Sentencing Guidelines for United States Courts, 27388-27398 [2010-11552]
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Federal Register / Vol. 75, No. 93 / Friday, May 14, 2010 / Notices
Authority: 28 U.S.C. 994(a), (o), and (p);
USSC Rule of Practice and Procedure 4.1.
UNITED STATES SENTENCING
COMMISSION
William K. Sessions III,
Chair.
Sentencing Guidelines for United
States Courts
United States Sentencing
Commission.
AGENCY:
ACTION: Notice of submission to
Congress of amendments to the
sentencing guidelines effective
November 1, 2010.
SUMMARY: Pursuant to its authority
under 28 U.S.C. 994(p), the Commission
has promulgated amendments to the
sentencing guidelines, policy
statements, commentary, and statutory
index. This notice sets forth the
amendments and the reason for each
amendment.
The Commission has specified
an effective date of November 1, 2010,
for the amendments set forth in this
notice.
DATES:
FOR FURTHER INFORMATION CONTACT:
Michael Courlander, Public Affairs
Officer, 202–502–4597. The
amendments set forth in this notice also
may be accessed through the
Commission’s Web site at https://
www.ussc.gov.
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 sentencing
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 generally submits guideline
amendments to Congress pursuant to 28
U.S.C. 994(p) not later than the first day
of May each year. Absent action of
Congress to the contrary, submitted
amendments become effective by
operation of law on the date specified
by the Commission (generally November
1 of the year in which the amendments
are submitted to Congress).
Notice of proposed amendments was
published in the Federal Register on
January 21, 2010 (see 75 FR 3525). The
Commission held a public hearing on
the proposed amendments in
Washington, DC, on March 17, 2010. On
April 29, 2010, the Commission
submitted these amendments to
Congress and specified an effective date
of November 1, 2010.
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SUPPLEMENTARY INFORMATION:
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1. Amendment: Chapter Five, Part A,
is amended in the Sentencing Table by
redesignating Zones A, B, C, and D (as
designated by Amendment 462, see
USSG Appendix C, Amendment 462
(effective November 1, 1992)) as follows:
Zone A (containing all guideline ranges
having a minimum of zero months);
Zone B (containing all guideline ranges
having a minimum of at least one but
not more than nine months); Zone C
(containing all guideline ranges having
a minimum of at least ten but not more
than twelve months); and Zone D
(containing all guideline ranges having
a minimum of fifteen months or more).
The Commentary to § 5B1.1 captioned
‘‘Application Notes’’ is amended in Note
1(b) by striking ‘‘six’’ and inserting
‘‘nine’’; and in Note 2 by striking ‘‘eight’’
and inserting ‘‘ten’’.
The Commentary to § 5C1.1 captioned
‘‘Application Notes’’ is amended in Note
3 in the first paragraph by striking ‘‘six’’
and inserting ‘‘nine’’; in Note 4 by
striking ‘‘eight, nine, or ten months’’ and
inserting ‘‘ten or twelve months’’; by
striking ‘‘8–14’’ and inserting ‘‘10–16’’
both places it appears; by striking
‘‘sentence of four’’ and inserting
‘‘sentence of five’’ both places it appears;
by striking ‘‘four’’ before ‘‘months
community’’and inserting ‘‘five’’; by
striking ‘‘five’’ after ‘‘and a sentence of’’
and inserting ‘‘ten’’; by striking Note 6
and inserting the following:
‘‘6. There may be cases in which a
departure from the sentencing options
authorized for Zone C of the Sentencing
Table (under which at least half the
minimum term must be satisfied by
imprisonment) to the sentencing options
authorized for Zone B of the Sentencing
Table (under which all or most of the
minimum term may be satisfied by
intermittent confinement, community
confinement, or home detention instead of
imprisonment) is appropriate to accomplish
a specific treatment purpose. Such a
departure should be considered only in cases
where the court finds that (A) the defendant
is an abuser of narcotics, other controlled
substances, or alcohol, or suffers from a
significant mental illness, and (B) the
defendant’s criminality is related to the
treatment problem to be addressed.
In determining whether such a departure is
appropriate, the court should consider,
among other things, (1) the likelihood that
completion of the treatment program will
successfully address the treatment problem,
thereby reducing the risk to the public from
further crimes of the defendant, and (2)
whether imposition of less imprisonment
than required by Zone C will increase the
risk to the public from further crimes of the
defendant.
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Examples: The following examples both
assume the applicable guideline range is 12–
18 months and the court departs in
accordance with this application note. Under
Zone C rules, the defendant must be
sentenced to at least six months
imprisonment. (1) The defendant is a
nonviolent drug offender in Criminal History
Category I and probation is not prohibited by
statute. The court departs downward to
impose a sentence of probation, with twelve
months of intermittent confinement,
community confinement, or home detention
and participation in a substance abuse
treatment program as conditions of
probation. (2) The defendant is convicted of
a Class A or B felony, so probation is
prohibited by statute (see § 5B1.1(b)). The
court departs downward to impose a
sentence of one month imprisonment, with
eleven months in community confinement or
home detention and participation in a
substance abuse treatment program as
conditions of supervised release.’’
In Note 7 by striking the last sentence;
in Note 8 by striking ‘‘twelve’’ and
inserting ‘‘15’’; and by redesignating
Note 8 as Note 9 and inserting after Note
7 the following:
‘‘8. In a case in which community
confinement in a residential treatment
program is imposed to accomplish a specific
treatment purpose, the court should consider
the effectiveness of the residential treatment
program.’’
Reason for Amendment: This
amendment is a two-part amendment
expanding the availability of
alternatives to incarceration. The
amendment provides a greater range of
sentencing options to courts with
respect to certain offenders by
expanding Zones B and C of the
Sentencing Table by one level each and
addresses cases in which a departure
from imprisonment to an alternative to
incarceration (such as intermittent
confinement, community confinement,
or home confinement) may be
appropriate to accomplish a specific
treatment purpose.
The amendment is a result of the
Commission’s continued multi-year
study of alternatives to incarceration.
The Commission initiated this study in
recognition of increased interest in
alternatives to incarceration by all three
branches of government and renewed
public debate about the size of the
federal prison population and the need
for greater availability of alternatives to
incarceration for certain nonviolent first
offenders. See generally 28 U.S.C.
994(g), (j).
As part of the study, the Commission
held a two-day national symposium at
which the Commission heard from
experts on alternatives to incarceration,
including federal and state judges,
congressional staff, professors of law
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and the social sciences, corrections and
alternative sentencing practitioners and
specialists, federal and state prosecutors
and defense attorneys, prison officials,
and others involved in criminal justice.
See United States Sentencing
Commission, Symposium on
Alternatives to Incarceration (July
2008). In considering the amendment,
the Commission also reviewed federal
sentencing data, public comment and
testimony, recent scholarly literature,
current federal and state practices, and
feedback in various forms from federal
judges.
First, the amendment expands Zones
B and C of the Sentencing Table in
Chapter Five. Specifically, it expands
Zone B by one level for each Criminal
History Category (taking this area from
Zone C), and expands Zone C by one
level for each Criminal History Category
(taking this area from Zone D).
Accordingly, under the amendment,
defendants in Zone C with an applicable
guideline range of 8–14 months or 9–15
months are moved to Zone B, and
defendants in Zone D with an
applicable guideline range of 12–18
months are moved to Zone C.
Conforming changes also are made to
§§ 5B1.1 (Imposition of a Term of
Probation) and 5C1.1. In considering
this one-level expansion, the
Commission observed that
approximately 42 percent of the Zone C
offenders covered by the amendment
and approximately 52 percent of the
Zone D offenders covered by the
amendment already receive sentences
below the applicable guideline range.
The Commission estimates that of the
71,054 offenders sentenced in fiscal year
2009 for which complete sentencing
guideline application information is
available, 1,565 offenders in Zone C, or
2.2 percent, would have been in Zone B
of the Sentencing Table under the
amendment, and 2,734 offenders in
Zone D, or 3.8 percent, would have been
in Zone C. Not all of these offenders
would have been eligible for an
alternative to incarceration, however,
because many were non-citizens who
may have been subject to an
immigration detainer and some were
statutorily prohibited from being
sentenced to a term of probation, see,
e.g., 18 U.S.C. 3561(a)(1) (prohibiting a
defendant convicted of a Class A or
Class B felony from being sentenced to
a term of probation).
As a further reason for the zone
expansion, Commission data indicate
that courts often sentence offenders in
Zone D with an applicable guideline
range of 12–18 months to a term of
imprisonment of 12 months and one day
for the specific purpose of making such
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offenders eligible for credit for
satisfactory behavior while in prison.
See 18 U.S.C. 624(b). For such an
offender, assuming the maximum ‘‘good
time credit’’ is earned, the sentence
effectively becomes approximately ten
and one-half months. Given that prior to
the amendment the highest guideline
range in Zone C was 10–16 months, the
Commission determined that offenders
in Zone D with an applicable guideline
range of 12–18 months, many of whom
effectively serve a sentence at the lower
end of the highest Zone C sentencing
range, should be included in Zone C.
Second, the amendment clarifies and
illustrates certain cases in which a
departure may be appropriate to
accomplish a specific treatment
purpose. Specifically, it amends an
existing departure provision at § 5C1.1
(Imposition of a Term of Imprisonment),
Application Note 6. As amended, the
application note states that a departure
from the sentencing options authorized
for Zone C of the Sentencing Table to
accomplish a specific treatment purpose
should be considered only in cases
where the court finds that (A) the
defendant is an abuser of narcotics,
other controlled substances, or alcohol,
or suffers from a significant mental
illness, and (B) the defendant’s
criminality is related to the treatment
problem to be addressed.
Under the application note as
amended, the court may depart from the
sentencing options authorized for Zone
C (under which at least half the
minimum term must be satisfied by
imprisonment) to the sentencing options
authorized for Zone B (under which all
or most of the minimum term may be
satisfied by intermittent confinement,
community confinement, or home
detention instead of imprisonment) to
accomplish a specific treatment
purpose. The application note also
provides that, in determining whether
such a departure is appropriate, the
court should consider, among other
things, two factors relating to public
safety: (1) The likelihood that
completion of the treatment program
will successfully address the treatment
problem, thereby reducing the risk to
the public from further crimes of the
defendant, and (2) whether imposition
of less imprisonment than required by
Zone C will increase the risk to the
public from further crimes of the
defendant. Some public comment,
testimony, and research suggested that
successful completion of treatment
programs may reduce recidivism rates
and that, for some defendants,
confinement at home or in the
community instead of imprisonment
may better address both the defendant’s
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need for treatment and the need to
protect the public. Accordingly, the
Commission amended the application
note to clarify the criteria and to provide
examples of such cases.
The amendment also makes two other
changes to the Commentary to § 5C1.1
regarding the factors to be considered in
determining whether to impose an
alternative to incarceration. The
amendment adds an application note
providing that, in a case in which
community confinement in a residential
treatment program is imposed to
accomplish a specific treatment
purpose, the court should consider the
effectiveness of the treatment program.
The amendment also deletes as
unnecessary the second sentence of
Application Note 7.
2. Amendment: Chapter Five, Part H,
is amended in the Introductory
Commentary by striking the first
paragraph and inserting the following:
‘‘This Part addresses the relevance of
certain specific offender characteristics in
sentencing. The Sentencing Reform Act (the
‘Act’) contains several provisions regarding
specific offender characteristics:
First, the Act directs the Commission to
ensure that the guidelines and policy
statements ‘are entirely neutral’ as to five
characteristics—race, sex, national origin,
creed, and socioeconomic status. See 28
U.S.C. 994(d).
Second, 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 aspects 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).
Third, 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
skills; employment record; family ties and
responsibilities; and community ties. See 28
U.S.C. 994(e).
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).
Specific offender characteristics are
taken into account in the guidelines in
several ways. One important specific
offender characteristic is the defendant’s
criminal history, see 28 U.S.C.
994(d)(10), which is taken into account
in the guidelines in Chapter Four
(Criminal History and Criminal
Livelihood). See § 5H1.8 (Criminal
History). Another specific offender
characteristic in the guidelines is the
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degree of dependence upon criminal
history for a livelihood, see 28 U.S.C.
994(d)(11), which is taken into account
in Chapter Four, Part B (Career
Offenders and Criminal Livelihood). See
§ 5H1.9 (Dependence upon Criminal
Activity for a Livelihood). Other specific
offender characteristics are accounted
for elsewhere in this manual. See, e.g.,
§§ 2C1.1(a)(1) and 2C1.2(a)(1) (providing
alternative base offense levels if the
defendant was a public official); 3B1.3
(Abuse of Position of Trust or Use of
Special Skill); and 3E1.1 (Acceptance of
Responsibility).
The Supreme Court has emphasized
that the advisory guideline system
should ‘continue to move sentencing in
Congress’ preferred direction, helping to
avoid excessive sentencing disparities
while maintaining flexibility sufficient
to individualize sentences where
necessary.’ See United States v. Booker,
543 U.S. 220, 264–65 (2005). Although
the court must consider ‘the history and
characteristics of the defendant’ among
other factors, see 18 U.S.C. 3553(a), in
order to avoid unwarranted sentencing
disparities the court should not give
them excessive weight. Generally, the
most appropriate use of specific
offender characteristics is to consider
them not as a reason for a sentence
outside the applicable guideline range
but for other reasons, such as in
determining the sentence within the
applicable guideline range, the type of
sentence (e.g., probation or
imprisonment) within the sentencing
options available for the applicable
Zone on the Sentencing Table, and
various other aspects of an appropriate
sentence. To avoid unwarranted
sentencing disparities among
defendants with similar records who
have been found guilty of similar
conduct, see 18 U.S.C. 3553(a)(6), 28
U.S.C. 991(b)(1)(B), the guideline range,
which reflects the defendant’s criminal
conduct and the defendant’s criminal
history, should continue to be ‘the
starting point and the initial
benchmark.’ Gall v. United States, 552
U.S. 38, 49 (2007).
Accordingly, the purpose of this Part
is to provide sentencing courts with a
framework for addressing specific
offender characteristics in a reasonably
consistent manner. Using such a
framework in a uniform manner will
help ‘secure nationwide consistency,’
see Gall v. United States, 552 U.S. 38,
49 (2007), ‘avoid unwarranted
sentencing disparities,’ see 28 U.S.C.
991(b)(1)(B), 18 U.S.C. 3553(a)(6),
‘provide certainty and fairness,’ see 28
U.S.C. 991(b)(1)(B), and ‘promote
respect for the law,’ see 18 U.S.C.
3553(a)(2)(A).
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This Part allocates specific offender
characteristics into three general
categories.
In the first category are specific
offender characteristics the
consideration of which Congress has
prohibited (e.g., § 5H1.10 (Race, Sex,
National Origin, Creed, Religion, and
Socio-Economic Status)) or that the
Commission has determined should be
prohibited.
In the second category are specific
offender characteristics that Congress
directed the Commission to take into
account in the guidelines only to the
extent that they have relevance to
sentencing. See 28 U.S.C. 994(d). For
some of these, the policy statements
indicate that these characteristics may
be relevant in determining whether a
sentence outside the applicable
guideline range is warranted (e.g., age;
mental and emotional condition;
physical condition). These
characteristics may warrant a sentence
outside the applicable guideline range if
the characteristic, individually or in
combination with other such
characteristics, is present to an unusual
degree and distinguishes the case from
the typical cases covered by the
guidelines. These specific offender
characteristics also may be considered
for other reasons, such as in
determining the sentence within the
applicable guideline range, the type of
sentence (e.g., probation or
imprisonment) within the sentencing
options available for the applicable
Zone on the Sentencing Table, and
various other aspects of an appropriate
sentence.’’; in the second paragraph by
striking ‘‘The Commission has
determined that certain circumstances’’
and inserting the following: ‘‘In the third
category are specific offender
characteristics that Congress directed
the Commission to ensure are reflected
in the guidelines and policy statements
as generally inappropriate in
recommending a term of imprisonment
or length of a term of imprisonment. See
28 U.S.C. 994(e). The policy statements
indicate that these characteristics’’; by
striking ‘‘or to the determination of’’ and
inserting ‘‘, the type of sentence (e.g.,
probation or imprisonment) within the
sentencing options available for the
applicable Zone on the Sentencing
Table, or’’; by striking ‘‘incidents’’ and
inserting ‘‘aspects’’; and by striking the
last paragraph and inserting the
following:
‘‘As with the other provisions in this
manual, these policy statements ‘are
evolutionary in nature’. See Chapter One,
Part A, Subpart 2 (Continuing Evolution and
Role of the Guidelines); 28 U.S.C. 994(o). The
Commission expects, and the Sentencing
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Reform Act contemplates, that continuing
research, experience, and analysis will result
in modifications and revisions.
The nature, extent, and significance of
specific offender characteristics can involve
a range of considerations. The Commission
will continue to provide information to the
courts on the relevance of specific offender
characteristics in sentencing, as the
Sentencing Reform Act contemplates. See,
e.g., 28 U.S.C. 995(a)(12)(A) (the Commission
serves as a ‘clearinghouse and information
center’ on federal sentencing). Among other
things, this may include information on the
use of specific offender characteristics,
individually and in combination, in
determining the sentence to be imposed
(including, where available, information on
rates of use, criteria for use, and reasons for
use); the relationship, if any, between
specific offender characteristics and (A) the
‘forbidden factors’ specified in 28 U.S.C.
994(d) and (B) the ‘discouraged factors’
specified in 28 U.S.C. 994(e); and the
relationship, if any, between specific
offender characteristics and the statutory
purposes of sentencing.’’
Section 5H1.1 is amended by striking
the first sentence and inserting the
following:
‘‘Age (including youth) may be relevant in
determining whether a departure is
warranted, if considerations based on age,
individually or in combination with other
offender characteristics, are present to an
unusual degree and distinguish the case from
the typical cases covered by the guidelines.’’
Section 5H1.3 is amended by striking
the first paragraph and inserting the
following:
‘‘Mental and emotional conditions may be
relevant in determining whether a departure
is warranted, if such conditions, individually
or in combination with other offender
characteristics, are present to an unusual
degree and distinguish the case from the
typical cases covered by the guidelines. See
also Chapter Five, Part K, Subpart 2 (Other
Grounds for Departure).
In certain cases a downward departure may
be appropriate to accomplish a specific
treatment purpose. See § 5C1.1, Application
Note 6.’’
Section 5H1.4 is amended in the first
paragraph by striking the first sentence
and inserting the following: ‘‘Physical
condition or appearance, including
physique, may be relevant in
determining whether a departure is
warranted, if the condition or
appearance, individually or in
combination with other offender
characteristics, is present to an unusual
degree and distinguishes the case from
the typical cases covered by the
guidelines.’’; in the second sentence by
striking ‘‘However, an’’ and inserting
‘‘An’’; in the second paragraph by
inserting ‘‘ordinarily’’ after ‘‘or abuse’’; in
the last sentence by striking
‘‘supervisory body’’ and inserting
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‘‘probation office’’; by inserting as the
third paragraph the following: ‘‘In
certain cases a downward departure
may be appropriate to accomplish a
specific treatment purpose. See § 5C1.1,
Application Note 6.’’; and in the fourth
paragraph, as amended by this
amendment, by striking ‘‘Similarly,
where’’ and inserting ‘‘In a case in
which’’.
Section 5H1.11 is amended by
inserting as the first paragraph the
following: ‘‘Military service may be
relevant in determining whether a
departure is warranted, if the military
service, individually or in combination
with other offender characteristics, is
present to an unusual degree and
distinguishes the case from the typical
cases covered by the guidelines.’’; and in
the second paragraph, as amended by
this amendment, by striking ‘‘Military,
civic’’ and inserting ‘‘Civic’’.
Section 5K2.0(d)(1) is amended by
striking ‘‘third and last sentences’’ and
inserting ‘‘last sentence’’.
Reason for Amendment: This multipart amendment revises the
introductory commentary to Chapter
Five, Part H (Specific Offender
Characteristics), amends the policy
statements relating to age, mental and
emotional conditions, physical
condition, and military service, and
makes conforming changes to § 5K2.0
(Grounds for Departure). The
amendment is a result of a review of the
departure provisions in the Guidelines
Manual begun by the Commission this
year. See 74 FR 46478, 46479
(September 9, 2009). The Commission
undertook this review, in part, in
response to an observed decrease in
reliance on departure provisions in the
Guidelines Manual in favor of an
increased use of variances.
First, the amendment revises the
introductory commentary to Chapter
Five, Part H. As amended, the
introductory commentary explains that
the purpose of Part H is to provide
sentencing courts with a framework for
addressing specific offender
characteristics in a reasonably
consistent manner. Using such a
framework in a uniform manner will
help ‘‘secure nationwide consistency,’’
Gall v. United States, 552 U.S. 38, 49
(2007), ‘‘avoid unwarranted sentencing
disparities,’’ 28 U.S.C. 991(b)(1)(B), and
‘‘promote respect for the law,’’ 18 U.S.C.
3553(a)(2)(A).
Accordingly, the amended
introductory commentary outlines three
categories of specific offender
characteristics described in the
Sentencing Reform Act and the statutory
and guideline standards that apply to
consideration of each category. Courts
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must consider ‘‘the history and
characteristics of the defendant’’ among
other factors. See 18 U.S.C. 3553(a).
However, in order to avoid unwarranted
sentencing disparities, see 18 U.S.C.
3553(a)(6), 28 U.S.C. 991(b)(1)(B), courts
should not give specific offender
characteristics excessive weight. The
guideline range, which reflects the
defendant’s criminal conduct and the
defendant’s criminal history, should
continue to be ‘‘the starting point and
the initial benchmark.’’ Gall, supra, at
49.
The amended introductory
commentary also states that the
Commission will continue to provide
information to the courts on the
relevance of specific offender
characteristics in sentencing, as
contemplated by the Sentencing Reform
Act. See, e.g., 28 U.S.C. 995(a)(12)(A).
The Commission expects that providing
such information on an ongoing basis
will promote nationwide consistency in
the consideration of specific offender
characteristics by courts and help avoid
unwarranted sentencing disparities.
Second, the amendment amends
several policy statements that cover
specific offender characteristics
addressed in 28 U.S.C. 994(d): §§ 5H1.1
(Age), 5H1.3 (Mental and Emotional
Conditions), and 5H1.4 (Physical
Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling
Addiction). As amended, these policy
statements generally provide that age;
mental and emotional conditions; and
physical condition or appearance,
including physique, ‘‘may be relevant in
determining whether a departure is
warranted, if [the offender
characteristic], individually or in
combination with other offender
characteristics, is present to an unusual
degree and distinguishes the case from
the typical cases covered by the
guidelines.’’ The Commission adopted
this departure standard after reviewing
recent federal sentencing data, trial and
appellate court case law, scholarly
literature, public comment and
testimony, and feedback in various
forms from federal judges.
The amendment also amends
§§ 5H1.3 and 5H1.4 to provide that in
certain cases described in Application
Note 6 to § 5C1.1 (Imposition of a Term
of Imprisonment) a departure may be
appropriate.
Third, the amendment amends
§ 5H1.11 (Military, Civic, Charitable, or
Public Service; Employment-Related
Contributions; Record of Prior Good
Works) to draw a distinction between
military service and the other
circumstances covered by that policy
statement. As amended, the policy
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statement provides that military service
‘‘may be relevant in determining
whether a departure is warranted, if the
military service, individually or in
combination with other offender
characteristics, is present to an unusual
degree and distinguishes the case from
the typical cases covered by the
guidelines.’’ The Commission
determined that applying this departure
standard to consideration of military
service is appropriate because such
service has been recognized as a
traditional mitigating factor at
sentencing. See, e.g., Porter v.
McCollum, 130 S. Ct. 447, 455 (2009)
(‘‘Our Nation has a long tradition of
according leniency to veterans in
recognition of their service, especially
for those who fought on the front lines
* * *’’).
Finally, the amendment makes
conforming changes to § 5K2.0 (Grounds
for Departure).
3. Amendment: The Commentary to
§ 2L1.2 captioned ‘‘Application Notes’’ is
amended in Note 7 by striking
‘‘Consideration’’ and inserting ‘‘Based on
Seriousness of a Prior Conviction.’’
The Commentary to § 2L1.2 captioned
‘‘Application Notes’’ is amended by
adding at the end the following:
‘‘8. Departure Based on Cultural
Assimilation.—There may be cases in which
a downward departure may be appropriate
on the basis of cultural assimilation. Such a
departure should be considered only in cases
where (A) the defendant formed cultural ties
primarily with the United States from having
resided continuously in the United States
from childhood, (B) those cultural ties
provided the primary motivation for the
defendant’s illegal reentry or continued
presence in the United States, and (C) such
a departure is not likely to increase the risk
to the public from further crimes of the
defendant.
In determining whether such a departure is
appropriate, the court should consider,
among other things, (1) the age in childhood
at which the defendant began residing
continuously in the United States, (2)
whether and for how long the defendant
attended school in the United States, (3) the
duration of the defendant’s continued
residence in the United States, (4) the
duration of the defendant’s presence outside
the United States, (5) the nature and extent
of the defendant’s familial and cultural ties
inside the United States, and the nature and
extent of such ties outside the United States,
(6) the seriousness of the defendant’s
criminal history, and (7) whether the
defendant engaged in additional criminal
activity after illegally reentering the United
States.’’
Reason for Amendment: This
amendment addresses when a
downward departure may be
appropriate in an illegal reentry case
sentenced under § 2L1.2 (Unlawfully
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Entering or Remaining in the United
States) on the basis of the defendant’s
cultural assimilation to the United
States.
Several circuits have upheld
departures based on cultural
assimilation. See, e.g., 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); United States v.
Lipman, 133 F.3d 726, 730 (9th Cir.
1998). Other circuits have declined to
rule on whether such a departure may
be warranted. See, e.g., United States v.
Galarza-Payan, 441 F.3d 885, 889 (10th
Cir. 2006) (‘‘We need not address that
debate in the altered post-Booker
landscape.’’); United States v. MelendezTorres, 420 F.3d 45, 51 n.3 (1st Cir.
2005); see also United States v. Ticas,
219 F. App’x 44, 45 (2d Cir. 2007)
(acknowledging that the Second Circuit
has never recognized cultural
assimilation as a basis for a downward
departure). Some circuits, though not
foreclosing the possibility of cultural
assimilation departures, have stated that
district courts are within their
discretion to deny such departures in
light of a defendant’s criminal past and
society’s increased interest in *keeping
aliens who have committed crimes out
of the United States following their
deportation.* United States v. RocheMartinez, 467 F.3d 591, 595 (7th Cir.
2006); see also Galarza-Payan, supra, at
889–90 (stating that *in assessing the
reasonableness of a sentence [] a
particular defendant’s cultural ties must
be weighed against other factors such as
(1) sentencing disparities among
defendants with similar backgrounds
and characteristics, and (2) the need for
the sentence to reflect the seriousness of
the crime and promote respect for the
law*).
In order to promote uniform
consideration of cultural assimilation by
courts, the amendment adds an
application note to § 2L1.2 providing
that a downward departure may be
appropriate on the basis of cultural
assimilation. The application note
provides that such a departure may be
appropriate if (A) the defendant formed
cultural ties primarily with the United
States from having resided continuously
in the United States from childhood, (B)
those cultural ties provided the primary
motivation for the defendant’s illegal
reentry or continued presence in the
United States, and (C) such a departure
is not likely to increase the risk to the
public from further crimes of the
defendant. The application note also
provides a non-exhaustive list of factors
the court should consider in
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determining whether such a departure is
appropriate.
4. Amendment: Section 1B1.1 is
amended 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 striking the first
paragraph 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 subdivision (i) as
subsection (b) and, in that subsection,
by striking ‘‘Refer to’’ and inserting ‘‘The
court shall then consider’’; by striking
‘‘to’’ before ‘‘any’’; 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 consider the applicable
factors in 18 U.S.C. 3553(a) taken as a
whole. See 18 U.S.C. 3553(a).’’.
The Commentary to § 1B1.1 is
amended by adding at the end the
following:
‘‘Background: The court must impose a
sentence ‘sufficient, but not greater than
necessary,’ to comply with the purposes of
sentencing set forth in 18 U.S.C. 3553(a)(2).
See 18 U.S.C. 3553(a). Subsections (a), (b),
and (c) are structured to reflect the three-step
process used in determining the particular
sentence to be imposed. If, after step (c), the
court imposes a sentence that is outside the
guidelines framework, such a sentence is
considered a ‘variance’. See Irizarry v. United
States, 128 S. Ct. 2198, 2200–03 (2008)
(describing within-range sentences and
departures as ‘sentences imposed under the
framework set out in the Guidelines’).’’.
Reason for Amendment: This
amendment amends § 1B1.1
(Application Instructions) in light of
United States v. Booker, 543 U.S. 220
(2005), and subsequent case law.
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, 347–48
(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.’’).
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After determining the guideline range,
the district court should refer to the
Guidelines Manual and consider
whether the case warrants a departure.
See 18 U.S.C. 3553(a)(5). ‘‘‘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.’’ 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 by the court only after
departures have been considered.
Most circuits agree on a three-step
approach, including the consideration
of departure provisions in the
Guidelines Manual, in determining the
sentence to be imposed. See United
States v. Dixon, 449 F.3d 194, 203–04
(1st Cir. 2006) (court must consider ‘‘any
applicable departures’’); United States v.
Selioutsky, 409 F.3d 114, 118 (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. Moreland,
437 F.3d 424, 433 (4th Cir. 2006)
(departures ‘‘remain an important part of
sentencing even after Booker’’); United
States v. Tzep-Mejia, 461 F.3d 522, 525
(5th Cir. 2006) (‘‘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 nonGuideline sentence which is either
higher or lower than the relevant
Guideline sentence.’’ (internal footnote
and citation omitted)); United States v.
McBride, 434 F.3d 470, 476 (6th Cir.
2006) (district court ‘‘still required to
consider * * * whether a Chapter 5
departure is appropriate’’); 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 (internal quotation
omitted)); 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, 1215 (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,
426 (7th Cir. 2006) (stating that
departures are ‘‘obsolete’’).
The amendment resolves the circuit
conflict and adopts the three-step
approach followed by a majority of
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circuits in determining the sentence to
be imposed. The amendment
restructures § 1B1.1 into three
subsections to reflect the three-step
process. As amended, subsection (a)
addresses how to apply the provisions
in the Guidelines 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) taken as a
whole in determining the appropriate
sentence. The amendment also adds
background commentary referring to the
statutory requirements of 18 U.S.C.
3553(a) and defining the term ‘‘variance’’
as ‘‘a sentence that is outside the
guidelines framework’’.
5. Amendment: 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’’ and inserting
‘‘subsection’’ each place it appears; 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)(2) 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’’.
Reason for Amendment: This
amendment addresses a factor included
in the calculation of the criminal history
score in Chapter Four of the Guidelines
Manual. Specifically, this amendment
eliminates the ‘‘recency’’ points
provided in subsection (e) of § 4A1.1
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(Criminal History Category). Under
§ 4A1.1(e), one or two points are added
to the criminal history score if the
defendant committed the instant offense
less than two years after release from
imprisonment on a sentence counted
under subsection (a) or (b) or while in
imprisonment or escape status on such
a sentence. In addition to recency,
subsections (a), (b), (c), (d), and (f) add
points to the criminal history score to
account for the seriousness of the prior
offense and the status of the defendant.
These other factors remain included in
the criminal history score after the
amendment.
The amendment is a result of the
Commission’s continued review of
criminal history issues. This multi-year
review was prompted in part because
criminal history issues are often cited by
sentencing courts as reasons for
imposing non-government sponsored
below range sentences, particularly in
cases in which recency points were
added to the criminal history score
under § 4A1.1(e).
As part of its review, the Commission
undertook analyses to determine the
extent to which recency points
contribute to the ability of the criminal
history score to predict the defendant’s
risk of recidivism. See generally USSG
Ch. 4, Pt. A, intro. comment (‘‘To protect
the public from further crimes of the
particular defendant, the likelihood of
recidivism and future criminal behavior
must be considered.’’). Recent research
isolating the effect of § 4A1.1(e) on the
predictive ability of the criminal history
score indicated that consideration of
recency only minimally improves the
predictive ability.
In addition, the Commission received
public comment and testimony
suggesting that the recency of the
instant offense to the defendant’s release
from imprisonment does not necessarily
reflect increased culpability. Public
comment and testimony indicated that
defendants who recidivate tend to do so
relatively soon after being released from
prison but suggested that, for many
defendants, this may reflect the
challenges to successful reentry after
imprisonment rather than increased
culpability.
Finally, Commission data indicated
that many of the cases in which recency
points apply are sentenced under
Chapter Two guidelines that have
provisions based on criminal history.
The amendment responds to suggestions
that recency points are not necessary to
adequately account for criminal history
in such cases.
6. Amendment: The Commentary to
§ 2H1.1 captioned ‘‘Statutory
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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,’’.
Section 3A1.1(a) is amended by
inserting ‘‘gender identity,’’ after
‘‘gender,’’.
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 genderrelated characteristics. See 18 U.S.C.
249(c)(4).’’.
The Commentary to § 3A1.1 captioned
‘‘Background’’ is amended in the first
paragraph by striking ‘‘(i.e.’’ and all that
follows through ‘‘victim)’’; and by
adding at the end of that paragraph 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’’.
Reason for Amendment: This
amendment responds to the Matthew
Shepard and James Byrd, Jr. Hate
Crimes Prevention Act (division E of
Pub. L. 111–84) (the ‘‘Act’’). The Act
created two new offenses and amended
a 1994 directive to the Commission
regarding crimes motivated by hate.
The first new 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, to
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 18 U.S.C.
249 is subject to a term of imprisonment
of up to 10 years or, if the offense
includes kidnapping, aggravated sexual
abuse, or an attempt to kill, or if death
results from the offense, to
imprisonment for any term of years or
life. The amendment amends Appendix
A (Statutory Index) to refer offenses
under 18 U.S.C. 249 to § 2H1.1 (Offenses
Involving Individual Rights) because
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that guideline covers similar offenses,
e.g., 18 U.S.C. 241 (Conspiracy against
rights) and 242 (Deprivation of rights
under color of law), and contains
appropriate enhancements to account
for aggravating circumstances that may
be involved in a section 249 offense,
e.g., subsection (b)(1), which provides a
6-level increase if the offense was
committed under color of law.
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 directive to the Commission regarding
hate crimes. The Commission
implemented that directive by
promulgating subsection (a) of § 3A1.1
(Hate Crime Motivation or Vulnerable
Victim). See USSG App. C, Amendment
521 (effective November 1, 1995). The
Act broadened 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 directive
in section 280003(b) so that it now
requires the Commission to provide an
enhancement for crimes motivated by
actual or perceived ‘‘gender identity’’. To
reflect the broadened definition, the
amendment amends § 3A1.1 so that the
enhancement in subsection (a) covers
crimes motivated by actual or perceived
‘‘gender identity’’ and makes conforming
changes to §§ 2H1.1. The amendment
also deletes as unnecessary the
parenthetical in the Background to
§ 3A1.1, which provided an example of
*hate crime motivation*.
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 the status of that
individual as a United States
serviceman. A person who violates 18
U.S.C. 1389 is subject to a term of
imprisonment of not more than 2 years
in the case of a simple assault, or
damage of not more than $500, of not
more than 5 years in the case of damage
of more than $500, or of not less than
6 months nor more than 10 years in the
case of a battery, or an assault resulting
in bodily injury. The Commission
determined that offenses under 18
U.S.C. 1389 are similar to offenses
involving assault or property damage
that are already referenced to §§ 2A2.2
(Aggravated Assault), 2A2.3 (Minor
Assault), and 2B1.1 (Theft, Property
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Destruction, and Fraud) and therefore
amended Appendix A (Statutory Index)
to refer the new offense to those
guidelines.
7. Amendment: Section 8B2.1(b)(4) is
amended by striking ‘‘subdivision’’ and
inserting ‘‘subparagraph’’ each place it
appears.
The Commentary to § 8B2.1 captioned
‘‘Application Notes’’ is amended in Note
2(D) by striking ‘‘subdivision’’ and
inserting ‘‘subparagraph’’.
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).—
Subsection (b)(7) has two aspects.
First, the organization should respond
appropriately to the criminal conduct.
The organization should take reasonable
steps, as warranted under the
circumstances, to remedy the harm
resulting from the criminal conduct.
These steps may include, where
appropriate, providing restitution to
identifiable victims, as well as other
forms of remediation. Other reasonable
steps to respond appropriately to the
criminal conduct may include selfreporting and cooperation with
authorities.
Second, the organization should act
appropriately to prevent further similar
criminal conduct, including assessing
the compliance and ethics program and
making modifications necessary to
ensure the program is effective. The
steps taken should be consistent with
subsections (b)(5) and (c) and may
include the use of an outside
professional advisor to ensure adequate
assessment and implementation of any
modifications.’’; and in Note 7, as
redesignated by this amendment, by
striking ‘‘subdivision’’ and inserting
‘‘subparagraph’’ each place it appears.
Section 8C2.5(f)(3) is amended in
subparagraph (A) by striking
‘‘subdivision (B)’’ and inserting
‘‘subparagraphs (B) and (C)’’; and by
adding at the end the following:
‘‘(C) Subparagraphs (A) and (B) shall not
apply if—
(i) The individual or individuals with
operational responsibility for the compliance
and ethics program (see § 8B2.1(b)(2)(C))
have direct reporting obligations to the
governing authority or an appropriate
subgroup thereof (e.g., an audit committee of
the board of directors);
(ii) The compliance and ethics program
detected the offense before discovery outside
the organization or before such discovery was
reasonably likely;
(iii) The organization promptly reported
the offense to appropriate governmental
authorities; and
(iv) No individual with operational
responsibility for the compliance and ethics
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program participated in, condoned, or was
willfully ignorant of the offense.’’.
The Commentary to § 8C2.5 captioned
‘‘Application Notes’’ is amended in Note
10 in the second sentence by inserting
‘‘or (f)(3)(C)(iii)’’ after ‘‘subsection (f)(2)’’;
by redesignating Notes 11 through 14 as
Notes 12 through 15, respectively; and
by inserting after Note 10 the following:
11. For purposes of subsection (f)(3)(C)(i),
an individual has ‘direct reporting
obligations’ to the governing authority or an
appropriate subgroup thereof if the
individual has express authority to
communicate personally to the governing
authority or appropriate subgroup thereof (A)
promptly on any matter involving criminal
conduct or potential criminal conduct, and
(B) no less than annually on the
implementation and effectiveness of the
compliance and ethics program.
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 paragraph (1), the
organization shall notify its employees and
shareholders of its criminal behavior and its
program referred to in paragraph (1). Such
notice shall be in a form prescribed by the
court.
(3) 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 paragraph (1). Among
other things, reports under subparagraph (B)
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.
(4) The organization shall 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.
(5) 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 or experts engaged by
the court; and (B) interrogation of
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knowledgeable individuals within the
organization. Compensation to and costs of
any experts engaged by the court shall be
paid by the organization.
(6) The organization shall 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)’’; and by
striking ‘‘(c)(3)’’ and inserting ‘‘(b)(3)’’.
Reason for Amendment: This
amendment makes several changes to
Chapter Eight of the Guidelines Manual
regarding the sentencing of
organizations.
First, the amendment amends the
Commentary to § 8B2.1 (Effective
Compliance and Ethics Program) by
adding an application note that clarifies
the remediation efforts required to
satisfy the seventh minimal requirement
for an effective compliance and ethics
program under subsection (b)(7).
Subsection (b)(7) requires an
organization, after criminal conduct has
been detected, to take reasonable steps
(1) to respond appropriately to the
criminal conduct and (2) to prevent
further similar criminal conduct.
The new application note describes
the two aspects of subsection (b)(7).
With respect to the first aspect, the
application note provides that the
organization should take reasonable
steps, as warranted under the
circumstances, to remedy the harm
resulting from the criminal conduct.
The application note further provides
that such steps may include, where
appropriate, providing restitution to
identifiable victims, other forms of
remediation, and self-reporting and
cooperation with authorities. With
respect to the second aspect, the
application note provides that an
organization should assess the
compliance and ethics program and
make modifications necessary to ensure
the program is effective. The application
note further provides that such steps
should be consistent with § 8B2.1(b)(5)
and (c), which also require assessment
and modification of the program, and
may include the use of an outside
professional advisor to ensure adequate
assessment and implementation of any
modifications.
This application note was added in
response to public comment and
testimony suggesting that further
guidance regarding subsection (b)(7)
may encourage organizations to take
reasonable steps upon discovery of
criminal conduct. The steps outlined by
the application note are consistent with
factors considered by enforcement
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agencies in evaluating organizational
compliance and ethics practices.
Second, the amendment amends
subsection (f) of § 8C2.5 (Culpability
Score) to create a limited exception to
the general prohibition against applying
the 3-level decrease for having an
effective compliance and ethics program
when an organization’s high-level or
substantial authority personnel are
involved in the offense. Specifically, the
amendment adds subsection (f)(3)(C),
which allows an organization to receive
the decrease if the organization meets
four criteria: (1) The individual or
individuals with operational
responsibility for the compliance and
ethics program have direct reporting
obligations to the organization’s
governing authority or appropriate
subgroup thereof; (2) the compliance
and ethics program detected the offense
before discovery outside the
organization or before such discovery
was reasonably likely; (3) the
organization promptly reported the
offense to the appropriate governmental
authorities; and (4) no individual with
operational responsibility for the
compliance and ethics program
participated in, condoned, or was
willfully ignorant of the offense.
The new subsection (f)(3)(C) responds
to concerns expressed in public
comment and testimony that the general
prohibition in § 8C2.5(f)(3) operates too
broadly and that internal and external
reporting of criminal conduct could be
better encouraged by providing an
exception to that general prohibition in
appropriate cases.
The amendment also adds an
application note that describes the
‘‘direct reporting obligations’’ necessary
to meet the first criterion under
§ 8C2.5(f)(3)(C). The application note
provides that an individual has ‘‘direct
reporting obligations’’ if the individual
has express authority to communicate
personally to the governing authority
‘‘promptly on any matter involving
criminal conduct or potential criminal
conduct’’ and ‘‘no less than annually on
the implementation and effectiveness of
the compliance and ethics program’’.
The application note responds to public
comment and testimony regarding the
challenges operational compliance
personnel may face when seeking to
report criminal conduct to the governing
authority of an organization and
encourages compliance and ethics
policies that provide operational
compliance personnel with access to the
governing authority when necessary.
Third, the amendment amends
§ 8D1.4 (Recommended Conditions of
Probation—Organizations (Policy
Statement)) to augment and simplify the
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recommended conditions of probation
for organizations. The amendment
removes the distinction between
conditions of probation imposed solely
to enforce a monetary penalty and
conditions of probation imposed for any
other reason so that all conditional
probation terms are available for
consideration by the court in
determining an appropriate sentence.
Finally, the amendment makes
technical and conforming changes to
various provisions in Chapter Eight.
8. Amendment: 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).’’.
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.)’’.
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 in each
of paragraphs (1) and (2) by inserting ‘‘or
paleontological resource’’ after ‘‘heritage
resource’’; 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 subparagraphs (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:
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‘‘(B) ‘Paleontological resource’ has the
meaning given such term in 16 U.S.C.
470aaa.’’.
The Commentary to § 2B1.5 captioned
‘‘Application Notes’’ is amended in Note
2 by striking ‘‘Cultural Heritage’’ both
places it appears; by striking ‘‘cultural
heritage’’ each place it appears; and by
inserting ‘‘, e.g.,’’ after ‘‘See’’ 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 place it appears;
and by inserting ‘‘or paleontological
resources’’ after ‘‘resources)’’.
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’’, including the
period, and in the lines referenced to
‘‘Toluene’’ by striking the semicolon and
inserting a period.
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’’; and by inserting after the line
referenced to 42 U.S.C. 1396h(b)(2) the
following: ‘‘42 U.S.C. 1396w–2 2H3.1’’.
Reason for Amendment: This multipart amendment responds to
miscellaneous issues arising from
legislation recently enacted and other
miscellaneous guideline application
issues.
First, the amendment responds to the
Fraud Enforcement and Recovery Act of
2009, Public Law 111–21, which
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broadened 18 U.S.C. 1348, a securities
fraud statute, to cover commodities
fraud. Offenses under 18 U.S.C. 1348 are
referenced in Appendix A (Statutory
Index) to § 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). Section 2B1.1 includes
an enhancement at subsection (b)(17)(B)
that applies when specified persons
who have fiduciary duties violate
commodities law. ‘‘Commodities law’’ is
defined in Application Note 14 to mean
the Commodities Exchange Act (7
U.S.C. 1 et seq.), including the rules,
regulations, and orders issued by the
Commodity Futures Trading
Commission. The amendment adds 18
U.S.C. 1348 to the definition of
‘‘commodities law’’ for purposes of
subsection (b)(17)(B). The Commission
determined that including 18 U.S.C.
1348 within the scope of subsection
(b)(17)(B) is appropriate to reflect the
expanded scope of the statute.
Second, the amendment responds to
the Omnibus Public Land Management
Act of 2009, Public Law 111–11, which
created a new offense at 16 U.S.C.
470aaa–5 making it unlawful to remove,
damage, alter, traffic in, or make a false
record relating to a paleontological
resource on federal land. The
amendment amends Appendix A
(Statutory Index) to refer offenses under
16 U.S.C. 470aaa–5 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) because such
offenses are similar either to offenses
involving cultural heritage resources or,
to the extent they involve false records,
to fraud offenses. The amendment also
makes technical and conforming
changes to §§ 2B1.1 and 2B1.5.
Third, the amendment responds to the
Children’s Health Insurance Program
Reauthorization Act of 2009, Public Law
111–3, which created a new Class A
misdemeanor offense at 42 U.S.C.
1396w–2 regarding the unlawful
disclosure of certain protected
information related to social security
eligibility. The amendment amends
Appendix A (Statutory Index) to refer
offenses under 42 U.S.C. 1396w–2 to
§ 2H3.1 (Interception of
Communications; Eavesdropping;
Disclosure of Certain Private or
Protected Information) because such
offenses involve invasions of privacy.
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Fourth, the amendment responds to a
regulatory change in which iodine was
upgraded from a List II chemical to a
List I chemical. Offenses involving
listed chemicals are sentenced under
§ 2D1.11 (Unlawfully Distributing,
Importing, Exporting or Possessing a
Listed Chemical; Attempt or
Conspiracy). Because the maximum
base offense level for List I chemicals
(level 30) is higher than that for List II
chemicals (level 28), the amendment
increases the maximum base offense
level for offenses involving iodine to
level 30 and specifies the amount of
iodine needed (1.3 kilograms) for base
offense level 30 to apply.
9. Amendment: 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)’’; in Note 6, in the first paragraph by
striking ‘‘ ‘is’’ 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 ‘‘not more than five
days’’.
The Commentary to § 1B1.11
captioned ‘‘Application Notes’’ is
amended in Note 2 by striking
‘‘Guideline’’ and inserting ‘‘Guidelines’’.
The Commentary to § 1B1.13
captioned ‘‘Application Notes’’ is
amended in Note 1 by striking
‘‘Subsection’’ and inserting
‘‘Subdivision’’.
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’’.
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The Commentary to § 2B1.5 captioned
‘‘Application Notes’’ is amended in Note
1 by striking ‘‘299’’ and inserting ‘‘229’’;
and 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 fourth
paragraph by striking ‘‘was recently
increased from two to’’ and inserting
‘‘is’’; and by striking ‘‘Violations’’ 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
‘‘§ 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 last
paragraph by striking ‘‘Section 6371 of
the Anti-Drug Abuse Act of 1988’’ and
inserting ‘‘21 U.S.C. 844(a)’’ both places
it appears.
The Commentary to § 2G3.1 captioned
‘‘Application Notes’’ is amended in Note
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1 in the paragraph that begins
‘‘ ‘Distribution’ means’’ by inserting
‘‘transmission,’’ after ‘‘production,’’.
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
2 by inserting ‘‘That Is’’ after ‘‘Firearm’’;
and by inserting ‘‘that is’’ after
‘‘semiautomatic firearm’’.
The Commentary to § 2K2.1 captioned
‘‘Application Notes’’ is amended in Note
10 in the first paragraph by striking ‘‘;
§ 4A1.2, comment. (n.3)’’; 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 § 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’’
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’’.
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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),’’.
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)’’.
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. 247 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).
Reason for Amendment: This two-part
amendment makes various technical
and conforming changes to the
guidelines.
First, the 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),
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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
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
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(Unlawful Possession, Manufacture,
Distribution, Transportation,
Exportation, or Importation of
Prohibited Flask, Equipment, Chemical,
Product, or Material), Application Note
3, 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 consistent with the definition
of ‘‘distribution’’ in the child
pornography guidelines;
(21) § 2K2.1 (Unlawful Receipt,
Possession, or Transportation of
Firearms or Ammunition), Application
Notes 2 and 10, to ensure that a
quotation contained in Note 2 is
accurate and that a citation in Note 10
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 § 2L2.1 (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;
(27) § 2M6.1 (Unlawful Activity
Involving Nuclear Material, Weapons, or
Facilities, Biological Agents, Toxins, or
PO 00000
Frm 00012
Fmt 4701
Sfmt 9990
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.
Second, the amendment makes a
series of changes to the Guidelines
Manual to promote stylistic consistency
in how subdivisions are designated.
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)’’). 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)’’). The
amendment identifies places in the
Guidelines Manual where these
principles are not followed and brings
them into conformity.
[FR Doc. 2010–11552 Filed 5–13–10; 8:45 am]
BILLING CODE P
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Agencies
[Federal Register Volume 75, Number 93 (Friday, May 14, 2010)]
[Notices]
[Pages 27388-27398]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11552]
[[Page 27387]]
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Part II
United States Sentencing Commission
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Sentencing Guidelines for United States Courts; Notice
Federal Register / Vol. 75 , No. 93 / Friday, May 14, 2010 /
Notices
[[Page 27388]]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of submission to Congress of amendments to the
sentencing guidelines effective November 1, 2010.
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SUMMARY: Pursuant to its authority under 28 U.S.C. 994(p), the
Commission has promulgated amendments to the sentencing guidelines,
policy statements, commentary, and statutory index. This notice sets
forth the amendments and the reason for each amendment.
DATES: The Commission has specified an effective date of November 1,
2010, for the amendments set forth in this notice.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs
Officer, 202-502-4597. The amendments set forth in this notice also may
be accessed through the Commission's Web site at https://www.ussc.gov.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal sentencing 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 generally
submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p)
not later than the first day of May each year. Absent action of
Congress to the contrary, submitted amendments become effective by
operation of law on the date specified by the Commission (generally
November 1 of the year in which the amendments are submitted to
Congress).
Notice of proposed amendments was published in the Federal Register
on January 21, 2010 (see 75 FR 3525). The Commission held a public
hearing on the proposed amendments in Washington, DC, on March 17,
2010. On April 29, 2010, the Commission submitted these amendments to
Congress and specified an effective date of November 1, 2010.
Authority: 28 U.S.C. 994(a), (o), and (p); USSC Rule of Practice
and Procedure 4.1.
William K. Sessions III,
Chair.
1. Amendment: Chapter Five, Part A, is amended in the Sentencing
Table by redesignating Zones A, B, C, and D (as designated by Amendment
462, see USSG Appendix C, Amendment 462 (effective November 1, 1992))
as follows: Zone A (containing all guideline ranges having a minimum of
zero months); Zone B (containing all guideline ranges having a minimum
of at least one but not more than nine months); Zone C (containing all
guideline ranges having a minimum of at least ten but not more than
twelve months); and Zone D (containing all guideline ranges having a
minimum of fifteen months or more).
The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is
amended in Note 1(b) by striking ``six'' and inserting ``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 in the first paragraph by striking ``six'' and
inserting ``nine''; in Note 4 by striking ``eight, nine, or ten
months'' and inserting ``ten or twelve months''; by striking ``8-14''
and inserting ``10-16'' both places it appears; by striking ``sentence
of four'' and inserting ``sentence of five'' both places it appears; by
striking ``four'' before ``months community''and inserting ``five''; by
striking ``five'' after ``and a sentence of'' and inserting ``ten''; by
striking Note 6 and inserting the following:
``6. There may be cases in which a departure from the sentencing
options authorized for Zone C of the Sentencing Table (under which
at least half the minimum term must be satisfied by imprisonment) to
the sentencing options authorized for Zone B of the Sentencing Table
(under which all or most of the minimum term may be satisfied by
intermittent confinement, community confinement, or home detention
instead of imprisonment) is appropriate to accomplish a specific
treatment purpose. Such a departure should be considered only in
cases where the court finds that (A) the defendant is an abuser of
narcotics, other controlled substances, or alcohol, or suffers from
a significant mental illness, and (B) the defendant's criminality is
related to the treatment problem to be addressed.
In determining whether such a departure is appropriate, the
court should consider, among other things, (1) the likelihood that
completion of the treatment program will successfully address the
treatment problem, thereby reducing the risk to the public from
further crimes of the defendant, and (2) whether imposition of less
imprisonment than required by Zone C will increase the risk to the
public from further crimes of the defendant.
Examples: The following examples both assume the applicable
guideline range is 12-18 months and the court departs in accordance
with this application note. Under Zone C rules, the defendant must
be sentenced to at least six months imprisonment. (1) The defendant
is a nonviolent drug offender in Criminal History Category I and
probation is not prohibited by statute. The court departs downward
to impose a sentence of probation, with twelve months of
intermittent confinement, community confinement, or home detention
and participation in a substance abuse treatment program as
conditions of probation. (2) The defendant is convicted of a Class A
or B felony, so probation is prohibited by statute (see Sec.
5B1.1(b)). The court departs downward to impose a sentence of one
month imprisonment, with eleven months in community confinement or
home detention and participation in a substance abuse treatment
program as conditions of supervised release.''
In Note 7 by striking the last sentence; in Note 8 by striking
``twelve'' and inserting ``15''; and by redesignating Note 8 as Note 9
and inserting after Note 7 the following:
``8. In a case in which community confinement in a residential
treatment program is imposed to accomplish a specific treatment
purpose, the court should consider the effectiveness of the
residential treatment program.''
Reason for Amendment: This amendment is a two-part amendment
expanding the availability of alternatives to incarceration. The
amendment provides a greater range of sentencing options to courts with
respect to certain offenders by expanding Zones B and C of the
Sentencing Table by one level each and addresses cases in which a
departure from imprisonment to an alternative to incarceration (such as
intermittent confinement, community confinement, or home confinement)
may be appropriate to accomplish a specific treatment purpose.
The amendment is a result of the Commission's continued multi-year
study of alternatives to incarceration. The Commission initiated this
study in recognition of increased interest in alternatives to
incarceration by all three branches of government and renewed public
debate about the size of the federal prison population and the need for
greater availability of alternatives to incarceration for certain
nonviolent first offenders. See generally 28 U.S.C. 994(g), (j).
As part of the study, the Commission held a two-day national
symposium at which the Commission heard from experts on alternatives to
incarceration, including federal and state judges, congressional staff,
professors of law
[[Page 27389]]
and the social sciences, corrections and alternative sentencing
practitioners and specialists, federal and state prosecutors and
defense attorneys, prison officials, and others involved in criminal
justice. See United States Sentencing Commission, Symposium on
Alternatives to Incarceration (July 2008). In considering the
amendment, the Commission also reviewed federal sentencing data, public
comment and testimony, recent scholarly literature, current federal and
state practices, and feedback in various forms from federal judges.
First, the amendment expands Zones B and C of the Sentencing Table
in Chapter Five. Specifically, it expands Zone B by one level for each
Criminal History Category (taking this area from Zone C), and expands
Zone C by one level for each Criminal History Category (taking this
area from Zone D). Accordingly, under the amendment, defendants in Zone
C with an applicable guideline range of 8-14 months or 9-15 months are
moved to Zone B, and defendants in Zone D with an applicable guideline
range of 12-18 months are moved to Zone C. Conforming changes also are
made to Sec. Sec. 5B1.1 (Imposition of a Term of Probation) and 5C1.1.
In considering this one-level expansion, the Commission observed that
approximately 42 percent of the Zone C offenders covered by the
amendment and approximately 52 percent of the Zone D offenders covered
by the amendment already receive sentences below the applicable
guideline range.
The Commission estimates that of the 71,054 offenders sentenced in
fiscal year 2009 for which complete sentencing guideline application
information is available, 1,565 offenders in Zone C, or 2.2 percent,
would have been in Zone B of the Sentencing Table under the amendment,
and 2,734 offenders in Zone D, or 3.8 percent, would have been in Zone
C. Not all of these offenders would have been eligible for an
alternative to incarceration, however, because many were non-citizens
who may have been subject to an immigration detainer and some were
statutorily prohibited from being sentenced to a term of probation,
see, e.g., 18 U.S.C. 3561(a)(1) (prohibiting a defendant convicted of a
Class A or Class B felony from being sentenced to a term of probation).
As a further reason for the zone expansion, Commission data
indicate that courts often sentence offenders in Zone D with an
applicable guideline range of 12-18 months to a term of imprisonment of
12 months and one day for the specific purpose of making such offenders
eligible for credit for satisfactory behavior while in prison. See 18
U.S.C. 624(b). For such an offender, assuming the maximum ``good time
credit'' is earned, the sentence effectively becomes approximately ten
and one-half months. Given that prior to the amendment the highest
guideline range in Zone C was 10-16 months, the Commission determined
that offenders in Zone D with an applicable guideline range of 12-18
months, many of whom effectively serve a sentence at the lower end of
the highest Zone C sentencing range, should be included in Zone C.
Second, the amendment clarifies and illustrates certain cases in
which a departure may be appropriate to accomplish a specific treatment
purpose. Specifically, it amends an existing departure provision at
Sec. 5C1.1 (Imposition of a Term of Imprisonment), Application Note 6.
As amended, the application note states that a departure from the
sentencing options authorized for Zone C of the Sentencing Table to
accomplish a specific treatment purpose should be considered only in
cases where the court finds that (A) the defendant is an abuser of
narcotics, other controlled substances, or alcohol, or suffers from a
significant mental illness, and (B) the defendant's criminality is
related to the treatment problem to be addressed.
Under the application note as amended, the court may depart from
the sentencing options authorized for Zone C (under which at least half
the minimum term must be satisfied by imprisonment) to the sentencing
options authorized for Zone B (under which all or most of the minimum
term may be satisfied by intermittent confinement, community
confinement, or home detention instead of imprisonment) to accomplish a
specific treatment purpose. The application note also provides that, in
determining whether such a departure is appropriate, the court should
consider, among other things, two factors relating to public safety:
(1) The likelihood that completion of the treatment program will
successfully address the treatment problem, thereby reducing the risk
to the public from further crimes of the defendant, and (2) whether
imposition of less imprisonment than required by Zone C will increase
the risk to the public from further crimes of the defendant. Some
public comment, testimony, and research suggested that successful
completion of treatment programs may reduce recidivism rates and that,
for some defendants, confinement at home or in the community instead of
imprisonment may better address both the defendant's need for treatment
and the need to protect the public. Accordingly, the Commission amended
the application note to clarify the criteria and to provide examples of
such cases.
The amendment also makes two other changes to the Commentary to
Sec. 5C1.1 regarding the factors to be considered in determining
whether to impose an alternative to incarceration. The amendment adds
an application note providing that, in a case in which community
confinement in a residential treatment program is imposed to accomplish
a specific treatment purpose, the court should consider the
effectiveness of the treatment program. The amendment also deletes as
unnecessary the second sentence of Application Note 7.
2. Amendment: Chapter Five, Part H, is amended in the Introductory
Commentary by striking the first paragraph and inserting the following:
``This Part addresses the relevance of certain specific offender
characteristics in sentencing. The Sentencing Reform Act (the `Act')
contains several provisions regarding specific offender
characteristics:
First, the Act directs the Commission to ensure that the
guidelines and policy statements `are entirely neutral' as to five
characteristics--race, sex, national origin, creed, and
socioeconomic status. See 28 U.S.C. 994(d).
Second, 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 aspects
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).
Third, 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 skills; employment record;
family ties and responsibilities; and community ties. See 28 U.S.C.
994(e).
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).
Specific offender characteristics are taken into account in the
guidelines in several ways. One important specific offender
characteristic is the defendant's criminal history, see 28 U.S.C.
994(d)(10), which is taken into account in the guidelines in Chapter
Four (Criminal History and Criminal Livelihood). See Sec. 5H1.8
(Criminal History). Another specific offender characteristic in the
guidelines is the
[[Page 27390]]
degree of dependence upon criminal history for a livelihood, see 28
U.S.C. 994(d)(11), which is taken into account in Chapter Four, Part B
(Career Offenders and Criminal Livelihood). See Sec. 5H1.9 (Dependence
upon Criminal Activity for a Livelihood). Other specific offender
characteristics are accounted for elsewhere in this manual. See, e.g.,
Sec. Sec. 2C1.1(a)(1) and 2C1.2(a)(1) (providing alternative base
offense levels if the defendant was a public official); 3B1.3 (Abuse of
Position of Trust or Use of Special Skill); and 3E1.1 (Acceptance of
Responsibility).
The Supreme Court has emphasized that the advisory guideline system
should `continue to move sentencing in Congress' preferred direction,
helping to avoid excessive sentencing disparities while maintaining
flexibility sufficient to individualize sentences where necessary.' See
United States v. Booker, 543 U.S. 220, 264-65 (2005). Although the
court must consider `the history and characteristics of the defendant'
among other factors, see 18 U.S.C. 3553(a), in order to avoid
unwarranted sentencing disparities the court should not give them
excessive weight. Generally, the most appropriate use of specific
offender characteristics is to consider them not as a reason for a
sentence outside the applicable guideline range but for other reasons,
such as in determining the sentence within the applicable guideline
range, the type of sentence (e.g., probation or imprisonment) within
the sentencing options available for the applicable Zone on the
Sentencing Table, and various other aspects of an appropriate sentence.
To avoid unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct, see 18
U.S.C. 3553(a)(6), 28 U.S.C. 991(b)(1)(B), the guideline range, which
reflects the defendant's criminal conduct and the defendant's criminal
history, should continue to be `the starting point and the initial
benchmark.' Gall v. United States, 552 U.S. 38, 49 (2007).
Accordingly, the purpose of this Part is to provide sentencing
courts with a framework for addressing specific offender
characteristics in a reasonably consistent manner. Using such a
framework in a uniform manner will help `secure nationwide
consistency,' see Gall v. United States, 552 U.S. 38, 49 (2007), `avoid
unwarranted sentencing disparities,' see 28 U.S.C. 991(b)(1)(B), 18
U.S.C. 3553(a)(6), `provide certainty and fairness,' see 28 U.S.C.
991(b)(1)(B), and `promote respect for the law,' see 18 U.S.C.
3553(a)(2)(A).
This Part allocates specific offender characteristics into three
general categories.
In the first category are specific offender characteristics the
consideration of which Congress has prohibited (e.g., Sec. 5H1.10
(Race, Sex, National Origin, Creed, Religion, and Socio-Economic
Status)) or that the Commission has determined should be prohibited.
In the second category are specific offender characteristics that
Congress directed the Commission to take into account in the guidelines
only to the extent that they have relevance to sentencing. See 28
U.S.C. 994(d). For some of these, the policy statements indicate that
these characteristics may be relevant in determining whether a sentence
outside the applicable guideline range is warranted (e.g., age; mental
and emotional condition; physical condition). These characteristics may
warrant a sentence outside the applicable guideline range if the
characteristic, individually or in combination with other such
characteristics, is present to an unusual degree and distinguishes the
case from the typical cases covered by the guidelines. These specific
offender characteristics also may be considered for other reasons, such
as in determining the sentence within the applicable guideline range,
the type of sentence (e.g., probation or imprisonment) within the
sentencing options available for the applicable Zone on the Sentencing
Table, and various other aspects of an appropriate sentence.''; in the
second paragraph by striking ``The Commission has determined that
certain circumstances'' and inserting the following: ``In the third
category are specific offender characteristics that Congress directed
the Commission to ensure are reflected in the guidelines and policy
statements as generally inappropriate in recommending a term of
imprisonment or length of a term of imprisonment. See 28 U.S.C. 994(e).
The policy statements indicate that these characteristics''; by
striking ``or to the determination of'' and inserting ``, the type of
sentence (e.g., probation or imprisonment) within the sentencing
options available for the applicable Zone on the Sentencing Table,
or''; by striking ``incidents'' and inserting ``aspects''; and by
striking the last paragraph and inserting the following:
``As with the other provisions in this manual, these policy
statements `are evolutionary in nature'. See Chapter One, Part A,
Subpart 2 (Continuing Evolution and Role of the Guidelines); 28
U.S.C. 994(o). The Commission expects, and the Sentencing Reform Act
contemplates, that continuing research, experience, and analysis
will result in modifications and revisions.
The nature, extent, and significance of specific offender
characteristics can involve a range of considerations. The
Commission will continue to provide information to the courts on the
relevance of specific offender characteristics in sentencing, as the
Sentencing Reform Act contemplates. See, e.g., 28 U.S.C.
995(a)(12)(A) (the Commission serves as a `clearinghouse and
information center' on federal sentencing). Among other things, this
may include information on the use of specific offender
characteristics, individually and in combination, in determining the
sentence to be imposed (including, where available, information on
rates of use, criteria for use, and reasons for use); the
relationship, if any, between specific offender characteristics and
(A) the `forbidden factors' specified in 28 U.S.C. 994(d) and (B)
the `discouraged factors' specified in 28 U.S.C. 994(e); and the
relationship, if any, between specific offender characteristics and
the statutory purposes of sentencing.''
Section 5H1.1 is amended by striking the first sentence and
inserting the following:
``Age (including youth) may be relevant in determining whether a
departure is warranted, if considerations based on age, individually
or in combination with other offender characteristics, are present
to an unusual degree and distinguish the case from the typical cases
covered by the guidelines.''
Section 5H1.3 is amended by striking the first paragraph and
inserting the following:
``Mental and emotional conditions may be relevant in determining
whether a departure is warranted, if such conditions, individually
or in combination with other offender characteristics, are present
to an unusual degree and distinguish the case from the typical cases
covered by the guidelines. See also Chapter Five, Part K, Subpart 2
(Other Grounds for Departure).
In certain cases a downward departure may be appropriate to
accomplish a specific treatment purpose. See Sec. 5C1.1,
Application Note 6.''
Section 5H1.4 is amended in the first paragraph by striking the
first sentence and inserting the following: ``Physical condition or
appearance, including physique, may be relevant in determining whether
a departure is warranted, if the condition or appearance, individually
or in combination with other offender characteristics, is present to an
unusual degree and distinguishes the case from the typical cases
covered by the guidelines.''; in the second sentence by striking
``However, an'' and inserting ``An''; in the second paragraph by
inserting ``ordinarily'' after ``or abuse''; in the last sentence by
striking ``supervisory body'' and inserting
[[Page 27391]]
``probation office''; by inserting as the third paragraph the
following: ``In certain cases a downward departure may be appropriate
to accomplish a specific treatment purpose. See Sec. 5C1.1,
Application Note 6.''; and in the fourth paragraph, as amended by this
amendment, by striking ``Similarly, where'' and inserting ``In a case
in which''.
Section 5H1.11 is amended by inserting as the first paragraph the
following: ``Military service may be relevant in determining whether a
departure is warranted, if the military service, individually or in
combination with other offender characteristics, is present to an
unusual degree and distinguishes the case from the typical cases
covered by the guidelines.''; and in the second paragraph, as amended
by this amendment, by striking ``Military, civic'' and inserting
``Civic''.
Section 5K2.0(d)(1) is amended by striking ``third and last
sentences'' and inserting ``last sentence''.
Reason for Amendment: This multi-part amendment revises the
introductory commentary to Chapter Five, Part H (Specific Offender
Characteristics), amends the policy statements relating to age, mental
and emotional conditions, physical condition, and military service, and
makes conforming changes to Sec. 5K2.0 (Grounds for Departure). The
amendment is a result of a review of the departure provisions in the
Guidelines Manual begun by the Commission this year. See 74 FR 46478,
46479 (September 9, 2009). The Commission undertook this review, in
part, in response to an observed decrease in reliance on departure
provisions in the Guidelines Manual in favor of an increased use of
variances.
First, the amendment revises the introductory commentary to Chapter
Five, Part H. As amended, the introductory commentary explains that the
purpose of Part H is to provide sentencing courts with a framework for
addressing specific offender characteristics in a reasonably consistent
manner. Using such a framework in a uniform manner will help ``secure
nationwide consistency,'' Gall v. United States, 552 U.S. 38, 49
(2007), ``avoid unwarranted sentencing disparities,'' 28 U.S.C.
991(b)(1)(B), and ``promote respect for the law,'' 18 U.S.C.
3553(a)(2)(A).
Accordingly, the amended introductory commentary outlines three
categories of specific offender characteristics described in the
Sentencing Reform Act and the statutory and guideline standards that
apply to consideration of each category. Courts must consider ``the
history and characteristics of the defendant'' among other factors. See
18 U.S.C. 3553(a). However, in order to avoid unwarranted sentencing
disparities, see 18 U.S.C. 3553(a)(6), 28 U.S.C. 991(b)(1)(B), courts
should not give specific offender characteristics excessive weight. The
guideline range, which reflects the defendant's criminal conduct and
the defendant's criminal history, should continue to be ``the starting
point and the initial benchmark.'' Gall, supra, at 49.
The amended introductory commentary also states that the Commission
will continue to provide information to the courts on the relevance of
specific offender characteristics in sentencing, as contemplated by the
Sentencing Reform Act. See, e.g., 28 U.S.C. 995(a)(12)(A). The
Commission expects that providing such information on an ongoing basis
will promote nationwide consistency in the consideration of specific
offender characteristics by courts and help avoid unwarranted
sentencing disparities.
Second, the amendment amends several policy statements that cover
specific offender characteristics addressed in 28 U.S.C. 994(d):
Sec. Sec. 5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and
5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or
Abuse; Gambling Addiction). As amended, these policy statements
generally provide that age; mental and emotional conditions; and
physical condition or appearance, including physique, ``may be relevant
in determining whether a departure is warranted, if [the offender
characteristic], individually or in combination with other offender
characteristics, is present to an unusual degree and distinguishes the
case from the typical cases covered by the guidelines.'' The Commission
adopted this departure standard after reviewing recent federal
sentencing data, trial and appellate court case law, scholarly
literature, public comment and testimony, and feedback in various forms
from federal judges.
The amendment also amends Sec. Sec. 5H1.3 and 5H1.4 to provide
that in certain cases described in Application Note 6 to Sec. 5C1.1
(Imposition of a Term of Imprisonment) a departure may be appropriate.
Third, the amendment amends Sec. 5H1.11 (Military, Civic,
Charitable, or Public Service; Employment-Related Contributions; Record
of Prior Good Works) to draw a distinction between military service and
the other circumstances covered by that policy statement. As amended,
the policy statement provides that military service ``may be relevant
in determining whether a departure is warranted, if the military
service, individually or in combination with other offender
characteristics, is present to an unusual degree and distinguishes the
case from the typical cases covered by the guidelines.'' The Commission
determined that applying this departure standard to consideration of
military service is appropriate because such service has been
recognized as a traditional mitigating factor at sentencing. See, e.g.,
Porter v. McCollum, 130 S. Ct. 447, 455 (2009) (``Our Nation has a long
tradition of according leniency to veterans in recognition of their
service, especially for those who fought on the front lines * * *'').
Finally, the amendment makes conforming changes to Sec. 5K2.0
(Grounds for Departure).
3. Amendment: The Commentary to Sec. 2L1.2 captioned ``Application
Notes'' is amended in Note 7 by striking ``Consideration'' and
inserting ``Based on Seriousness of a Prior Conviction.''
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is
amended by adding at the end the following:
``8. Departure Based on Cultural Assimilation.--There may be
cases in which a downward departure may be appropriate on the basis
of cultural assimilation. Such a departure should be considered only
in cases where (A) the defendant formed cultural ties primarily with
the United States from having resided continuously in the United
States from childhood, (B) those cultural ties provided the primary
motivation for the defendant's illegal reentry or continued presence
in the United States, and (C) such a departure is not likely to
increase the risk to the public from further crimes of the
defendant.
In determining whether such a departure is appropriate, the
court should consider, among other things, (1) the age in childhood
at which the defendant began residing continuously in the United
States, (2) whether and for how long the defendant attended school
in the United States, (3) the duration of the defendant's continued
residence in the United States, (4) the duration of the defendant's
presence outside the United States, (5) the nature and extent of the
defendant's familial and cultural ties inside the United States, and
the nature and extent of such ties outside the United States, (6)
the seriousness of the defendant's criminal history, and (7) whether
the defendant engaged in additional criminal activity after
illegally reentering the United States.''
Reason for Amendment: This amendment addresses when a downward
departure may be appropriate in an illegal reentry case sentenced under
Sec. 2L1.2 (Unlawfully
[[Page 27392]]
Entering or Remaining in the United States) on the basis of the
defendant's cultural assimilation to the United States.
Several circuits have upheld departures based on cultural
assimilation. See, e.g., 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); United States v. Lipman, 133 F.3d
726, 730 (9th Cir. 1998). Other circuits have declined to rule on
whether such a departure may be warranted. See, e.g., United States v.
Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006) (``We need not
address that debate in the altered post-Booker landscape.''); United
States v. Melendez-Torres, 420 F.3d 45, 51 n.3 (1st Cir. 2005); see
also United States v. Ticas, 219 F. App'x 44, 45 (2d Cir. 2007)
(acknowledging that the Second Circuit has never recognized cultural
assimilation as a basis for a downward departure). Some circuits,
though not foreclosing the possibility of cultural assimilation
departures, have stated that district courts are within their
discretion to deny such departures in light of a defendant's criminal
past and society's increased interest in *keeping aliens who have
committed crimes out of the United States following their deportation.*
United States v. Roche-Martinez, 467 F.3d 591, 595 (7th Cir. 2006); see
also Galarza-Payan, supra, at 889-90 (stating that *in assessing the
reasonableness of a sentence [] a particular defendant's cultural ties
must be weighed against other factors such as (1) sentencing
disparities among defendants with similar backgrounds and
characteristics, and (2) the need for the sentence to reflect the
seriousness of the crime and promote respect for the law*).
In order to promote uniform consideration of cultural assimilation
by courts, the amendment adds an application note to Sec. 2L1.2
providing that a downward departure may be appropriate on the basis of
cultural assimilation. The application note provides that such a
departure may be appropriate if (A) the defendant formed cultural ties
primarily with the United States from having resided continuously in
the United States from childhood, (B) those cultural ties provided the
primary motivation for the defendant's illegal reentry or continued
presence in the United States, and (C) such a departure is not likely
to increase the risk to the public from further crimes of the
defendant. The application note also provides a non-exhaustive list of
factors the court should consider in determining whether such a
departure is appropriate.
4. Amendment: Section 1B1.1 is amended 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 striking the
first paragraph 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 subdivision (i) as subsection (b) and, in that
subsection, by striking ``Refer to'' and inserting ``The court shall
then consider''; by striking ``to'' before ``any''; 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 consider the applicable factors
in 18 U.S.C. 3553(a) taken as a whole. See 18 U.S.C. 3553(a).''.
The Commentary to Sec. 1B1.1 is amended by adding at the end the
following:
``Background: The court must impose a sentence `sufficient, but
not greater than necessary,' to comply with the purposes of
sentencing set forth in 18 U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a).
Subsections (a), (b), and (c) are structured to reflect the three-
step process used in determining the particular sentence to be
imposed. If, after step (c), the court imposes a sentence that is
outside the guidelines framework, such a sentence is considered a
`variance'. See Irizarry v. United States, 128 S. Ct. 2198, 2200-03
(2008) (describing within-range sentences and departures as
`sentences imposed under the framework set out in the
Guidelines').''.
Reason for Amendment: This amendment amends Sec. 1B1.1
(Application Instructions) in light of United States v. Booker, 543
U.S. 220 (2005), and subsequent case law.
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, 347-48 (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. See 18 U.S.C. 3553(a)(5). ```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.'' 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 by the court only after departures
have been considered.
Most circuits agree on a three-step approach, including the
consideration of departure provisions in the Guidelines Manual, in
determining the sentence to be imposed. See United States v. Dixon, 449
F.3d 194, 203-04 (1st Cir. 2006) (court must consider ``any applicable
departures''); United States v. Selioutsky, 409 F.3d 114, 118 (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. Moreland, 437 F.3d 424, 433 (4th Cir. 2006) (departures
``remain an important part of sentencing even after Booker''); United
States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006) (``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.'' (internal
footnote and citation omitted)); United States v. McBride, 434 F.3d
470, 476 (6th Cir. 2006) (district court ``still required to consider *
* * whether a Chapter 5 departure is appropriate''); 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 (internal quotation omitted)); 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,
1215 (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, 426 (7th Cir. 2006) (stating that departures are ``obsolete'').
The amendment resolves the circuit conflict and adopts the three-
step approach followed by a majority of
[[Page 27393]]
circuits in determining the sentence to be imposed. The amendment
restructures Sec. 1B1.1 into three subsections to reflect the three-
step process. As amended, subsection (a) addresses how to apply the
provisions in the Guidelines 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) taken as a whole in
determining the appropriate sentence. The amendment also adds
background commentary referring to the statutory requirements of 18
U.S.C. 3553(a) and defining the term ``variance'' as ``a sentence that
is outside the guidelines framework''.
5. Amendment: 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'' and inserting ``subsection'' each place it
appears; 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)(2) 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''.
Reason for Amendment: This amendment addresses a factor included in
the calculation of the criminal history score in Chapter Four of the
Guidelines Manual. Specifically, this amendment eliminates the
``recency'' points provided in subsection (e) of Sec. 4A1.1 (Criminal
History Category). Under Sec. 4A1.1(e), one or two points are added to
the criminal history score if the defendant committed the instant
offense less than two years after release from imprisonment on a
sentence counted under subsection (a) or (b) or while in imprisonment
or escape status on such a sentence. In addition to recency,
subsections (a), (b), (c), (d), and (f) add points to the criminal
history score to account for the seriousness of the prior offense and
the status of the defendant. These other factors remain included in the
criminal history score after the amendment.
The amendment is a result of the Commission's continued review of
criminal history issues. This multi-year review was prompted in part
because criminal history issues are often cited by sentencing courts as
reasons for imposing non-government sponsored below range sentences,
particularly in cases in which recency points were added to the
criminal history score under Sec. 4A1.1(e).
As part of its review, the Commission undertook analyses to
determine the extent to which recency points contribute to the ability
of the criminal history score to predict the defendant's risk of
recidivism. See generally USSG Ch. 4, Pt. A, intro. comment (``To
protect the public from further crimes of the particular defendant, the
likelihood of recidivism and future criminal behavior must be
considered.''). Recent research isolating the effect of Sec. 4A1.1(e)
on the predictive ability of the criminal history score indicated that
consideration of recency only minimally improves the predictive
ability.
In addition, the Commission received public comment and testimony
suggesting that the recency of the instant offense to the defendant's
release from imprisonment does not necessarily reflect increased
culpability. Public comment and testimony indicated that defendants who
recidivate tend to do so relatively soon after being released from
prison but suggested that, for many defendants, this may reflect the
challenges to successful reentry after imprisonment rather than
increased culpability.
Finally, Commission data indicated that many of the cases in which
recency points apply are sentenced under Chapter Two guidelines that
have provisions based on criminal history. The amendment responds to
suggestions that recency points are not necessary to adequately account
for criminal history in such cases.
6. 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,''.
Section 3A1.1(a) is amended by inserting ``gender identity,'' after
``gender,''.
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.
249(c)(4).''.
The Commentary to Sec. 3A1.1 captioned ``Background'' is amended
in the first paragraph by striking ``(i.e.'' and all that follows
through ``victim)''; and by adding at the end of that paragraph 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''.
Reason for Amendment: This amendment responds to the Matthew
Shepard and James Byrd, Jr. Hate Crimes Prevention Act (division E of
Pub. L. 111-84) (the ``Act''). The Act created two new offenses and
amended a 1994 directive to the Commission regarding crimes motivated
by hate.
The first new 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, to 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 18
U.S.C. 249 is subject to a term of imprisonment of up to 10 years or,
if the offense includes kidnapping, aggravated sexual abuse, or an
attempt to kill, or if death results from the offense, to imprisonment
for any term of years or life. The amendment amends Appendix A
(Statutory Index) to refer offenses under 18 U.S.C. 249 to Sec. 2H1.1
(Offenses Involving Individual Rights) because
[[Page 27394]]
that guideline covers similar offenses, e.g., 18 U.S.C. 241 (Conspiracy
against rights) and 242 (Deprivation of rights under color of law), and
contains appropriate enhancements to account for aggravating
circumstances that may be involved in a section 249 offense, e.g.,
subsection (b)(1), which provides a 6-level increase if the offense was
committed under color of law.
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 directive to the Commission regarding hate crimes. The
Commission implemented that directive by promulgating subsection (a) of
Sec. 3A1.1 (Hate Crime Motivation or Vulnerable Victim). See USSG App.
C, Amendment 521 (effective November 1, 1995). The Act broadened 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 directive in section 280003(b) so
that it now requires the Commission to provide an enhancement for
crimes motivated by actual or perceived ``gender identity''. To reflect
the broadened definition, the amendment amends Sec. 3A1.1 so that the
enhancement in subsection (a) covers crimes motivated by actual or
perceived ``gender identity'' and makes conforming changes to
Sec. Sec. 2H1.1. The amendment also deletes as unnecessary the
parenthetical in the Background to Sec. 3A1.1, which provided an
example of *hate crime motivation*.
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 the status of
that individual as a United States serviceman. A person who violates 18
U.S.C. 1389 is subject to a term of imprisonment of not more than 2
years in the case of a simple assault, or damage of not more than $500,
of not more than 5 years in the case of damage of more than $500, or of
not less than 6 months nor more than 10 years in the case of a battery,
or an assault resulting in bodily injury. The Commission determined
that offenses under 18 U.S.C. 1389 are similar to offenses involving
assault or property damage that are already referenced to Sec. Sec.
2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), and 2B1.1 (Theft,
Property Destruction, and Fraud) and therefore amended Appendix A
(Statutory Index) to refer the new offense to those guidelines.
7. Amendment: Section 8B2.1(b)(4) is amended by striking
``subdivision'' and inserting ``subparagraph'' each place it appears.
The Commentary to Sec. 8B2.1 captioned ``Application Notes'' is
amended in Note 2(D) by striking ``subdivision'' and inserting
``subparagraph''.
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).--Subsection
(b)(7) has two aspects.
First, the organization should respond appropriately to the
criminal conduct. The organization should take reasonable steps, as
warranted under the circumstances, to remedy the harm resulting from
the criminal conduct. These steps may include, where appropriate,
providing restitution to identifiable victims, as well as other forms
of remediation. Other reasonable steps to respond appropriately to the
criminal conduct may include self-reporting and cooperation with
authorities.
Second, the organization should act appropriately to prevent
further similar criminal conduct, including assessing the compliance
and ethics program and making modifications necessary to ensure the
program is effective. The steps taken should be consistent with
subsections (b)(5) and (c) and may include the use of an outside
professional advisor to ensure adequate assessment and implementation
of any modifications.''; and in Note 7, as redesignated by this
amendment, by striking ``subdivision'' and inserting ``subparagraph''
each place it appears.
Section 8C2.5(f)(3) is amended in subparagraph (A) by striking
``subdivision (B)'' and inserting ``subparagraphs (B) and (C)''; and by
adding at the end the following:
``(C) Subparagraphs (A) and (B) shall not apply if--
(i) The individual or individuals with operational
responsibility for the compliance and ethics program (see Sec.
8B2.1(b)(2)(C)) have direct reporting obligations to the governing
authority or an appropriate subgroup thereof (e.g., an audit
committee of the board of directors);
(ii) The compliance and ethics program detected the offense
before discovery outside the organization or before such discovery
was reasonably likely;
(iii) The organization promptly reported the offense to
appropriate governmental authorities; and
(iv) No individual with operational responsibility for the
compliance and ethics program participated in, condoned, or was
willfully ignorant of the offense.''.
The Commentary to Sec. 8C2.5 captioned ``Application Notes'' is
amended in Note 10 in the second sentence by inserting ``or
(f)(3)(C)(iii)'' after ``subsection (f)(2)''; by redesignating Notes 11
through 14 as Notes 12 through 15, respectively; and by inserting after
Note 10 the following:
11. For purposes of subsection (f)(3)(C)(i), an individual has
`direct reporting obligations' to the governing authority or an
appropriate subgroup thereof if the individual has express authority
to communicate personally to the governing authority or appropriate
subgroup thereof (A) promptly on any matter involving criminal
conduct or potential criminal conduct, and (B) no less than annually
on the implementation and effectiveness of the compliance and ethics
program.
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
paragraph (1), the organization shall notify its employees and
shareholders of its criminal behavior and its program referred to in
paragraph (1). Such notice shall be in a form prescribed by the
court.
(3) 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 paragraph (1). Among other
things, reports under subparagraph (B) 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.
(4) The organization shall 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.
(5) 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 or experts
engaged by the court; and (B) interrogation of
[[Page 27395]]
knowledgeable individuals within the organization. Compensation to
and costs of any experts engaged by the court shall be paid by the
organization.
(6) The organization shall 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 Sec. 8D1.4 captioned ``Application Note'' is
amended in Note 1 by striking ``(a)(3) through (6)''; and by striking
``(c)(3)'' and inserting ``(b)(3)''.
Reason for Amendment: This amendment makes several changes to
Chapter Eight of the Guidelines Manual regarding the sentencing of
organizations.
First, the amendment amends the Commentary to Sec. 8B2.1
(Effective Compliance and Ethics Program) by adding an application note
that clarifies the remediation efforts required to satisfy the seventh
minimal requirement for an effective compliance and ethics program
under subsection (b)(7). Subsection (b)(7) requires an organization,
after criminal conduct has been detected, to take reasonable steps (1)
to respond appropriately to the criminal conduct and (2) to prevent
further similar criminal conduct.
The new application note describes the two aspects of subsection
(b)(7). With respect to the first aspect, the application note provides
that the organization should take reasonable steps, as warranted under
the circumstances, to remedy the harm resulting from the criminal
conduct. The application note further provides that such steps may
include, where appropriate, providing restitution to identifiable
victims, other forms of remediation, and self-reporting and cooperation
with authorities. With respect to the second aspect, the application
note provides that an organization should assess the compliance and
ethics program and make modifications necessary to ensure the program
is effective. The application note further provides that such steps
should be consistent with Sec. 8B2.1(b)(5) and (c), which also require
assessment and modification of the program, and may include the use of
an outside professional advisor to ensure adequate assessment and
implementation of any modifications.
This application note was added in response to public comment and
testimony suggesting that further guidance regarding subsection (b)(7)
may encourage organizations to take reasonable steps upon discovery of
criminal conduct. The steps outlined by the application note are
consistent with factors considered by enforcement agencies in
evaluating organizational compliance and ethics practices.
Second, the amendment amends subsection (f) of Sec. 8C2.5
(Culpability Score) to create a limited exception to the general
prohibition against applying the 3-level decrease for having an
effective compliance and ethics program when an organization's high-
level or substantial authority personnel are involved in the offense.
Specifically, the amendment adds subsection (f)(3)(C), which allows an
organization to receive the decrease if the organization meets four
criteria: (1) The individual or individuals with operational
responsibility for the compliance and ethics program have direct
reporting obligations to the organization's governing authority or
appropriate subgroup thereof; (2) the compliance and ethics program
detected the offense before discovery outside the organization or
before such discovery was reasonably likely; (3) the organization
promptly reported the offense to the appropriate governmental
authorities; and (4) no individual with operational responsibility for
the compliance and ethics program participated in, condoned, or was
willfully ignorant of the offense.
The new subsection (f)(3)(C) responds to concerns expressed in
public comment and testimony that the general prohibition in Sec.
8C2.5(f)(3) operates too broadly and that internal and external
reporting of criminal conduct could be better encouraged by providing
an exception to that general prohibition in appropriate cases.
The amendment also adds an application note that describes the
``direct reporting obligations'' necessary to meet the first criterion
under Sec. 8C2.5(f)(3)(C). The application note provides that an
individual has ``direct reporting obligations'' if the individual has
express authority to communicate personally to the governing authority
``promptly on any matter involving criminal conduct or potential
criminal conduct'' and ``no less than annually on the implementation
and effectiveness of the compliance and ethics program''. The
application note responds to public comment and testimony regarding the
challenges operational compliance personnel may face when seeking to
report criminal conduct to the governing authority of an organization
and encourages compliance and ethics policies that provide operational
compliance personnel with access to the governing authority when
necessary.
Third, the amendment amends Sec. 8D1.4 (Recommended Conditions of
Probation--Organizations (Policy Statement)) to augment and simplify
the recommended conditions of probation for organizations. The
amendment removes the distinction between conditions of probation
imposed solely to enforce a monetary penalty and conditions of
probation imposed for any other reason so that all conditional
probation terms are available for consideration by the court in
determining an appropriate sentence.
Finally, the amendment makes technical and conforming changes to
various provisions in Chapter Eight.
8. Amendment: 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 Sec. 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 Sec. 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).''.
The Commentary to Sec. 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.)''.
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 in each of paragraphs (1) and (2) by
inserting ``or paleontological resource'' after ``heritage resource'';
and in paragraph (5) by inserting ``or paleontological resources''
after ``heritage resources''.
The Commentary to Sec. 2B1.5 captioned ``Statutory Provisions'' is
amended by inserting ``470aaa-5,'' after ``16 U.S.C. Sec. Sec. ''.
The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is
amended in Note 1 by redesignating subparagraphs (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:
[[Page 27396]]
``(B) `Paleontological resource' has the meaning given such term in
16 U.S.C. 470aaa.''.
The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is
amended in Note 2 by striking ``Cultural Heritage'' both places it
appears; by striking ``cultural heritage'' each place it appears; and
by inserting ``, e.g.,'' after ``See'' each place it appears.
The Commentary to Sec. 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 place it appears; and by inserting ``or
paleontological resources'' after ``resources)''.
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'',
including the period, and in the lines referenced to ``Toluene'' by
striking the semicolon and inserting a period.
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''; and by inserting after the line referenced to 42 U.S.C.
1396h(b)(2) the following: ``42 U.S.C. 1396w-2 2H3.1''.
Reason for Amendment: This multi-part amendment responds to
miscellaneous issues arising from legislation recently enacted and
other miscellaneous guideline application issues.
First, the amendment r