Sentencing Guidelines for United States Courts, 3525-3539 [2010-970]

Agencies

• United States Sentencing Commission

[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]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments to sentencing guidelines, policy 
statements, and commentary. Request for public comment, including 
public comment regarding retroactive application of any of the proposed 
amendments. Notice of public hearing.

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SUMMARY: 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

[[Page 3535]]

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