to a controlled
substance[, and the controlled substance addiction must have
contributed substantially to the commission of the offense]. Also, the
drug offender's total offense level must be not greater than [11]-[16].
Finally, the drug offender must meet the ``safety valve'' criteria set
forth in Sec. 5C1.2 (Limitation on Applicability of Statutory Minimum
Sentences in Certain Cases).
Part A also makes conforming changes to Sec. 5B1.1 (Imposition of
a Term of Probation) and Sec. 5C1.1 (Imposition of a Term of
Imprisonment).
Part B expands Zones B and C in the Sentencing Table in Chapter
Five. Specifically, it expands Zone B by one level in each of Criminal
History Categories I through VI (taking this area from Zone C), and
expands Zone C by one level in each of Criminal History Categories I
through VI (taking this area from Zone D). Part B also provides
guidance on the effectiveness of residential treatment programs.
Finally, Part B makes conforming changes to Sec. Sec. 5B1.1 and 5C1.1.
Issues for comment are also included.
Proposed Amendment
Part A:
Chapter Five, Part C is amended by adding at the end the following
new guideline:
``Sec. 5C1.3. Substance Abuse Treatment Program as Alternative to
Incarceration for Certain Drug Offenders
(a) Subject to subsection (b), in the case of an offense under 21
U.S.C. 841, 844, 846, 960, or 963, the court may sentence the defendant
to a term of probation without regard to the applicable Zone of the
Sentencing Table, if the court finds that the defendant meets the
criteria set forth below:
(1) The defendant committed the offense while addicted to a
controlled substance[, and the controlled substance addiction
contributed substantially to the commission of the offense];
(2) The defendant has demonstrated a willingness to participate in
a substance abuse treatment program, and [will likely benefit from such
a program][participation in such a program will likely address the
defendant's need for substance abuse treatment];
(3) The total offense level for purposes of the Sentencing Table in
Chapter Five, Part A, is not greater than [11]-[16];
(4) Each of the criteria set forth in Sec. 5C1.2 (Limitation on
Applicability of Statutory Minimum Sentences in Certain Cases).
(b) If the court imposes probation under subsection (a), the court
must include a condition that requires the defendant to participate in
a [residential] substance abuse treatment program.''.
Section 5B1.1(a) is amended in paragraph (2) by striking the period
at the end and inserting ``; or''; and by adding at the end the
following:
``(3) Sec. 5C1.3 applies.''.
The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is
amended in Note 1 by adding at the end the following:
``(c) Where Sec. 5C1.3 applies. See Sec. 5C1.3.'';
And in Note 2 by inserting ``, except as provided in Sec. 5C1.3''
after ``probation''.
Section 5C1.1 is amended by adding at the end the following:
``(g) Notwithstanding subsections (a)-(f), a sentence of
imprisonment is not required if Sec. 5C1.3 applies.''.
The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is
amended by adding at the end the following:
``9. Subsection (g) provides that, notwithstanding subsections (a)
through (f), a sentence of imprisonment is not required if Sec. 5C1.3
applies.''.
Part B:
The Sentencing Table in Chapter Five, Part A, is amended--
(1) By increasing Zone B by one level in each of Criminal History
Categories I through VI (so that Zone B contains offense levels 9-11 in
Criminal History Category I; 6-10 in Criminal History Category II; 5-9
in Criminal History Category III; 4-7 in Criminal History Category IV;
3-6 in Criminal History
[[Page 3527]]
Category V; and 2-5 in Criminal History Category VI), and,
correspondingly, by removing each such offense level from Zone C; and
(2) By increasing Zone C by one level in each of Criminal History
Categories I through VI (so that Zone C contains offense levels 12-13
in Criminal History Category I; 11-12 in Criminal History Category II;
10-11 in Criminal History Category III; 8-9 in Criminal History
Category IV; 7 in Criminal History Category V; and 6 in Criminal
History Category VI).
For an illustration of the proposed amendment to the Sentencing
Table, as executed, see table. The existing boundaries of Zones B and C
are marked with straight lines; the new proposed lower boundary of Zone
B is shaded; and the new proposed lower boundary of Zone C is marked
with a wavy line.
BILLING CODE 2210-40-P
[[Page 3528]]
[GRAPHIC] [TIFF OMITTED] TN21JA10.000
BILLING CODE 2210-40-C
The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is
amended in Note 1(b) by striking ``six'' and inserting
[[Page 3529]]
``nine''; and in Note 2 by striking ``eight'' and inserting ``ten''.
The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is
amended in Note 3 by striking ``six'' after ``not more than'' and
inserting ``nine''; and in Note 4 by striking ``eight, nine, or ten
months'' and inserting ``ten or twelve months''; by striking ``8-14''
both places it appears and inserting ``10-16''; by striking ``sentence
of four'' both places it appears and inserting ``sentence of five'';
and by striking ``five'' after ``and a sentence of'' and inserting
``ten''; and by redesignating Notes 6, 7, and 8 as Notes 7, 8, and 9,
respectively; and by inserting after Note 5 the following:
``6. There may be cases in which community confinement in a
residential treatment program is warranted to accomplish a specific
treatment purpose. In such a case, the court should consider the
effectiveness of the residential treatment program.
An effective program should possess, at a minimum, the following
features:
(A) The program is licensed, certified, accredited, or otherwise
approved by the relevant state regulatory agency.
(B) The program is operated by professionals who are well trained,
qualified, and experienced in the evaluation and treatment of
participants and who follow established ethical and professional
standards.
(C) The evaluation and treatment of participants is based on ``the
best available scientific knowledge.''; and in Note 9 (as so
redesignated) by striking ``twelve'' and inserting ``15''.
Issues for Comment
1. The Commission requests comment on how Part A of the proposed
amendment should interact with other provisions in the Guidelines
Manual. In particular, if the Commission were to promulgate Part A,
what other amendments to Chapter Five of the Guidelines Manual would be
appropriate?
For example, Sec. 5H1.4 (Physical Condition, Including Drug or
Alcohol Dependence or Abuse; Gambling Addiction) currently provides,
among other things, that physical condition ``is not ordinarily
relevant in determining whether a departure is warranted'' and that
``drug or alcohol dependence or abuse is not a reason for a downward
departure''. If the Commission were to promulgate Part A, what changes,
if any, should the Commission make to Sec. 5H1.4?
2. The Commission requests comment on whether defendants with a
condition other than drug addiction, such as a mental or emotional
condition, should be eligible for treatment programs as an alternative
to incarceration.
3. The Commission requests comment on whether the proposed
amendment should include standards for effective treatment programs.
The Commission has provided standards for other types of programs; for
example, Sec. 8B2.1 (Effective Compliance and Ethics Program))
provides minimum requirements for corporate compliance and ethics
programs. Should the Commission similarly provide standards for
effective treatment programs? If so, what standards should the
Commission provide?
4. 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?
5. The Commission requests comment on what revisions to Chapter
Five, Part B (Probation), and Chapter Five, Part F (Sentencing
Options), may be appropriate to provide more guidance on the use of
alternatives to incarceration.
As explained in the Introductory Commentary to Chapter Five, Part
B, ``probation is a sentence in and of itself'', and may be used as an
alternative to incarceration, ``provided that the terms and conditions
of probation can be fashioned so as to meet fully the statutory
purposes of sentencing, including respect for law, providing just
punishment for the offense, achieving general deterrence, and
protecting the public from further crimes by the defendant''.
Are there changes the Commission should make to the guidelines to
guide courts in fashioning sentences that meet the statutory purposes
of sentencing, see 18 U.S.C. 3553(a)(2), and to better implement the
requirements of 28 U.S.C. 994(j) (requiring the Commission to ensure
that ``the guidelines reflect the general appropriateness of imposing a
sentence other than imprisonment in cases in which the defendant is a
first offender who has not been convicted of a crime of violence or an
otherwise serious offense'')?
In particular, should the Commission make changes to Chapter Five,
Parts B and F, to more broadly encourage the use of alternatives to
incarceration, such as community confinement, home detention, and
intermittent confinement (see Sec. Sec. 5F1.1 (Community Confinement),
5F1.2 (Home Detention), and 5F1.8 (Intermittent Confinement))? If so,
what changes should the Commission make?
Should the Commission make changes to Chapter Five, Parts B and F,
to provide more guidance to the court in deciding whether to impose an
alternative to incarceration in a particular case and, if so, in
deciding what specific alternative to incarceration should be imposed?
For example, what guidance should the Commission provide with regard to
how the court should decide among sentencing a particular defendant to
imprisonment, intermittent confinement, community confinement, or home
detention?
2. Specific Offender Characteristics
Issues for Comment
1. In September 2009, the Commission indicated that one of its
policy priorities would be a ``review of departures within the
guidelines, including (A) a review of the extent to which pertinent
statutory provisions prohibit, discourage, or encourage certain factors
as forming the basis for departure from the guideline sentence; and (B)
possible revisions to the departure provisions in the Guidelines
Manual.'' See 74 FR 46478, 46479 (September 9, 2009).
The Sentencing Reform Act (the ``Act'') contained several
provisions regarding the relevance of specific offender characteristics
to sentencing:
First, the Act directs the Commission to consider whether eleven
specific offender characteristics, ``among others'', have any relevance
to the nature, extent, place of service, or other incidents of an
appropriate sentence, and to take them into account in the guidelines
and policy statements only to the extent that they do have relevance.
See 28 U.S.C. 994(d).
Second, the Act directs the Commission to ensure that the
guidelines and policy statements, in recommending a term of
imprisonment or length of a term of imprisonment, reflect the ``general
inappropriateness'' of considering five of those characteristics--
education; vocational
[[Page 3530]]
skills; employment record; family ties and responsibilities; and
community ties. See 28 U.S.C. 994(e).
Third, the Act directs the Commission to ensure that the guidelines
and policy statements ``are entirely neutral'' as to five other
characteristics--race, sex, national origin, creed, and socioeconomic
status. See 28 U.S.C. 994(d).
Fourth, the Act also directs the sentencing court, in determining
the particular sentence to be imposed, to consider, among other
factors, ``the history and characteristics of the defendant''. See 18
U.S.C. 3553(a)(1).
As part of its review of departures, the Commission is reviewing
the relevance of specific offender characteristics to sentencing. The
Commission contemplates that work on this priority will continue beyond
the amendment cycle ending May 1, 2010. During the amendment cycle
ending May 1, 2010, the Commission is focusing on specific offender
characteristics addressed in Chapter Five, Part H, of the Guidelines
Manual that are not listed in 28 U.S.C. 994(e).
The Commission requests comment on the extent to which specific
offender characteristics should be considered at sentencing generally
and in the Guidelines Manual in particular. The Commission has received
some public comment suggesting that, in light of United States v.
Booker, 543 U.S. 220 (2005), the Commission amend the Guidelines Manual
to eliminate provisions regarding specific offender characteristics,
which are addressed in the Guidelines Manual primarily through the
policy statements in Chapter Five, Part H. Eliminating Chapter Five,
Part H, however, would contravene the mandates to the Commission in the
Act.
Are specific offender characteristics already adequately addressed
in the Guidelines Manual? If not, how should the Commission amend the
Guidelines Manual to more adequately address specific offender
characteristics?
2. The Commission requests comment regarding five specific offender
characteristics in particular. Those characteristics, and the statutes
and policy statements currently addressing those characteristics, are
as follows:
(1) Age (28 U.S.C. 994(d)(1)), see Sec. 5H1.1 (Age).
(2) Mental and emotional condition to the extent that such
condition mitigates the defendant's culpability or to the extent that
such condition is otherwise plainly relevant (28 U.S.C. 994(d)(4)), see
Sec. 5H1.3 (Mental and Emotional Conditions).
(3) Physical condition, including drug dependence (28 U.S.C.
994(d)(5)), see Sec. 5H1.4 (Physical Condition, Including Drug or
Alcohol Dependence or Abuse; Gambling Addiction).
(4) Military, civic, charitable, or public service, employment-
related contributions, record of prior good works, see Sec. 5H1.11
(Military, Civic, Charitable, or Public Service; Employment-Related
Contributions; Record of Prior Good Works).
(5) Lack of guidance as a youth, see Sec. 5H1.12 (Lack of Guidance
as a Youth and Similar Circumstances).
A. In General
Are the guidelines adequate as they apply to these five specific
offender characteristics? If not, what amendments to the guidelines
should be made to address these specific offender characteristics?
B. Relevance to Decisions Regarding Prison and Probation
For each of these five specific offender characteristics, the
Commission requests comment regarding whether, and to what extent, the
characteristic is relevant to decisions regarding prison and probation.
In particular:
(1) Is the characteristic relevant in making the ``in/out''
decision, i.e., the decision whether to sentence the defendant to
prison or probation?
(2) Assuming the defendant is to be sentenced to prison, is the
characteristic relevant in deciding the length of imprisonment?
(3) Assuming the defendant is to be sentenced to probation, is the
characteristic relevant in deciding the length of probation, or the
conditions of probation?
For each of the decisions identified in (1), (2), and (3) above, if
the characteristic is relevant in making the decision, when is it
relevant, why is it relevant, what effect should it have, and how much
effect should it have? Are there categories of offenses, or categories
of offenders, for which the characteristic should be more relevant, or
less relevant? What criteria should be used to establish such
categories?
C. Use as Proxy for Forbidden Factors
As stated above, the Act specified that the guidelines and policy
statements must be ``entirely neutral'' as to race, sex, national
origin, creed, and socioeconomic status; these characteristics are
known as the ``forbidden'' factors. See 28 U.S.C. 994(d).
For each of these five specific offender characteristics, could the
characteristic be used as a proxy for one or more of the ``forbidden''
factors? If so, how should the Commission address that possibility,
while at the same time providing for consideration of the
characteristic when relevant?
3. The Commission also has separate requests for comment for each
of these five specific offender characteristics. The separate requests
are as follows:
A. Age
Section 5H1.1 (Age) generally provides that age (including youth)
is not ordinarily relevant in determining whether a departure is
warranted. Should the Commission revise this policy statement? If so,
how?
For example, should an offender's youth be a reason to decrease the
sentence to reflect a view that younger offenders are less accountable
for their actions, or a reason to increase the sentence to reflect a
view that younger offenders are more likely to recidivate? Should an
offender's advanced age be a reason to increase the sentence to reflect
a view that older offenders should be more mature and responsible, or a
reason to decrease the sentence to reflect a view that older offenders
are less likely to recidivate?
B. Mental and Emotional Conditions
Section 5H1.3 (Mental and Emotional Conditions) generally provides
that mental and emotional conditions are not ordinarily relevant in
determining whether a departure is warranted. Should the Commission
revise this policy statement? If so, how?
For example, should a mental or emotional condition be a reason to
increase the sentence (e.g., if the mental or emotional condition, such
as an antisocial personality disorder, makes the defendant a particular
danger to the community)? On the other hand, should a mental or
emotional condition be a reason to decrease the sentence (e.g., if the
mental or emotional condition could more effectively be treated outside
of prison)?
In a case in which the defendant's mental or emotional condition
was a factor in the commission of the offense, how should mental or
emotional condition interact with the policy statements regarding
diminished capacity, see Sec. 5K2.13 (Diminished Capacity), and
coercion and duress, see Sec. 5K2.12 (Coercion and Duress)? In
particular, in a case in which the defendant's mental or emotional
condition was a factor in the commission of the offense, but does not
meet the requirements of Sec. 5K2.13 and Sec. 5K2.12, when, if at
all, should the
[[Page 3531]]
mental or emotional condition be a reason for a departure?
The Commission has heard testimony that service members have been
returning from combat with traumatic brain injuries that cause them to
act out violently toward family members and others, or have been
returning with other mental or emotional conditions (such as post-
traumatic stress disorder). If such a service member commits a crime,
when, and to what extent, would a departure be warranted?
C. Physical Condition (Including Drug or Alcohol Dependence or Abuse;
Gambling Addiction)
Section 5H1.4 (Physical Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling Addiction) generally provides that
physical condition or appearance, including physique, is not ordinarily
relevant in determining whether a departure may be warranted. Should
the Commission revise this policy statement? If so, how?
For example, should a physical condition or addiction be a reason
to decrease the sentence (e.g., if the physical condition or addiction
could more effectively be treated outside of prison or if the physical
condition renders the offender so infirm that home confinement may be
sufficient)? Conversely, should a physical condition or addiction be a
reason to increase the sentence (e.g., if the addiction increases the
risk of recidivism)?
D. Military, Civic, Charitable, or Public Service; Employment-Related
Contributions; Record of Prior Good Works
Section 5H1.11 (Military, Civic, Charitable, or Public Service;
Employment-Related Contributions; Record of Prior Good Works) provides
that military, civic, charitable, or public service; employment-related
contributions; and similar prior good works are not ordinarily relevant
in determining whether a departure is warranted. Should the Commission
revise this policy statement? If so, how?
For example, should military service be a reason to decrease the
sentence (e.g., to reflect a view that an exemplary military record
reflects courage, loyalty, and personal sacrifice that a sentencing
court should take into account)? Conversely, should military service be
a reason to increase the sentence (e.g., to reflect a view that the
offender is a role model who ``should have known better'')?
Similarly, should civic or charitable contributions be a reason to
decrease the sentence to reflect the view that credit should be given
for past good deeds or that past good deeds predict that the defendant
will continue to add value to the community when not in prison? If so,
what level of contributions should be demonstrated before a decrease in
sentence is warranted?
E. Lack of Guidance as a Youth and Similar Circumstances
Section 5H1.12 (Lack of Guidance as a Youth and Similar
Circumstances) provides that lack of guidance as a youth and similar
circumstances indicating a disadvantaged upbringing are not relevant
grounds in determining whether a departure is warranted. Should the
Commission revise this policy statement? If so, how?
For example, should lack of guidance as a youth not be a reason to
decrease the sentence (e.g., to reflect a view that many or most
offenders may be able to demonstrate some lack of guidance or
disadvantaged upbringing)? Should physical abuse, emotional abuse, or
sexual abuse suffered as a child be a reason to decrease the sentence
under this policy statement or elsewhere in Chapter Five, Part H?
3. The Commission requests comment regarding what, if any,
conforming changes should be made to Chapter Five, Part K, of the
Guidelines Manual, or elsewhere in the Guidelines Manual, if the
Commission were to amend the policy statements applicable to the five
specific offender characteristics discussed above.
4. The Commission requests comment on when, if at all, the
collateral consequences of a defendant's status as a non-citizen may
warrant a downward departure. There are differences among the circuits
on this issue. Compare, e.g., United States v. Restrepo, 999 F.2d 640,
644 (2d Cir. 1993) (holding that none of the following collateral
consequences are a basis for departure: (1) The fact that an alien is
not eligible to be imprisoned in a lower-security facility or to
participate in certain prison programs; (2) the fact that an alien will
face deportation upon release from prison; and (3) the fact that an
alien, upon release from prison, will be civilly detained until
deportation), with United States v. Smith, 27 F.3d 649, 655 (D.C. Cir.
1994) (``[A] downward departure may be appropriate where the
defendant's status as a deportable alien is likely to cause a
fortuitous increase in the severity of his sentence.'').
The circuits appear to be in agreement, however, that the
defendant's status as a non-citizen is never a proper basis for
departure when the defendant is sentenced under the illegal reentry
guideline, Sec. 2L1.2 (Unlawfully Entering or Remaining in the United
States). See, e.g., United States v. Martinez-Carillo, 250 F.3d 1101,
1107 (7th Cir. 2001); United States v. Garay, 235 F.3d 230, 234 (5th
Cir. 2000).
Should the Commission amend the guidelines to address when, if at
all, a downward departure may be warranted on the basis of such
collateral consequences? If so, how?
5. The Commission requests comment on when, if at all, a downward
departure may be appropriate in an illegal reentry case sentenced under
Sec. 2L1.2 on the basis of ``cultural assimilation'', that is, the
defendant's cultural ties to the United States. Several circuits have
held that such a departure may be warranted. See, e.g., United States
v. Lipman, 133 F.3d 726, 730 (9th Cir. 1998); United States v.
Rodriguez-Montelongo, 263 F.3d 429, 433 (5th Cir. 2001); United States
v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir. 1998). Other
circuits, such as the First and Tenth Circuits, have declined to rule
on whether such a departure may be warranted. See, e.g., United States
v. Melendez-Torres, 420 F.3d 45, 51 (1st Cir. 2005); United States v.
Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006).
Should the Commission amend the guidelines to address when, if at
all, a downward departure may be warranted in an illegal reentry case
on the basis of ``cultural assimilation''? If so, how?
3. Application Instructions
Synopsis of Proposed Amendment: This proposed amendment amends
Sec. 1B1.1 (Application Instructions) in light of United States v.
Booker, 543 U.S. 220 (2005).
As explained more fully in Chapter One, Part A, Subpart 2
(Continuing Evolution and Role of the Guidelines) of the Guidelines
Manual, a district court is required to properly calculate and consider
the guidelines when sentencing. See 18 U.S.C. 3553(a)(4); Booker, 543
U.S. at 264 (``The district courts, while not bound to apply the
Guidelines, must * * * take them into account when sentencing.''); Rita
v. United States, 551 U.S. 338, 351 (2007) (stating that a district
court should begin all sentencing proceedings by correctly calculating
the applicable Guidelines range); Gall v. United States, 552 U.S. 38,
49 (2007) (``As a matter of administration and to secure nationwide
consistency, the Guidelines should be the starting point and the
initial benchmark.'').
After determining the guideline range, the district court should
refer to the Guidelines Manual and consider whether the case warrants a
departure.
[[Page 3532]]
`` `Departure' is a term of art under the Guidelines and refers only to
non-Guidelines sentences imposed under the framework set out in the
Guidelines.'' See Irizarry v. United States, 128 S.Ct. 2198, 2202
(2008). A ``variance''--i.e., a sentence outside the guideline range
other than as provided for in the Guidelines Manual--is considered only
after departures have been considered.
As the Fifth Circuit has explained: ``Post-Booker case law
recognizes three types of sentences under the new advisory sentencing
regime: (1) A sentence within a properly calculated Guideline range;
(2) a sentence that includes an upward or downward departure as allowed
by the Guidelines, which sentence is also a Guideline sentence; or (3)
a non-Guideline sentence which is either higher or lower than the
relevant Guideline sentence.'' United States v. Tzep-Mejia, 462 F.3d
522 (5th Cir. 2006) (internal footnote and citation omitted). On this
point most other circuits agree. See, e.g., United States v. Dixon, 449
F.3d 194, 203-4 (1st Cir. 2006) (court must consider ``any applicable
departures''); United States v. Selioutsky, 409 F.3d 114 (2d Cir. 2005)
(court must consider ``available departure authority''); United States
v. Jackson, 467 F.3d 834, 838 (3d Cir. 2006) (same); United States v.
Morehead, 437 F.3d 424, 433 (4th Cir. 2006) (departures ``remain an
important part of sentencing even after Booker''); United States v.
McBride, 434 F.3d 470 (6th Cir. 2006) (same); United States v. Hawk
Wing, 433 F.3d 622, 631 (8th Cir. 2006) (``the district court must
decide if a traditional departure is appropriate'', and after that must
consider a variance); United States v. Robertson, 568 F.3d 1203, 1210
(10th Cir. 2009) (district courts must continue to apply departures);
United States v. Jordi, 418 F.3d 1212 (11th Cir. 2005) (stating that
``the application of the guidelines is not complete until the
departures, if any, that are warranted are appropriately considered'').
But see United States v. Johnson, 427 F.3d 423 (7th Cir. 2006)
(departures ``obsolete'').
In short, the district court, in determining the appropriate
sentence in a particular case, must consider the properly calculated
guideline range, the grounds for departure provided in the policy
statements, and then the factors under 18 U.S.C. 3553(a). See Rita, 551
U.S. at 351. This has been described as a ``3-step process'':
First, because the Booker decision requires that courts consult
the sentencing guidelines, a sentencing court must calculate the
applicable guideline range in the customary fashion. Second, the
court should determine whether a departure from the guideline range
is consistent with the guidelines' policy statements and commentary.
Third, the court should evaluate whether a variance, i.e., a
sentence outside the advisory guideline range is warranted under the
authority of 18 U.S.C. 3553(a).
See United States Sentencing Commission, ``Final Report on the
Impact of United States v. Booker on Federal Sentencing'' (2006) at 42.
The proposed amendment follows the approach adopted by a majority
of circuits and structures Sec. 1B1.1 to reflect the three-step
process. As amended, subsection (a) addresses how to apply the
provisions in this manual to properly determine the kinds of sentence
and the guideline range. Subsection (b) addresses the need to consider
the policy statements and commentary to determine whether a departure
is warranted. Subsection (c) addresses the need to consider the
applicable factors under 18 U.S.C. 3553(a) in determining the
appropriate sentence. In addition, the proposed amendment amends the
Commentary to Sec. 1B1.1 to define the term ``variance''.
Proposed Amendment
Section 1B1.1 is amended by striking ``Except as specifically
directed, the provisions of this manual are to be applied in the
following order:'' and inserting the following:
``(a) The court shall determine the kinds of sentence and the
guideline range as set forth in the guidelines (see 18 U.S.C.
3553(a)(4)) by applying the provisions of this manual in the following
order, except as specifically directed:''; by redesignating
subdivisions (a) through (h) as (1) through (8), respectively; in
subdivision (4) (as so redesignated) by striking ``(a)'' and inserting
``(1)'', and by striking ``(c)'' and inserting ``(3)'';
By redesignating subdivision (i) as subsection (b) and, in that
subsection, by striking ``Refer to'' and inserting ``The court shall
then consider'', and by adding at the end ``See 18 U.S.C.
3553(a)(5).''; and
By adding at the end the following:
``(c) The court shall then determine the sentence (i.e., a sentence
within the guideline range, a departure, or a variance), considering
the applicable factors in 18 U.S.C. 3553(a) taken as a whole.''.
The Commentary to Sec. 1B1.1 captioned ``Application Notes'' is
amended in Note 1, in subparagraph (E)(i), by inserting ``as provided
for in Parts H and K of Chapter Five, Specific Offender Characteristics
and Departures, or any other policy statements or commentary in the
guidelines'' after ``guideline sentence''; and by adding at the end the
following:
``(M) `Variance' means imposition of a sentence other than as
provided in the guidelines, policy statements, and commentary of the
Guidelines Manual.''.
4. Recency
Synopsis of Proposed Amendment: In September 2009, the Commission
indicated that one of its policy priorities would be consideration of
miscellaneous guideline application issues, including ``examination of,
and possible guideline amendments relating to, the computation of
criminal history points under Sec. 4A1.1(e)''. See 74 FR 46478, 46479
(September 9, 2009). Subsection (e) of Sec. 4A1.1 (Criminal History
Category) is known as the ``recency'' provision. The Commission is
examining how the ``recency'' provision interacts with the ``status''
provision in subsection (d) of Sec. 4A1.1 and also how the ``recency''
provision interacts with other provisions regarding criminal history in
various Chapter Two offense guidelines.
Section 4A1.1 currently provides that if the instant offense was
committed while under another criminal justice sentence, 2 criminal
history points are added under subsection (d) for ``status''; if the
instant offense was committed less than two years after release from
imprisonment, or while in imprisonment or escape status, 2 points are
added under subsection (e) for ``recency''. If 2 points are added for
``status'' under (d), however, only 1 point is added for ``recency''
under (e). See Sec. 4A1.1 comment. (backg'd.) (``Because of the
potential overlap of (d) and (e), their combined impact is limited to
three points.'').
Under Sec. 4A1.1, a sentence for a single prior conviction may
count up to three times in the calculation of the Criminal History
Category (e.g., such a sentence could count under Sec. Sec. 4A1.1(a)
or (b), 4A1.1(d), and 4A1.1(e)). Additionally, the prior conviction can
increase the offense level determined under certain Chapter Two
guidelines (e.g., Sec. 2L1.2 (Unlawfully Entering or Remaining in the
United States)). Therefore, in a case in which the prior conviction
increases the Chapter Two offense level, the single prior conviction
may be counted four times in the determination of the applicable
guideline range.
The proposed amendment presents two options for amending Sec.
4A1.1 that would reduce the cumulative impact of ``recency''. Under
Option 1, ``recency'' points are eliminated for all offenders in all
cases; conforming changes to Sec. 4A1.2 (Definitions and Instructions
for Computing Criminal History) are also
[[Page 3533]]
made. Under Option 2, ``recency'' points are retained but are not
cumulative with ``status'' points; thus, in the case of an offender
eligible for both ``status'' points and ``recency'' points, the
combined impact is limited to 2 points rather than 3.
The proposed amendment also makes stylistic changes to Sec. 4A1.1
so that its subdivisions are referred to as ``subsections'' rather than
as ``items''.
Issues for comment are also provided that, in part, request comment
on whether the Commission should instead address the cumulative impact
of ``recency'' more narrowly, i.e., only for cases sentenced under
Chapter Two offense guidelines that increase the offense level based on
criminal history.
Proposed Amendment
[Option 1:
Section 4A1.1 is amended by striking ``items (a) through (f)'' and
inserting ``subsections (a) through (e); in subsection (c) by striking
``item'' and inserting ``subsection''; by striking subsection (e) and
redesignating subsection (f) as (e); and in subsection (e) (as so
redesignated) by striking ``item'' and inserting ``subsection''.
The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is
amended by striking ``item'' each place it appears and inserting
``subsection''; by striking Note 5 and redesignating Note 6 as Note 5;
and in Note 5 (as so redesignated) by striking ``(f)'' and inserting
``(e)'' each place it appears.
The Commentary to Sec. 4A1.1 captioned ``Background'' is amended
by striking ``Subdivisions'' and inserting ``Subsections''; by striking
``implements one measure of recency by adding'' and inserting ``adds'';
and by striking the paragraph that begins ``Section 4A1.1(e)''.
Section 4A1.2 is amended in subsection (a)(2) by striking ``(f)''
and inserting ``(e)''; in subsection (k) by striking subparagraph (A)
and by striking ``(B)''; in subsection (l) by striking ``(f)'' and
inserting ``(e)'', and by striking ``; Sec. 4A1.1(e) shall not
apply''; in subsection (n) by striking ``and (e)''; and in subsection
(p) by striking ``(f)'' and inserting ``(e)''.
The Commentary to Sec. 4A1.2 captioned ``Application Notes'' is
amended in Note 12(A) by striking ``subdivision'' and inserting
``subsection''.]
[Option 2:
Section 4A1.1(e) is amended by striking ``If 2 points are added for
item (d), add only 1 point for this item'' and inserting ``If
subsection (d) applies, do not apply this subsection''.
The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is
amended in Note 5 by striking ``if two points are added under Sec.
4A1.1(d), only one point is added under Sec. 4A1.1(e)'' and inserting
``if Sec. 4A1.1(d) applies, do not apply Sec. 4A1.1(e)''.
The Commentary to Sec. 4A1.1 captioned ``Background'' is amended
in the paragraph that begins ``Section 4A1.1(e)'' by striking ``three''
and inserting ``two''; and by striking the sentence that begins
``However,''.]
Issues for Comment
1. The Commission seeks comment on whether the Commission should
reduce the cumulative impact of ``recency'' points in Sec. 4A1.1(e),
when they apply in combination with ``status'' points in Sec. 4A1.1(d)
or in combination with provisions regarding criminal history in Chapter
Two.
An example of such a provision is the specific offense
characteristic in subsection (b)(1) of Sec. 2L1.2 (Unlawfully Entering
or Remaining in the United States), which provides an enhancement of 4
to 16 levels if the defendant previously was deported, or unlawfully
remained in the United States, after a conviction for a certain type of
offense. Other examples can be found in the alternative base offense
levels in Sec. Sec. 2K2.1(a) and 2D1.1(a), which provide a heightened
base offense level if the defendant had one or more prior convictions
for certain types of offenses; the ``pattern of activity'' enhancement
in Sec. 2S1.3(b)(2), which provides an enhancement based on a pattern
of criminal activity; and the enhancements in Sec. Sec. 2N2.1(b)(1)
and 2K2.6(b)(1), which provide an enhancement based on a past
conviction.
If the Commission were to retain ``recency'' in subsection (e) of
Sec. 4A1.1, should the Commission amend the guidelines to specify
that, in a case in which a conviction is used to increase the Chapter
Two offense level, ``recency'' points shall not apply?
A. Should the Commission Reduce the Impact in Cases Sentenced Under
Sec. 2L1.2 Only?
With regard to the specific offense characteristic in Sec.
2L1.2(b)(1), should the Commission insert an application note in the
commentary to Sec. 4A1.1 and a corresponding, parallel application
note in the commentary to Sec. 2L1.2? One approach for such an
application note, which would apply only if the Chapter Two provision
and the ``recency'' provision were both derived from the same
conviction, would be the following:
``Interaction with Sec. 2L1.2(b)(1).--If a conviction is used as a
basis for an enhancement under Sec. 2L1.2(b)(1), do not use the
sentence resulting from that conviction as a basis for adding points
for `recency' under subsection (e).''
Another approach for such an application note, which would apply
even if the Chapter Two provision and the ``recency'' provision were
derived from different convictions, would be the following:
``Interaction with Sec. 2L1.2(b)(1).--If Sec. 2L1.2(b)(1)
applies, do not apply subsection (e).''
Should the Commission follow one of these approaches? Is there a
different approach the Commission should follow?
B. Should the Commission Reduce the Impact in Cases Under Other
Specific Guidelines?
Should such an application note also be provided for a case in
which (1) a conviction is used as a basis for an alternative base
offense level, such as in Sec. Sec. 2K2.1(a) and 2D1.1(a); or (2) a
conviction is used as a basis for a pattern of activity enhancement,
such as in Sec. 2S1.3(b)(2); or (3) a conviction is otherwise used as
a basis for an enhancement, such as in Sec. Sec. 2N2.1(b)(1) and
2K2.6(b)(1)? Are there other provisions in Chapter Two for which such
an application note should be provided?
5. Hate Crimes
Synopsis of Proposed Amendment: This proposed amendment responds to
the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act
(division E of Pub. L. 111-84) (the ``Act''). With regard to hate
crimes, the Act created a new offense and amended a 1994 congressional
directive to the Commission. The Act also created a second new offense,
relating to attacking a United States serviceman on account of his or
her service.
The new hate crimes offense, 18 U.S.C. 249 (Hate crime acts), makes
it unlawful, whether or not acting under color of law, to willfully
cause bodily injury to any person or, through the use of fire, a
firearm, a dangerous weapon, or an explosive or incendiary device,
attempt to cause bodily injury to any person, because of the actual or
perceived race, color, religion, national origin, gender, sexual
orientation, gender identity, or disability of any person. A person who
violates section 249 is subject to imprisonment for not more than 10
years (or, if the offense includes kidnapping, aggravated sexual abuse,
or an attempt to kill, or if death results from the offense, for any
term of
[[Page 3534]]
years or for life). The proposed amendment amends Appendix A (Statutory
Index) to reference the new offense to Sec. 2H1.1 (Offenses Involving
Individual Rights).
The Act also amended section 280003 of the Violent Crime Control
and Law Enforcement Act of 1994 (Pub. L. 103-322; 28 U.S.C. 994 note),
which contains a congressional directive to the Commission regarding
hate crimes that the Commission implemented in subsection (a) of Sec.
3A1.1 (Hate Crime Motivation or Vulnerable Victim). The Act expanded
the definition of ``hate crime'' in section 280003(a) to include crimes
motivated by actual or perceived ``gender identity'', which has the
effect of expanding the scope of the congressional directive in section
280003(b) to require the Commission to provide an enhancement for
crimes motivated by actual or perceived ``gender identity''. To reflect
that congressional action, the proposed amendment amends Sec. 3A1.1(a)
to include crimes motivated by actual or perceived ``gender identity'',
and makes conforming changes to Sec. Sec. 2H1.1 and 3A1.1.
In addition, the proposed amendment contains a bracketed proposal
to strike the special instruction in Sec. 3A1.1(c), which states that
the 3-level enhancement in Sec. 3A1.1(a) shall not apply if the 6-
level enhancement in Sec. 2H1.1(b) applies. Currently, the 3-level
enhancement in Sec. 3A1.1(a) applies if the offense was a hate crime,
i.e., was motivated by the actual or perceived race, color, religion,
national origin, ethnicity, gender, disability, or sexual orientation
of any person; the 6-level enhancement in Sec. 2H1.1(b) applies if (A)
the defendant was a public official at the time of the offense, or (B)
the offense was committed under color of law. By striking the special
instruction in Sec. 3A1.1(c), the proposed amendment would allow both
enhancements to operate, if applicable in a particular case. Conforming
changes to Sec. Sec. 2H1.1 and 3A1.1 are also bracketed.
The second new offense, 18 U.S.C. 1389 (Prohibition on attacks on
United States servicemen on account of service), makes it unlawful to
knowingly assault or batter a United States serviceman or an immediate
family member of a United States serviceman, or to knowingly destroy or
injure the property of such serviceman or immediate family member, on
the account of the military service of that serviceman or status of
that individual as a United States serviceman. A person who violates
section 1389 is subject to imprisonment for not more than 2 years (in
the case of a simple assault, or damage of not more than $500), for not
more than 5 years (in the case of damage of more than $500), or for not
less than 6 months nor more than 10 years (in the case of a battery, or
an assault resulting in bodily injury). The proposed amendment amends
Appendix A (Statutory Index) to reference the new offense to Sec. Sec.
2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault) and 2B1.1 (Theft,
Property Destruction, and Fraud). The Commission anticipates that the
official victim adjustment in Sec. 3A1.2 (Official Victim) would apply
in such a case.
Proposed Amendment
The Commentary to Sec. 2H1.1 captioned ``Statutory Provisions'' is
amended by inserting ``249,'' after ``248,''.
The Commentary to Sec. 2H1.1 captioned ``Application Notes'' is
amended in Note 4 by inserting ``gender identity,'' after ``gender,''.
[The Commentary to Sec. 2H1.1 captioned ``Application Notes'' is
amended in Note 4 by striking the sentence that begins ``An
adjustment'' and all that follows through ``See Sec. 3A1.1(c).''.]
Section 3A1.1 is amended in subsection (a) by inserting ``gender
identity,'' after ``gender,''.
[Section 3A1.1 is amended by striking subsection (c).]
[The Commentary to Sec. 3A1.1 captioned ``Application Notes'' is
amended in Note 1 by striking the sentence that begins ``Moreover,''.]
The Commentary to Sec. 3A1.1 captioned ``Application Notes'' is
amended in Note 3 by inserting ``gender identity,'' after ``gender,'';
and by adding after Note 4 the following:
``5. For purposes of this guideline, `gender identity' means actual
or perceived gender-related characteristics. See 18 U.S.C. Sec.
249(c)(4).''.
The Commentary to Sec. 3A1.1 captioned ``Background'' is amended
in the first paragraph by adding at the end the following: ``In section
4703(a) of Public Law 111-84, Congress broadened the scope of that
directive to include gender identity; to reflect that congressional
action, the Commission has broadened the scope of this enhancement to
include gender identity.''.
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 18 U.S.C. 247 the following:
``18 U.S.C. Sec. 249 2H1.1'';
and by inserting after the line referenced to 18 U.S.C. 1369 the
following:
``18 U.S.C. Sec. 1389 2A2.2, 2A2.3, 2B1.1''.
6. Organizational Guidelines
Synopsis of Proposed Amendment: This proposed amendment makes
several changes to Chapter Eight of the Guidelines Manual regarding the
sentencing of organizations.
First, the proposed amendment amends the Commentary to Sec. 8B2.1
(Effective Compliance and Ethics Program) to clarify the remediation
efforts required to satisfy subsection (b)(7) (the seventh requirement
for an effective compliance and ethics program). The proposed amendment
adds a new application note that describes the reasonable steps to
respond appropriately after criminal conduct is detected, including
remedying the harm caused to identifiable victims and payment of
restitution. Notably, restitution is already a significant remediation
step considered under current Department of Justice guidelines in
determining whether to prosecute business organizations. See U.S.
Attorney's Manual, Chapter 9-28.300(A)(6) and Chapter 9-28.900(A) &
(B).
Second, the proposed amendment amends Sec. 8D1.4 (Recommended
Conditions of Probation--Organizations) (Policy Statement) to augment
and simplify the recommended conditions of probation for organizations.
The policy statement currently distinguishes between conditions of
probation imposed solely to enforce a monetary penalty (addressed in
subsection (b)) and conditions of probation imposed for any other
reason (addressed in subsection (c)). Under the proposed amendment,
subsections (b) and (c) are consolidated; accordingly, when a court
determines there is a need for organizational probation, all
conditional probation terms are available for consideration by the
court. The proposed amendment also inserts specific language regarding
the engagement of an independent, properly qualified, corporate
monitor. This language reflects current governmental policy and best
practices with regard to the appointment of such independent corporate
monitors. Finally, the proposed amendment inserts specific language
requiring the organization to submit to a reasonable number of regular
or unannounced examinations of facilities subject to probation
supervision.
In addition, the proposed amendment contains, in brackets, two
proposed additions to the Commentary of Sec. 8B2.1. The first
bracketed addition amends Application Note 3 to include a new paragraph
which clarifies what is expected of high-level personnel and
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substantial authority personnel. Such personnel ``should be aware of
the organization's document retention policies and conform any document
retention policy to meet the goals of an effective compliance program
under the guidelines and to avoid any liability under the law''.
The second bracketed addition amends Application Note 6 to clarify
that when an organization periodically assesses the risk that criminal
conduct will occur, the ``nature and operations of the organization
with regard to particular ethics and compliance functions'' should be
included among the other matters assessed. This bracketed addition also
states, as an example, that ``all employees should be aware of the
organization's document retention policy or policies and conform any
document retention policy to meet the goals of an effective compliance
program under the guidelines and to avoid any liability under the
law''.
Finally, the proposed amendment makes technical and conforming
changes.
An issue for comment is also included on whether to encourage
direct reporting to the board by responsible compliance personnel by
allowing an organization with such a structure to benefit from a three
level mitigation of the culpability score, even if high-level personnel
are involved in the criminal conduct.
Proposed Amendment
[The Commentary to Sec. 8B2.1 captioned ``Application Notes'' is
amended in Note 3 by adding at the end the following:
``Both high-level personnel and substantial authority personnel
should be aware of the organization's document retention policies
and conform any such policy to meet the goals of an effective
compliance program under the guidelines and to reduce the risk of
liability under the law (e.g. 18 U.S.C. Sec. 1519; 18 U.S.C. Sec.
1512(c)).'';
and in Note 6(A) by adding at the end the following:
``(iv) The nature and operations of the organization with regard
to particular ethics and compliance functions. For example, all
employees should be aware of the organization's document retention
policies and conform any such policy to meet the goals of an
effective compliance program under the guidelines and to reduce the
risk of liability under the law (e.g. 18 U.S.C. Sec. 1519; 18
U.S.C. Sec. 1512(c)).]
The Commentary to Sec. 8B2.1 captioned ``Application Notes'' is
amended by redesignating Note 6 as Note 7, and by inserting after Note
5 the following:
``6. Application of Subsection (b)(7).--The seventh minimal
requirement for an effective compliance and ethics program provides
guidance on the reasonable steps that an organization should take
after detection of criminal conduct. First, the organization should
respond appropriately to the criminal conduct. In the event the
criminal conduct has an identifiable victim or victims the
organization should take reasonable steps to provide restitution and
otherwise remedy the harm resulting from the criminal conduct. Other
appropriate responses may include self-reporting, cooperation with
authorities, and other forms of remediation. Second, to prevent
further similar criminal conduct, the organization should assess the
compliance and ethics program and make modifications necessary to
ensure the program is more effective. The organization may take the
additional step of retaining an independent monitor to ensure
adequate assessment and implementation of the modifications.''.
Section 8D1.4 is amended by striking subsections (b) and (c) and
inserting the following:
``(b) If probation is imposed under Sec. 8D1.1, the following
conditions may be appropriate:
(1) The organization shall develop and submit to the court an
effective compliance and ethics program consistent with Sec. 8B2.1
(Effective Compliance and Ethics Program). The organization shall
include in its submission a schedule for implementation of the
compliance and ethics program.
(2) Upon approval by the court of a program referred to in
subdivision (1), the organization shall notify its employees and
shareholders of its criminal behavior and its program referred to in
subdivision (1). Such notice shall be in a form prescribed by the
court.
(3) The organization shall be required to retain an independent
corporate monitor agreed on by the parties or, in the absence of
such an agreement, selected by the court. The independent corporate
monitor must have appropriate qualifications and no conflict of
interest in the case. The scope of the independent corporate
monitor's role shall be approved by the court. Compensation to and
costs of any independent corporate monitor shall be paid by the
organization.
(4) The organization shall make periodic submissions to the
court or probation officer, at intervals specified by the court, (A)
reporting on the organization's financial condition and results of
business operations, and accounting for the disposition of all funds
received, and (B) reporting on the organization's progress in
implementing the program referred to in subdivision (1). Among other
things, such reports shall disclose any criminal prosecution, civil
litigation, or administrative proceeding commenced against the
organization, or any investigation or formal inquiry by governmental
authorities of which the organization learned since its last report.
(5) The organization shall be required to notify the court or
probation officer immediately upon learning of (A) any material
adverse change in its business or financial condition or prospects,
or (B) the commencement of any bankruptcy proceeding, major civil
litigation, criminal prosecution, or administrative proceeding
against the organization, or any investigation or formal inquiry by
governmental authorities regarding the organization.
(6) The organization shall submit to: (A) A reasonable number of
regular or unannounced examinations of its books and records at
appropriate business premises by the probation officer, experts
engaged by the court, or independent corporate monitor; (B) a
reasonable number of regular or unannounced examinations of
facilities subject to probation supervision; and (C) interrogation
of knowledgeable individuals within the organization. Compensation
to and costs of any experts engaged by the court or independent
corporate monitors shall be paid by the organization.
(7) The organization shall be required to make periodic
payments, as specified by the court, in