Sentencing Guidelines for United States Courts, 54700-54705 [2010-22337]
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on, and analysis of, recidivism by child
pornography offenders; and (C) possible
recommendations to Congress on any
statutory changes that may be
appropriate.
(7) Continuation of its review of
departures within the guidelines,
including provisions in Parts H and K
of Chapter Five of the Guidelines
Manual, and the extent to which
pertinent statutory provisions prohibit,
discourage, or encourage certain factors
as forming the basis for departure from
the guideline sentence.
(8) Continuation of its multi-year
study of the statutory and guideline
definitions of ‘‘crime of violence’’,
‘‘aggravated felony’’, ‘‘violent felony’’,
and ‘‘drug trafficking offense’’, including
(A) an examination of relevant circuit
conflicts regarding whether any offense
is categorically a ‘‘crime of violence’’,
‘‘aggravated felony’’, ‘‘violent felony’’, or
‘‘drug trafficking offense’’ for purposes of
triggering an enhanced sentence under
certain Federal statutes and guidelines;
(B) possible consideration of an
amendment to provide an alternative
approach to the ‘‘categorical approach’’,
see Taylor v. United States, 495 U.S. 575
(1990); Shepard v. United States, 544
U.S. 13 (2005), for determining the
applicability of guideline
enhancements; and (C) possible
consideration of an amendment to
provide that the time period limitations
in subsection (e) of § 4A1.2 (Definitions
and Instructions for Computing
Criminal History) apply for purposes of
determining the applicability of
enhancements in § 2L1.2 (Unlawfully
Entering or Remaining in the United
States).
(9) Consideration of a possible
amendment to provide a reduction in
the offense level for certain deportable
aliens who agree to a stipulated order of
deportation.
(10) Examination of, and possible
amendments to, the guidelines and
policy statements in Part D of Chapter
Five of the Guidelines Manual
pertaining to supervised release.
(11) Continued study of alternatives to
incarceration, including possible
consideration of any changes to the
Guidelines Manual that might be
appropriate in light of the information
obtained from that study.
(12) Resolution of circuit conflicts,
pursuant to the Commission’s
continuing authority and responsibility,
under 28 U.S.C. 991(b)(1)(B) and
Braxton v. United States, 500 U.S. 344
(1991), to resolve conflicting
interpretations of the guidelines by the
Federal courts.
(13) Multi-year review of the
guidelines pertaining to environmental
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crimes, with particular consideration of
whether the fine provisions in Part C of
Chapter Eight of the Guidelines Manual
should apply to such offenses.
(14) Consideration of miscellaneous
guideline application issues coming to
the Commission’s attention from case
law and other sources.
Authority: 28 U.S.C. 994(a), (o); USSC
Rules of Practice and Procedure 5.2.
[FR Doc. 2010–22340 Filed 9–7–10; 8:45 am]
UNITED STATES SENTENCING
COMMISSION
Sentencing Guidelines for United
States Courts
United States Sentencing
Commission.
ACTION: Notice of proposed amendment;
request for comment.
AGENCY:
Pursuant to section 994(a),
(o), and (p) of title 28, United States
Code, and section 8 of the Fair
Sentencing Act of 2010, Public Law
111–220, the Commission is considering
promulgating a temporary, emergency
amendment to the sentencing
guidelines, policy statements, and
commentary to decrease penalties for
offenses involving cocaine base (‘‘crack’’
cocaine) and to account for certain
aggravating and mitigating
circumstances in drug trafficking cases.
This notice sets forth the proposed
amendment and, for each part of the
proposed amendment, a synopsis of the
issues addressed by that part. This
notice also provides multiple issues for
comment, some of which are contained
within the proposed amendment.
The specific proposed amendment
(and issues for comment) in this notice
is as follows: A proposed temporary,
emergency amendment and issues for
comment regarding offenses involving
crack cocaine (particularly offenses
covered by §§ 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with
Intent to Commit These Offenses);
(Attempt or Conspiracy) and 2D2.1
(Unlawful Possession; Attempt or
Conspiracy)) and to account for certain
aggravating and mitigating
circumstances in drug trafficking cases
(particularly cases under § 2D1.1) to
implement section 8 of the Fair
Sentencing Act of 2010, Public Law
111–220.
DATES: Written public comment on the
proposed emergency amendment should
SUMMARY:
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Michael Courlander, Public Affairs
Officer, Telephone: (202) 502–4597.
The
United States Sentencing Commission is
an independent agency in the judicial
branch of the United States
Government. The Commission
promulgates sentencing guidelines and
policy statements for federal courts
pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews
and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o)
and submits guideline amendments to
the Congress not later than the first day
of May of each year pursuant to 28
U.S.C. 994(p).
The Commission seeks comment on
the proposed amendment and issues for
comment.
The parts of the proposed amendment
in this notice are presented in one of
two formats. First, some parts of the
proposed amendment are proposed as
specific revisions to a guideline or
commentary. Bracketed text within a
part of the proposed amendment
indicates a heightened interest on the
Commission=s part on comment and
suggestions regarding alternative policy
choices; for example, a proposed
enhancement of [2][4][6] levels indicates
that the Commission is considering, and
invites comment on, alternative policy
choices regarding the appropriate level
of enhancement. Similarly, bracketed
text within a specific offense
characteristic or application note means
that the Commission specifically invites
comment on whether the proposed
provision is appropriate. Second, the
Commission has highlighted certain
issues for comment and invites
suggestions on how the Commission
should respond to those issues.
Additional information pertaining to
the proposed amendment described in
this notice may be accessed through the
Commission’s Web site at https://
www.ussc.gov.
SUPPLEMENTARY INFORMATION:
BILLING CODE 2211–01–P
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Public comment should be
sent to: United States Sentencing
Commission, One Columbus Circle, NE.,
Suite 2–500, Washington, DC 20002–
8002, Attention: Public Affairs.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
William K. Sessions III,
Chair.
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be received by the Commission not later
than October 8, 2010, in anticipation of
a vote to promulgate the emergency
amendment by November 1, 2010.
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Authority: 28 U.S.C. 994(a), (o), (p), (x);
section 8 of the Fair Sentencing Act of 2010,
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Pub. L. 111–220; USSC Rules of Practice and
Procedure, Rules 4.4, 4.5.
William K. Sessions, III,
Chair.
1. Proposed Emergency Amendment:
Fair Sentencing Act of 2010
Synopsis of Proposed Amendment:
The Fair Sentencing Act of 2010, Public
Law 111–220 (the ‘‘Act’’), was signed
into law on August 3, 2010. The Act
reduces statutory penalties for cocaine
base (crack cocaine) offenses and
eliminates the mandatory minimum
sentence for simple possession of crack
cocaine. The Act also contains
directives to the Commission to review
and amend the sentencing guidelines to
account for certain aggravating and
mitigating circumstances in drug
trafficking cases.
Section 8 of the Act invokes the
Commission’s emergency, temporary
amendment authority under section
21(a) of the Sentencing Act of 1987 (28
U.S.C. 994 note) and directs the
Commission to promulgate within 90
days—i.e., not later than November 1,
2010—the amendments to the
Guidelines Manual provided for by the
Act. It provides in full as follows:
Sec. 8. Emergency Authority for United
States Sentencing Commission
The United States Sentencing
Commission shall—
(1) Promulgate the guidelines, policy
statements, or amendments provided for
in this Act as soon as practicable, and
in any event not later than 90 days after
the date of enactment of this Act, in
accordance with the procedure set forth
in section 21(a) of the Sentencing Act of
1987 (28 U.S.C. 994 note), as though the
authority under that Act had not
expired; and
(2) Pursuant to the emergency
authority provided under paragraph (1),
make such conforming amendments to
the Federal sentencing guidelines as the
Commission determines necessary to
achieve consistency with other
guideline provisions and applicable
law.
Section 21(a) of the Sentencing Act of
1987 provides in full as follows:
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Sec. 21. Emergency Guidelines
Promulgation Authority
(a) In General.—In the case of—
(1) An invalidated sentencing
guideline;
(2) The creation of a new offense or
amendment of an existing offense; or
(3) Any other reason relating to the
application of a previously established
sentencing guideline, and determined
by the United States Sentencing
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Commission to be urgent and
compelling;
the Commission, by affirmative vote of
at least four members of the
Commission, and pursuant to its rules
and regulations and consistent with all
pertinent provisions of title 28 and title
18, United States Code, shall
promulgate and distribute to all courts
of the United States and to the United
States Probation System a temporary
guideline or amendment to an existing
guideline, to remain in effect until and
during the pendency of the next report
to Congress under section 994(p) of title
28, United States Code.
Any temporary amendment
promulgated by the Commission under
the section 21(a) authority will expire
not later than November 1, 2011. See
section 21(a); 28 U.S.C. 994(p). The
Commission will continue work on the
issues raised by the Act during the
regular amendment cycle ending May 1,
2011, with a view to re-promulgating
any temporary amendment as a
permanent amendment (in its original
form, or with revisions) under 28 U.S.C.
994(p).
The proposed amendment and issues
for comment address the issues arising
under the Act in the following manner:
(A) Changes to Statutory Terms of
Imprisonment for Crack Cocaine
Issue for Comment:
1. Federal drug laws establish three
tiers of penalties for manufacturing and
trafficking in cocaine, each based on the
amount of cocaine involved. See 21
U.S.C. 841(b)(1)(A), (B), (C), 960(b)(1),
(2), (3). For smaller quantities, the
maximum term of imprisonment is 20
years, and there is no mandatory
minimum term of imprisonment. If the
amount of cocaine involved reaches a
specified quantity, however, the
maximum term increases to 40 years,
and a mandatory minimum term of 5
years applies. If the amount of cocaine
reaches ten times that specified
quantity, the maximum term is life, and
a mandatory minimum term of 10 years
applies.
Section 2 of the Act amended these
laws to raise the specified quantities of
crack cocaine associated with these two
higher tiers of penalties. Before the Act,
the 5-year mandatory minimum applied
to offenses involving 5 grams (or more)
of crack cocaine, and the 10-year
mandatory minimum applied to
offenses involving 50 grams (or more) of
crack cocaine. Section 2 of the Act
raised these quantities to 28 grams and
280 grams, respectively.
The Commission requests comment
on what temporary amendments to the
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Guidelines Manual it should promulgate
in response to the statutory changes
made by section 2 of the Act. In
particular, the Commission requests
comment on what amendments should
be made to the Drug Quantity Table in
§ 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking
(Including Possession with Intent to
Commit These Offenses); Attempt or
Conspiracy). When Congress has
provided statutory mandatory minimum
sentences based on drug quantity, the
Commission has generally responded by
incorporating the statutory mandatory
minimum sentences into the Drug
Quantity Table and extrapolating
upward and downward to set guideline
sentencing ranges for all drug quantities.
The drug quantity thresholds in the
Drug Quantity Table have generally
been set so as to provide base offense
levels corresponding to guideline ranges
that are above the statutory mandatory
minimum penalties.
Until 2007, the drug quantity
thresholds for crack cocaine followed
the same principle. Accordingly,
offenses involving 5 grams or more of
crack cocaine were assigned a base
offense level (level 26) corresponding to
a sentencing guideline range of 63 to 78
months for a defendant in Criminal
History Category I (a guideline range
that exceeds the 5-year statutory
minimum for such offenses by at least
three months). Similarly, offenses
involving 50 grams or more of crack
cocaine were assigned a base offense
level (level 32) corresponding to a
sentencing guideline range of 121 to 151
months for a defendant in Criminal
History Category I (a guideline range
that exceeds the 10-year statutory
minimum for such offenses by at least
1 month). In Amendment 706, the
Commission amended the Drug
Quantity Table for crack cocaine,
reducing the base offense levels for
these quantities to level 24 and level 30,
respectively, and extrapolating upward
and downward for other crack cocaine
quantities. See USSG App. C,
Amendment 706 (effective November 1,
2007). Base offense levels 24 and 30
each correspond to a guideline range for
a defendant in Criminal History
Category I that includes the statutory
mandatory minimum penalty.
For base offense level 24, the
guideline range is 51–63 months; for
base offense level 30, the guideline
range is 97–121 months. The
Commission also amended the
commentary to § 2D1.1 to revise the
manner in which combined offense
levels are determined in cases involving
both crack cocaine and one or more
other controlled substances. See USSG
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App. C, Amendment 715 (effective May
1, 2008).
Given the statutory changes made by
section 2 of the Act, how should the
Commission revise the Drug Quantity
Table for offenses involving crack
cocaine?
BOL
38
36
34
32
30
28
26
24
22
20
18
16
14
12
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Quantity under level 26 option
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(B) Elimination of Mandatory Minimum
for Simple Possession of Crack Cocaine
Synopsis of Proposed Amendment:
This part of the proposed amendment
responds to section 3 of the Act, which
amended 21 U.S.C. 844(a) to eliminate
the 5-year mandatory minimum term of
imprisonment (and 20-year statutory
maximum) for simple possession of
more than 5 grams of crack cocaine (or,
for certain repeat offenders, more than
1 gram of crack cocaine). Accordingly,
the statutory penalty for simple
possession of crack cocaine is now the
same as for simple possession of most
other controlled substances: for a first
offender, a maximum term of
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25.2 KG or more.
At least 8.4 KG but less than 25.2 KG.
At least 2.8 KG but less than 8.4 KG.
At least 840 G but less than 2.8 KG.
At least 280 G but less than 840 G.
At least 196 G but less than 280 G.
At least 112 G but less than 196 G.
At least 28 G but less than 112 G.
At least 22.4 G but less than 28 G.
At least 16.8 G but less than 22.4 G.
At least 11.2 G but less than 16.8 G.
At least 5.6 G but less than 11.2 G.
At least 2.8 G but less than 5.6 G.
Less than 2.8 G.
imprisonment of one year; for repeat
offenders, maximum terms of 2 years or
3 years, and minimum terms of 15 days
or 90 days, depending on the prior
convictions. See 21 U.S.C. 844(a).
Offenses under section 844(a) are
referenced in Appendix A (Statutory
Index) to § 2D2.1 (Unlawful Possession;
Attempt or Conspiracy). Section 2D2.1
contains a cross reference at subsection
(b)(1) that was established by the
Commission in 1989 to address the
statutory minimum in section 844(a).
See USSG App. C, Amendment 304
(effective November 1, 1989). Under the
cross reference, an offender who
possessed more than 5 grams of crack
cocaine is sentenced under the drug
trafficking guideline, § 2D1.1.
To reflect the elimination of this
statutory minimum, the proposed
amendment deletes as obsolete the cross
reference at § 2D2.1(b)(1). Conforming
changes to the commentary are also
made.
Proposed Amendment:
Section 2D2.1(b) is amended by
striking ‘‘References’’ and inserting
‘‘Reference’’; by striking subdivision (1);
and by redesignating subdivision (2) as
subdivision (1).
The Commentary to § 2D2.1 captioned
‘‘Background’’ is amended by striking
‘‘five’’ and inserting ‘‘three’’; and by
striking the last paragraph.
(C) Enhancements and Adjustments
Synopsis of Proposed Amendment:
This part of the proposed amendment
responds to sections 5, 6, and 7 of the
Act, which contain directives to the
Commission to provide certain
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statutory minimum penalties
correspond to levels 24 and 30, using
the new drug quantities established by
the Act (the ‘‘level 24 option’’)? A
comparison of the base offense levels
(‘‘BOL’’) and quantities for these options
is as follows:
Quantity under level 24 option
8.4 KG or more ...............................................................
At least 2.8 KG but less than 8.4 KG .............................
At least 840 G but less than 2.8 KG ..............................
At least 280 G but less than 840 G ................................
At least 196 G but less than 280 G ................................
At least 112 G but less than 196 G ................................
At least 28 G but less than 112 G ..................................
At least 22.4 G but less than 28 G .................................
At least 16.8 G but less than 22.4 G ..............................
At least 11.2 G but less than 16.8 G ..............................
At least 5.6 G but less than 11.2 G ................................
At least 2.8 G but less than 5.6 G ..................................
At least 1.4 G but less than 2.8 G ..................................
Less than 1.4 G ..............................................................
Whichever option is adopted,
conforming changes to the commentary
to § 2D1.1 will need to be made to revise
the manner in which combined offense
levels are determined in cases involving
crack cocaine and one or more other
controlled substances. Under either
option, 1 gram of crack cocaine would
be equivalent to 3,571 grams of
marijuana. However, if the level 26
option is adopted, the combined offense
level in such a case would be
determined under Application Note 10
in the same manner as for any other case
involving more than one controlled
substance, i.e., Application Note 10(D)
would not apply. If the level 24 option
is adopted, in contrast, Application
Note 10(D) would continue to apply,
except that Application Note 10(D)(ii)(I)
would be amended to read ‘‘the offense
involved 25.2 kg or more, or less than
1.4 g, of cocaine base; or’’, and the
examples in Application Note 10(D)(iii)
would be revised.
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In particular, should the base offense
levels for crack cocaine again be set so
that the statutory minimum penalties
correspond to levels 26 and 32, using
the new drug quantities established by
the Act (the ‘‘level 26 option’’)? Or
should the base offense levels for crack
cocaine continue to be set so that the
enhancements and adjustments for drug
trafficking offenses.
Violence Enhancement
First, this part of the proposed
amendment responds to section 5 of the
Act, which directs the Commission to
‘‘review and amend the Federal
sentencing guidelines to ensure that the
guidelines provide an additional
penalty increase of at least 2 offense
levels if the defendant used violence,
made a credible threat to use violence,
or directed the use of violence during a
drug trafficking offense.’’
This part of the proposed amendment
implements this directive by amending
§ 2D1.1 to provide a new specific
offense characteristic at subsection
(b)(2) that provides an enhancement of
[2][4][6] levels if violence as described
in the directive was involved. A
conforming amendment to Application
Note 3 is also made.
Bribery Enhancement
Second, this part of the proposed
amendment responds to section 6(1) of
the Act, which directs the Commission
to ‘‘review and amend the Federal
sentencing guidelines to ensure an
additional increase of at least 2 offense
levels if * * * the defendant bribed, or
attempted to bribe, a Federal, State, or
local law enforcement official in
connection with a drug trafficking
offense.’’
This part of the proposed amendment
implements this directive by amending
§ 2D1.1 to establish a new specific
offense characteristic at subsection
(b)(11) that provides an enhancement of
[2][4] levels if the defendant [was
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convicted of bribing or attempting to
bribe][bribed or attempted to bribe] a
law enforcement officer to facilitate the
commission of the offense.
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Drug Establishment Enhancement
Third, this part of the proposed
amendment responds to section 6(2) of
the Act, which directs the Commission
to ‘‘review and amend the Federal
sentencing guidelines to ensure an
additional increase of at least 2 offense
levels if * * * the defendant
maintained an establishment for the
manufacture or distribution of a
controlled substance, as generally
described in section 416 of the
Controlled Substances Act (21 U.S.C.
856).’’
This part of the proposed amendment
implements this directive by amending
§ 2D1.1 to establish a new specific
offense characteristic at subsection
(b)(12) that provides an enhancement of
[2][4] levels if the defendant maintained
an establishment for the manufacture or
distribution of a controlled substance, as
described in 21 U.S.C. 856.
Enhancement Based on ‘‘SuperAggravating’’ Factors
Fourth, this part of the proposed
amendment responds to section 6(3) of
the Act, which directs the Commission
to ‘‘review and amend the Federal
sentencing guidelines to ensure an
additional increase of at least 2 offense
levels if * * * (A) the defendant is an
organizer, leader, manager, or
supervisor of drug trafficking activity
subject to an aggravating role
enhancement under the guidelines; and
(B) the offense involved 1 or more of the
following super-aggravating factors:’’
(i) The defendant—
(I) Used another person to purchase,
sell, transport, or store controlled
substances;
(II) Used impulse, fear, friendship,
affection, or some combination thereof
to involve such person in the offense;
and
(III) Such person had a minimum
knowledge of the illegal enterprise and
was to receive little or no compensation
from the illegal transaction.
(ii) The defendant—
(I) Knowingly distributed a controlled
substance to a person under the age of
18 years, a person over the age of 64
years, or a pregnant individual;
(II) Knowingly involved a person
under the age of 18 years, a person over
the age of 64 years, or a pregnant
individual in drug trafficking;
(III) Knowingly distributed a
controlled substance to an individual
who was unusually vulnerable due to
physical or mental condition, or who
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was particularly susceptible to criminal
conduct; or
(IV) Knowingly involved an
individual who was unusually
vulnerable due to physical or mental
condition, or who was particularly
susceptible to criminal conduct, in the
offense.
(iii) The defendant was involved in
the importation into the United States of
a controlled substance.
(iv) The defendant engaged in witness
intimidation, tampered with or
destroyed evidence, or otherwise
obstructed justice in connection with
the investigation or prosecution of the
offense.
(v) The defendant committed the drug
trafficking offense as part of a pattern of
criminal conduct engaged in as a
livelihood.
This part of the proposed amendment
implements this directive by creating a
new enhancement of [2][4] levels in
subsection (b)(14) of § 2D1.1 if the
defendant receives an adjustment under
§ 3B1.1 and the offense involved one or
more of the factors described in the
directive.
Downward Adjustment Based on
Certain Mitigating Factors
Fifth, this part of the proposed
amendment responds to section 7(2) of
the Act, which directs the Commission
to ‘‘review and amend the Federal
sentencing guidelines and policy
statements to ensure that * * * there is
an additional reduction of 2 offense
levels if the defendant—’’
(A) Otherwise qualifies for a minimal
role adjustment under the guidelines
and had a minimum knowledge of the
illegal enterprise;
(B) Was to receive no monetary
compensation from the illegal
transaction; and
(C) Was motivated by an intimate or
familial relationship or by threats or fear
when the defendant was otherwise
unlikely to commit such an offense.
This part of the proposed amendment
implements this directive by creating a
new downward adjustment of 2 levels
in subsection (b)(15) of § 2D1.1 if the
defendant receives an adjustment under
§ 3B1.2(a) and the other factors
described in the directive apply.
Technical and Conforming Changes
Finally, to reflect the renumbering of
specific offense characteristics in
§ 2D1.1(b) by this part of the proposed
amendment, this part of the proposed
amendment makes technical and
conforming changes to the commentary
to § 2D1.1 and to § 2D1.14 (NarcoTerrorism).
Issues for comment are also included.
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Proposed Amendment:
Section 2D1.1(b) is amended by
redesignating subdivisions (10) and (11)
as subdivisions (13) and (16); by
redesignating subdivisions (2) through
(9) as subdivisions (3) through (10); by
inserting after subdivision (1) the
following:
‘‘(2) If the defendant used violence,
made a credible threat to use violence,
or directed the use of violence, increase
by [2][4][6] levels.’’;
by inserting after subdivision (10), as
redesignated by this amendment, the
following:
‘‘(11) If the defendant [was convicted
of bribing or attempting to bribe][bribed
or attempted to bribe] a law enforcement
officer to facilitate the commission of
the offense, increase by [2][4] levels.
(12) If the defendant maintained an
establishment for the manufacture or
distribution of a controlled substance, as
described in 21 U.S.C. § 856, increase by
[2][4] levels.’’;
by inserting after subdivision (13), as
redesignated by this amendment, the
following:
‘‘(14) If the defendant receives an
adjustment under § 3B1.1 (Aggravating
Role) and the offense involved 1 or more
of the following factors:
(A) (i) The defendant used impulse,
fear, friendship, affection, or some
combination thereof to involve another
individual in the purchase, sale,
transport, or storage of controlled
substances; and (ii) the individual (I)
was to receive little or no compensation
from that purchase, sale, transport, or
storage of controlled substances and (II)
had minimal knowledge of [the scope
and structure of] the enterprise;
(B) the defendant knowingly (i)
distributed a controlled substance to an
individual under the age of 18 years, an
individual over the age of 64 years, a
pregnant individual, an individual who
was unusually vulnerable due to
physical or mental condition, or an
individual who was particularly
susceptible to criminal conduct, or (ii)
involved such an individual in the
offense;
(C) the defendant was involved in the
importation of a controlled substance;
(D) the defendant engaged in witness
intimidation, tampered with or
destroyed evidence, or otherwise
obstructed justice;
(E) the defendant committed the
offense as part of a pattern of criminal
conduct engaged in as a livelihood;
increase by [2][4] levels.
(15) If the defendant receives an
adjustment under subsection (a) of
§ 3B1.2 (Mitigating Role) and the offense
involved all of the following factors:
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(A) The defendant was motivated by
an intimate or familial relationship or
by threats or fear to commit the offense
and was otherwise unlikely to commit
such an offense;
(B) the defendant was to receive no
monetary compensation from the
offense; and
(C) the defendant had minimal
knowledge of [the scope and structure
of] the enterprise,
decrease by 2 levels.’’.
The Commentary to § 2D1.1 captioned
‘‘Application Notes’’ is amended in Note
3 by inserting ‘‘in subsection (b)(1)’’ after
‘‘weapon possession’’; by striking ‘‘The
adjustment’’ and inserting ‘‘Subsection
(b)(1)’’; by striking ‘‘the enhancement’’
and inserting ‘‘subsection (b)(1)’’; and by
striking the last sentence and inserting
the following:
‘‘Although the enhancements for
weapon possession in subsection (b)(1)
and violence in subsection (b)(2) may be
triggered by the same conduct (such as
where the defendant uses the possessed
weapon to make a credible threat to use
violence), they are to be applied
cumulatively (added together), as is
generally the case when two or more
specific offense characteristics each
apply. See § 1B1.1 (Application
Instructions), Application Note 4(A).’’.
The Commentary to § 2D1.1 captioned
‘‘Application Notes’’ is amended in Note
8 in the last paragraph by striking ‘‘(2)’’
and inserting ‘‘(3)’’;
in Note 18 by striking ‘‘(2)’’ and inserting
‘‘(3)’’, and by striking ‘‘(4)’’ and
inserting ‘‘(5)’’;
in Note 19 by striking ‘‘(10)’’ and
inserting ‘‘(13)’’ in both places;
in Note 20 by striking ‘‘(10)’’ and
inserting ‘‘(13)’’ in both places;
in Note 21 by striking ‘‘(11)’’ and
inserting ‘‘(16)’’ each place it appears;
in Note 23 by striking ‘‘(6)’’ and inserting
‘‘(7)’’ each place it appears;
in Note 25 by striking ‘‘(7)’’ and inserting
‘‘(8)’’ in both places;
and in Note 26 by striking ‘‘(8)’’ and
inserting ‘‘(9)’’ in both places.
The Commentary to § 2D1.1 captioned
‘‘Background’’ is amended by inserting
after the paragraph that begins ‘‘For
marihuana plants’’ the following:
‘‘Subsection (b)(2) implements the
directive to the Commission in section
5 of Public Law 111–220.’’;
In the paragraph that begins ‘‘Specific
Offense Characteristic’’ by striking
‘‘Specific Offense Characteristic (b)(2)’’
and inserting ‘‘Subsection (b)(3)’’;
By inserting after the paragraph that
begins ‘‘The dosage weight’’ the
following:
‘‘Subsection (b)(11) implements the
directive to the Commission in section
6(1) of Public Law 111–220.
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Subsection (b)(12) implements the
directive to the Commission in section
6(2) of Public Law 111–220.’’;
In the paragraph that begins
‘‘Subsection (b)(10)(A)’’ by striking ‘‘(10)’’
and inserting ‘‘(13)’’;
In the paragraph that begins
‘‘Subsections (b)(10)(C)(ii)’’ by striking
‘‘(10)’’ and inserting ‘‘(13)’’;
and by adding at the end the
following:
‘‘Subsection (b)(14) implements the
directive to the Commission in section
6(1) of Public Law 111–220.
Subsection (b)(15) implements the
directive to the Commission in section
7(2) of Public Law 111–220.’’
Section 2D1.14(a)(1) is amended by
striking ‘‘(11)’’ and inserting ‘‘(16)’’.
Issues for Comment:
1. In the proposed new violence
enhancement in subsection (b)(2) of
§ 2D1.1, should the Commission provide
a single level of enhancement for any
conduct covered by the violence
enhancement, or should the
Commission distinguish among the
different categories of conduct (use of
violence; credible threat to use violence;
directing others to use violence) by
assigning different levels of
enhancement to each?
2. The proposed amendment would
amend Application Note 3 to § 2D1.1 to
provide that the enhancements for
weapon possession in subsection (b)(1)
and violence in subsection (b)(2) are to
be applied cumulatively. Should the
Commission instead provide that the
enhancements are not to be applied
cumulatively?
3. The Guidelines Manual uses the
term ‘‘violence’’ in several provisions,
e.g., § 5C1.2 (Limitation on
Applicability of Statutory Minimum
Sentences in Certain Cases) (the ‘‘safety
valve’’ provision), without defining the
term. Should the term ‘‘violence’’ be
defined for purposes of the new
violence enhancement in subsection
(b)(2)? If so, what should the definition
be? How, if at all, should such a
definition interact with the other
provisions in the Manual where the
term is not defined?
4. The proposed new bribery
enhancement in § 2D1.1(b)(11) may
interact with other provisions in the
Guidelines Manual, such as § 3C1.1
(Obstructing or Impeding the
Administration of Justice). How should
the new bribery enhancement interact
with such other provisions? In
particular, should they be applied
cumulatively, or should they not be
applied cumulatively?
5. The proposed new enhancement in
§ 2D1.1(b)(12) would apply if the
defendant ‘‘maintained an establishment
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for the manufacture or distribution of a
controlled substance, as described in 21
U.S.C. 856.’’ Should this enhancement
apply more broadly, e.g., if the
defendant ‘‘committed an offense
described in 21 U.S.C. 856’’? How
should this proposed new enhancement
in subsection (b)(12) interact with
§ 2D1.8 (Renting or Managing a Drug
Establishment; Attempt or Conspiracy)?
In particular, should the Commission
raise the alternative base offense level
26 in § 2D1.8 to [28][30]?
6. As an alternative to establishing
new specific offense characteristics at
subsections (b)(14) and (15) of § 2D1.1,
should the Commission instead
implement these directives in Chapter
Three? In particular, should the
Commission amend §§ 3B1.1 and 3B1.2,
or establish new Chapter Three
guidelines, to provide the adjustments
required by the directives?
7. For the proposed new specific
offense characteristic in § 2D1.1(b)(14),
should the Commission distinguish
among the different factors described by
the directive (e.g., the factors set forth in
subparagraphs (A) through (E) of the
proposed new § 2D1.1(b)(14)) by
assigning different levels to each? For
example, should the most egregious
factor be assigned an adjustment of [6]
levels, and other factors assigned
adjustments of [4] or [2] levels? If more
than one factor is present, should that
have a cumulative effect, warranting a
higher total adjustment for that
defendant? As an alternative, should the
Commission provide an upward
departure provision for cases in which
more than one factor is present?
8. The proposed new specific offense
characteristic in § 2D1.1(b)(14) may
interact with other provisions in the
Guidelines Manual, such as § 2D1.2
(Drug Offenses Occurring Near
Protected Locations or Involving
Underage or Pregnant Individuals;
Attempt or Conspiracy), § 3B1.4 (Using
a Minor to Commit a Crime), § 3C1.1
(Obstructing or Impeding the
Administration of Justice), and § 4B1.3
(Criminal Livelihood). How should the
new specific offense characteristic in
subsection (b)(14) interact with such
other provisions? In particular, should
they be applied cumulatively, or should
they not be applied cumulatively?
9. The proposed new specific offense
characteristic in § 2D1.1(b)(14) and the
proposed new specific offense
characteristics in § 2D1.1 for bribery (see
Part C of this proposed amendment) and
maintenance of a drug establishment
(see Part D of this proposed amendment)
all respond to section 6 of the Fair
Sentencing Act of 2010. How should
these provisions interact with each
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other? In particular, should they be
applied cumulatively, or should they
not be applied cumulatively?
10. This part of the proposed
amendment establishes several new
specific offense characteristics in
§ 2D1.1. What, if any, changes should
the Commission make to other Chapter
Two offense guidelines involving drug
trafficking to ensure consistency and
proportionality? Many such guidelines
refer to § 2D1.1 in determining the
offense level, but not in all cases. For
example, if the base offense level is
determined under subsection (a)(3) or
(a)(4) of § 2D1.2 (Drug Offenses
Occurring Near Protected Locations or
Involving Underage or Pregnant
Individuals; Attempt or Conspiracy), or
under subsection (a)(2) of § 2D1.5
(Continuing Criminal Enterprise;
Attempt or Conspiracy), or under
§ 2D1.11 (Unlawfully Distributing,
Importing, Exporting or Possessing a
Listed Chemical; Attempt or
Conspiracy), the new specific offense
characteristics would not apply. Should
the Commission establish similar
specific offense characteristics in
§ 2D1.2, § 2D1.5, and § 2D1.11?
11. What other changes, if any, should
the Commission make to the Guidelines
Manual under the emergency authority
provided by section 8 of the Act?
(D) Maximum Base Offense Level for
Minimal Role (‘‘Minimal Role Cap’’)
Synopsis of Proposed Amendment:
This part of the proposed amendment
responds to section 7(1) of the Act,
which contains a directive to the
Commission to ‘‘review and amend the
Federal sentencing guidelines and
policy statements to ensure that * * *
if the defendant is subject to a minimal
role adjustment under the guidelines,
the base offense level for the defendant
based solely on drug quantity shall not
exceed level 32.’’
This part of the proposed amendment
implements the directive by adding a
new sentence to the end of § 2D1.1(a)(5)
(the so-called ‘‘mitigating role cap’’), to
reflect the ‘‘minimal role cap’’ of level 32
required by the directive.
Proposed Amendment:
Section 2D1.1(a)(5) is amended by
adding at the end the following:
‘‘If the resulting offense level is greater
than level 32 and the defendant receives
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an adjustment under subsection (a) of
§ 3B1.2, decrease to level 32.’’.
[FR Doc. 2010–22337 Filed 9–7–10; 8:45 am]
BILLING CODE 2210–40–P
UNITED STATES SENTENCING
COMMISSION
Sentencing Guidelines for United
States Courts
United States Sentencing
Commission.
ACTION: Notice of period during which
individuals may apply to be appointed
to certain voting memberships of the
Practitioners Advisory Group; request
for applications.
AGENCY:
Because the terms of certain
voting members of the Practitioners
Advisory Group are expiring as of
October 2010, the United States
Sentencing Commission hereby invites
any individual who is eligible to be
appointed to succeed such a voting
member to apply. The voting
memberships covered by this notice are
two circuit memberships (for the
Second Circuit and District of Columbia
Circuit) and one at-large voting
membership. Applications should be
received by the Commission not later
than November 8, 2010. Applications
may be sent to Michael Courlander at
the address listed below.
DATES: Applications for voting
membership of the Practitioners
Advisory Group should be received not
later than November 8, 2010.
ADDRESSES: Send applications to:
United States Sentencing Commission,
One Columbus Circle, NE., Suite 2–500,
South Lobby, Washington, DC 20002–
8002, Attention: Public Affairs.
FOR FURTHER INFORMATION CONTACT:
Michael Courlander, Public Affairs
Officer, Telephone: (202) 502–4597.
SUPPLEMENTARY INFORMATION: The
Practitioners Advisory Group of the
United States Sentencing Commission is
a standing advisory group of the United
States Sentencing Commission pursuant
to 28 U.S.C. 995 and Rule 5.4 of the
Commission’s Rules of Practice and
Procedure. Under the charter for the
advisory group, the purpose of the
SUMMARY:
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54705
advisory group is (1) To assist the
Commission in carrying out its statutory
responsibilities under 28 U.S.C. 994(o);
(2) to provide to the Commission its
views on the Commission’s activities
and work, including proposed priorities
and amendments; (3) to disseminate to
defense attorneys, and to other
professionals in the defense community,
information regarding federal
sentencing issues; and (4) to perform
other related functions as the
Commission requests. The advisory
group consists of not more than 17
voting members, each of whom may
serve not more than two consecutive
three-year terms. Of those 17 voting
members, one shall be Chair, one shall
be Vice Chair, 12 shall be circuit
members (one for each federal judicial
circuit other than the Federal Circuit),
and three shall be at-large members.
To be eligible to serve as a voting
member, an individual must be an
attorney who (1) devotes a substantial
portion of his or her professional work
to advocating the interests of privatelyrepresented individuals, or of
individuals represented by private
practitioners through appointment
under the Criminal Justice Act of 1964,
within the federal criminal justice
system; (2) has significant experience
with federal sentencing or postconviction issues related to criminal
sentences; and (3) is in good standing of
the highest court of the jurisdiction or
jurisdictions in which he or she is
admitted to practice. Additionally, to be
eligible to serve as a circuit member, the
individual’s primary place of business
or a substantial portion of his or her
practice must be in the circuit
concerned. Each voting member is
appointed by the Commission.
The Commission invites any
individual who is eligible to be
appointed to a voting membership
covered by this notice to apply.
Authority: 28 U.S.C. 994(a), (o), (p), § 995;
USSC Rules of Practice and Procedure 5.2,
5.4.
William K. Sessions III,
Chair.
[FR Doc. 2010–22343 Filed 9–7–10; 8:45 am]
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[Federal Register Volume 75, Number 173 (Wednesday, September 8, 2010)]
[Notices]
[Pages 54700-54705]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-22337]
-----------------------------------------------------------------------
UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of proposed amendment; request for comment.
-----------------------------------------------------------------------
SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United
States Code, and section 8 of the Fair Sentencing Act of 2010, Public
Law 111-220, the Commission is considering promulgating a temporary,
emergency amendment to the sentencing guidelines, policy statements,
and commentary to decrease penalties for offenses involving cocaine
base (``crack'' cocaine) and to account for certain aggravating and
mitigating circumstances in drug trafficking cases. This notice sets
forth the proposed amendment and, for each part of the proposed
amendment, a synopsis of the issues addressed by that part. This notice
also provides multiple issues for comment, some of which are contained
within the proposed amendment.
The specific proposed amendment (and issues for comment) in this
notice is as follows: A proposed temporary, emergency amendment and
issues for comment regarding offenses involving crack cocaine
(particularly offenses covered by Sec. Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); (Attempt or
Conspiracy) and 2D2.1 (Unlawful Possession; Attempt or Conspiracy)) and
to account for certain aggravating and mitigating circumstances in drug
trafficking cases (particularly cases under Sec. 2D1.1) to implement
section 8 of the Fair Sentencing Act of 2010, Public Law 111-220.
DATES: Written public comment on the proposed emergency amendment
should be received by the Commission not later than October 8, 2010, in
anticipation of a vote to promulgate the emergency amendment by
November 1, 2010.
ADDRESSES: Public comment should be sent to: United States Sentencing
Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC
20002-8002, Attention: Public Affairs.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs
Officer, Telephone: (202) 502-4597.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day of May of each
year pursuant to 28 U.S.C. 994(p).
The Commission seeks comment on the proposed amendment and issues
for comment.
The parts of the proposed amendment in this notice are presented in
one of two formats. First, some parts of the proposed amendment are
proposed as specific revisions to a guideline or commentary. Bracketed
text within a part of the proposed amendment indicates a heightened
interest on the Commission=s part on comment and suggestions regarding
alternative policy choices; for example, a proposed enhancement of
[2][4][6] levels indicates that the Commission is considering, and
invites comment on, alternative policy choices regarding the
appropriate level of enhancement. Similarly, bracketed text within a
specific offense characteristic or application note means that the
Commission specifically invites comment on whether the proposed
provision is appropriate. Second, the Commission has highlighted
certain issues for comment and invites suggestions on how the
Commission should respond to those issues.
Additional information pertaining to the proposed amendment
described in this notice may be accessed through the Commission's Web
site at https://www.ussc.gov.
Authority: 28 U.S.C. 994(a), (o), (p), (x); section 8 of the
Fair Sentencing Act of 2010,
[[Page 54701]]
Pub. L. 111-220; USSC Rules of Practice and Procedure, Rules 4.4,
4.5.
William K. Sessions, III,
Chair.
1. Proposed Emergency Amendment: Fair Sentencing Act of 2010
Synopsis of Proposed Amendment: The Fair Sentencing Act of 2010,
Public Law 111-220 (the ``Act''), was signed into law on August 3,
2010. The Act reduces statutory penalties for cocaine base (crack
cocaine) offenses and eliminates the mandatory minimum sentence for
simple possession of crack cocaine. The Act also contains directives to
the Commission to review and amend the sentencing guidelines to account
for certain aggravating and mitigating circumstances in drug
trafficking cases.
Section 8 of the Act invokes the Commission's emergency, temporary
amendment authority under section 21(a) of the Sentencing Act of 1987
(28 U.S.C. 994 note) and directs the Commission to promulgate within 90
days--i.e., not later than November 1, 2010--the amendments to the
Guidelines Manual provided for by the Act. It provides in full as
follows:
Sec. 8. Emergency Authority for United States Sentencing Commission
The United States Sentencing Commission shall--
(1) Promulgate the guidelines, policy statements, or amendments
provided for in this Act as soon as practicable, and in any event not
later than 90 days after the date of enactment of this Act, in
accordance with the procedure set forth in section 21(a) of the
Sentencing Act of 1987 (28 U.S.C. 994 note), as though the authority
under that Act had not expired; and
(2) Pursuant to the emergency authority provided under paragraph
(1), make such conforming amendments to the Federal sentencing
guidelines as the Commission determines necessary to achieve
consistency with other guideline provisions and applicable law.
Section 21(a) of the Sentencing Act of 1987 provides in full as
follows:
Sec. 21. Emergency Guidelines Promulgation Authority
(a) In General.--In the case of--
(1) An invalidated sentencing guideline;
(2) The creation of a new offense or amendment of an existing
offense; or
(3) Any other reason relating to the application of a previously
established sentencing guideline, and determined by the United States
Sentencing Commission to be urgent and compelling;
the Commission, by affirmative vote of at least four members of the
Commission, and pursuant to its rules and regulations and consistent
with all pertinent provisions of title 28 and title 18, United States
Code, shall promulgate and distribute to all courts of the United
States and to the United States Probation System a temporary guideline
or amendment to an existing guideline, to remain in effect until and
during the pendency of the next report to Congress under section 994(p)
of title 28, United States Code.
Any temporary amendment promulgated by the Commission under the
section 21(a) authority will expire not later than November 1, 2011.
See section 21(a); 28 U.S.C. 994(p). The Commission will continue work
on the issues raised by the Act during the regular amendment cycle
ending May 1, 2011, with a view to re-promulgating any temporary
amendment as a permanent amendment (in its original form, or with
revisions) under 28 U.S.C. 994(p).
The proposed amendment and issues for comment address the issues
arising under the Act in the following manner:
(A) Changes to Statutory Terms of Imprisonment for Crack Cocaine
Issue for Comment:
1. Federal drug laws establish three tiers of penalties for
manufacturing and trafficking in cocaine, each based on the amount of
cocaine involved. See 21 U.S.C. 841(b)(1)(A), (B), (C), 960(b)(1), (2),
(3). For smaller quantities, the maximum term of imprisonment is 20
years, and there is no mandatory minimum term of imprisonment. If the
amount of cocaine involved reaches a specified quantity, however, the
maximum term increases to 40 years, and a mandatory minimum term of 5
years applies. If the amount of cocaine reaches ten times that
specified quantity, the maximum term is life, and a mandatory minimum
term of 10 years applies.
Section 2 of the Act amended these laws to raise the specified
quantities of crack cocaine associated with these two higher tiers of
penalties. Before the Act, the 5-year mandatory minimum applied to
offenses involving 5 grams (or more) of crack cocaine, and the 10-year
mandatory minimum applied to offenses involving 50 grams (or more) of
crack cocaine. Section 2 of the Act raised these quantities to 28 grams
and 280 grams, respectively.
The Commission requests comment on what temporary amendments to the
Guidelines Manual it should promulgate in response to the statutory
changes made by section 2 of the Act. In particular, the Commission
requests comment on what amendments should be made to the Drug Quantity
Table in Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy). When Congress has provided statutory
mandatory minimum sentences based on drug quantity, the Commission has
generally responded by incorporating the statutory mandatory minimum
sentences into the Drug Quantity Table and extrapolating upward and
downward to set guideline sentencing ranges for all drug quantities.
The drug quantity thresholds in the Drug Quantity Table have generally
been set so as to provide base offense levels corresponding to
guideline ranges that are above the statutory mandatory minimum
penalties.
Until 2007, the drug quantity thresholds for crack cocaine followed
the same principle. Accordingly, offenses involving 5 grams or more of
crack cocaine were assigned a base offense level (level 26)
corresponding to a sentencing guideline range of 63 to 78 months for a
defendant in Criminal History Category I (a guideline range that
exceeds the 5-year statutory minimum for such offenses by at least
three months). Similarly, offenses involving 50 grams or more of crack
cocaine were assigned a base offense level (level 32) corresponding to
a sentencing guideline range of 121 to 151 months for a defendant in
Criminal History Category I (a guideline range that exceeds the 10-year
statutory minimum for such offenses by at least 1 month). In Amendment
706, the Commission amended the Drug Quantity Table for crack cocaine,
reducing the base offense levels for these quantities to level 24 and
level 30, respectively, and extrapolating upward and downward for other
crack cocaine quantities. See USSG App. C, Amendment 706 (effective
November 1, 2007). Base offense levels 24 and 30 each correspond to a
guideline range for a defendant in Criminal History Category I that
includes the statutory mandatory minimum penalty.
For base offense level 24, the guideline range is 51-63 months; for
base offense level 30, the guideline range is 97-121 months. The
Commission also amended the commentary to Sec. 2D1.1 to revise the
manner in which combined offense levels are determined in cases
involving both crack cocaine and one or more other controlled
substances. See USSG
[[Page 54702]]
App. C, Amendment 715 (effective May 1, 2008).
Given the statutory changes made by section 2 of the Act, how
should the Commission revise the Drug Quantity Table for offenses
involving crack cocaine?
In particular, should the base offense levels for crack cocaine
again be set so that the statutory minimum penalties correspond to
levels 26 and 32, using the new drug quantities established by the Act
(the ``level 26 option'')? Or should the base offense levels for crack
cocaine continue to be set so that the statutory minimum penalties
correspond to levels 24 and 30, using the new drug quantities
established by the Act (the ``level 24 option'')? A comparison of the
base offense levels (``BOL'') and quantities for these options is as
follows:
------------------------------------------------------------------------
Quantity under level Quantity under level
BOL 26 option 24 option
------------------------------------------------------------------------
38.......................... 8.4 KG or more...... 25.2 KG or more.
36.......................... At least 2.8 KG but At least 8.4 KG but
less than 8.4 KG. less than 25.2 KG.
34.......................... At least 840 G but At least 2.8 KG but
less than 2.8 KG. less than 8.4 KG.
32.......................... At least 280 G but At least 840 G but
less than 840 G. less than 2.8 KG.
30.......................... At least 196 G but At least 280 G but
less than 280 G. less than 840 G.
28.......................... At least 112 G but At least 196 G but
less than 196 G. less than 280 G.
26.......................... At least 28 G but At least 112 G but
less than 112 G. less than 196 G.
24.......................... At least 22.4 G but At least 28 G but
less than 28 G. less than 112 G.
22.......................... At least 16.8 G but At least 22.4 G but
less than 22.4 G. less than 28 G.
20.......................... At least 11.2 G but At least 16.8 G but
less than 16.8 G. less than 22.4 G.
18.......................... At least 5.6 G but At least 11.2 G but
less than 11.2 G. less than 16.8 G.
16.......................... At least 2.8 G but At least 5.6 G but
less than 5.6 G. less than 11.2 G.
14.......................... At least 1.4 G but At least 2.8 G but
less than 2.8 G. less than 5.6 G.
12.......................... Less than 1.4 G..... Less than 2.8 G.
------------------------------------------------------------------------
Whichever option is adopted, conforming changes to the commentary
to Sec. 2D1.1 will need to be made to revise the manner in which
combined offense levels are determined in cases involving crack cocaine
and one or more other controlled substances. Under either option, 1
gram of crack cocaine would be equivalent to 3,571 grams of marijuana.
However, if the level 26 option is adopted, the combined offense level
in such a case would be determined under Application Note 10 in the
same manner as for any other case involving more than one controlled
substance, i.e., Application Note 10(D) would not apply. If the level
24 option is adopted, in contrast, Application Note 10(D) would
continue to apply, except that Application Note 10(D)(ii)(I) would be
amended to read ``the offense involved 25.2 kg or more, or less than
1.4 g, of cocaine base; or'', and the examples in Application Note
10(D)(iii) would be revised.
(B) Elimination of Mandatory Minimum for Simple Possession of Crack
Cocaine
Synopsis of Proposed Amendment: This part of the proposed amendment
responds to section 3 of the Act, which amended 21 U.S.C. 844(a) to
eliminate the 5-year mandatory minimum term of imprisonment (and 20-
year statutory maximum) for simple possession of more than 5 grams of
crack cocaine (or, for certain repeat offenders, more than 1 gram of
crack cocaine). Accordingly, the statutory penalty for simple
possession of crack cocaine is now the same as for simple possession of
most other controlled substances: for a first offender, a maximum term
of imprisonment of one year; for repeat offenders, maximum terms of 2
years or 3 years, and minimum terms of 15 days or 90 days, depending on
the prior convictions. See 21 U.S.C. 844(a).
Offenses under section 844(a) are referenced in Appendix A
(Statutory Index) to Sec. 2D2.1 (Unlawful Possession; Attempt or
Conspiracy). Section 2D2.1 contains a cross reference at subsection
(b)(1) that was established by the Commission in 1989 to address the
statutory minimum in section 844(a). See USSG App. C, Amendment 304
(effective November 1, 1989). Under the cross reference, an offender
who possessed more than 5 grams of crack cocaine is sentenced under the
drug trafficking guideline, Sec. 2D1.1.
To reflect the elimination of this statutory minimum, the proposed
amendment deletes as obsolete the cross reference at Sec. 2D2.1(b)(1).
Conforming changes to the commentary are also made.
Proposed Amendment:
Section 2D2.1(b) is amended by striking ``References'' and
inserting ``Reference''; by striking subdivision (1); and by
redesignating subdivision (2) as subdivision (1).
The Commentary to Sec. 2D2.1 captioned ``Background'' is amended
by striking ``five'' and inserting ``three''; and by striking the last
paragraph.
(C) Enhancements and Adjustments
Synopsis of Proposed Amendment: This part of the proposed amendment
responds to sections 5, 6, and 7 of the Act, which contain directives
to the Commission to provide certain enhancements and adjustments for
drug trafficking offenses.
Violence Enhancement
First, this part of the proposed amendment responds to section 5 of
the Act, which directs the Commission to ``review and amend the Federal
sentencing guidelines to ensure that the guidelines provide an
additional penalty increase of at least 2 offense levels if the
defendant used violence, made a credible threat to use violence, or
directed the use of violence during a drug trafficking offense.''
This part of the proposed amendment implements this directive by
amending Sec. 2D1.1 to provide a new specific offense characteristic
at subsection (b)(2) that provides an enhancement of [2][4][6] levels
if violence as described in the directive was involved. A conforming
amendment to Application Note 3 is also made.
Bribery Enhancement
Second, this part of the proposed amendment responds to section
6(1) of the Act, which directs the Commission to ``review and amend the
Federal sentencing guidelines to ensure an additional increase of at
least 2 offense levels if * * * the defendant bribed, or attempted to
bribe, a Federal, State, or local law enforcement official in
connection with a drug trafficking offense.''
This part of the proposed amendment implements this directive by
amending Sec. 2D1.1 to establish a new specific offense characteristic
at subsection (b)(11) that provides an enhancement of [2][4] levels if
the defendant [was
[[Page 54703]]
convicted of bribing or attempting to bribe][bribed or attempted to
bribe] a law enforcement officer to facilitate the commission of the
offense.
Drug Establishment Enhancement
Third, this part of the proposed amendment responds to section 6(2)
of the Act, which directs the Commission to ``review and amend the
Federal sentencing guidelines to ensure an additional increase of at
least 2 offense levels if * * * the defendant maintained an
establishment for the manufacture or distribution of a controlled
substance, as generally described in section 416 of the Controlled
Substances Act (21 U.S.C. 856).''
This part of the proposed amendment implements this directive by
amending Sec. 2D1.1 to establish a new specific offense characteristic
at subsection (b)(12) that provides an enhancement of [2][4] levels if
the defendant maintained an establishment for the manufacture or
distribution of a controlled substance, as described in 21 U.S.C. 856.
Enhancement Based on ``Super-Aggravating'' Factors
Fourth, this part of the proposed amendment responds to section
6(3) of the Act, which directs the Commission to ``review and amend the
Federal sentencing guidelines to ensure an additional increase of at
least 2 offense levels if * * * (A) the defendant is an organizer,
leader, manager, or supervisor of drug trafficking activity subject to
an aggravating role enhancement under the guidelines; and (B) the
offense involved 1 or more of the following super-aggravating
factors:''
(i) The defendant--
(I) Used another person to purchase, sell, transport, or store
controlled substances;
(II) Used impulse, fear, friendship, affection, or some combination
thereof to involve such person in the offense; and
(III) Such person had a minimum knowledge of the illegal enterprise
and was to receive little or no compensation from the illegal
transaction.
(ii) The defendant--
(I) Knowingly distributed a controlled substance to a person under
the age of 18 years, a person over the age of 64 years, or a pregnant
individual;
(II) Knowingly involved a person under the age of 18 years, a
person over the age of 64 years, or a pregnant individual in drug
trafficking;
(III) Knowingly distributed a controlled substance to an individual
who was unusually vulnerable due to physical or mental condition, or
who was particularly susceptible to criminal conduct; or
(IV) Knowingly involved an individual who was unusually vulnerable
due to physical or mental condition, or who was particularly
susceptible to criminal conduct, in the offense.
(iii) The defendant was involved in the importation into the United
States of a controlled substance.
(iv) The defendant engaged in witness intimidation, tampered with
or destroyed evidence, or otherwise obstructed justice in connection
with the investigation or prosecution of the offense.
(v) The defendant committed the drug trafficking offense as part of
a pattern of criminal conduct engaged in as a livelihood.
This part of the proposed amendment implements this directive by
creating a new enhancement of [2][4] levels in subsection (b)(14) of
Sec. 2D1.1 if the defendant receives an adjustment under Sec. 3B1.1
and the offense involved one or more of the factors described in the
directive.
Downward Adjustment Based on Certain Mitigating Factors
Fifth, this part of the proposed amendment responds to section 7(2)
of the Act, which directs the Commission to ``review and amend the
Federal sentencing guidelines and policy statements to ensure that * *
* there is an additional reduction of 2 offense levels if the
defendant--''
(A) Otherwise qualifies for a minimal role adjustment under the
guidelines and had a minimum knowledge of the illegal enterprise;
(B) Was to receive no monetary compensation from the illegal
transaction; and
(C) Was motivated by an intimate or familial relationship or by
threats or fear when the defendant was otherwise unlikely to commit
such an offense.
This part of the proposed amendment implements this directive by
creating a new downward adjustment of 2 levels in subsection (b)(15) of
Sec. 2D1.1 if the defendant receives an adjustment under Sec.
3B1.2(a) and the other factors described in the directive apply.
Technical and Conforming Changes
Finally, to reflect the renumbering of specific offense
characteristics in Sec. 2D1.1(b) by this part of the proposed
amendment, this part of the proposed amendment makes technical and
conforming changes to the commentary to Sec. 2D1.1 and to Sec. 2D1.14
(Narco-Terrorism).
Issues for comment are also included.
Proposed Amendment:
Section 2D1.1(b) is amended by redesignating subdivisions (10) and
(11) as subdivisions (13) and (16); by redesignating subdivisions (2)
through (9) as subdivisions (3) through (10); by inserting after
subdivision (1) the following:
``(2) If the defendant used violence, made a credible threat to use
violence, or directed the use of violence, increase by [2][4][6]
levels.'';
by inserting after subdivision (10), as redesignated by this amendment,
the following:
``(11) If the defendant [was convicted of bribing or attempting to
bribe][bribed or attempted to bribe] a law enforcement officer to
facilitate the commission of the offense, increase by [2][4] levels.
(12) If the defendant maintained an establishment for the
manufacture or distribution of a controlled substance, as described in
21 U.S.C. Sec. 856, increase by [2][4] levels.'';
by inserting after subdivision (13), as redesignated by this amendment,
the following:
``(14) If the defendant receives an adjustment under Sec. 3B1.1
(Aggravating Role) and the offense involved 1 or more of the following
factors:
(A) (i) The defendant used impulse, fear, friendship, affection, or
some combination thereof to involve another individual in the purchase,
sale, transport, or storage of controlled substances; and (ii) the
individual (I) was to receive little or no compensation from that
purchase, sale, transport, or storage of controlled substances and (II)
had minimal knowledge of [the scope and structure of] the enterprise;
(B) the defendant knowingly (i) distributed a controlled substance
to an individual under the age of 18 years, an individual over the age
of 64 years, a pregnant individual, an individual who was unusually
vulnerable due to physical or mental condition, or an individual who
was particularly susceptible to criminal conduct, or (ii) involved such
an individual in the offense;
(C) the defendant was involved in the importation of a controlled
substance;
(D) the defendant engaged in witness intimidation, tampered with or
destroyed evidence, or otherwise obstructed justice;
(E) the defendant committed the offense as part of a pattern of
criminal conduct engaged in as a livelihood;
increase by [2][4] levels.
(15) If the defendant receives an adjustment under subsection (a)
of Sec. 3B1.2 (Mitigating Role) and the offense involved all of the
following factors:
[[Page 54704]]
(A) The defendant was motivated by an intimate or familial
relationship or by threats or fear to commit the offense and was
otherwise unlikely to commit such an offense;
(B) the defendant was to receive no monetary compensation from the
offense; and
(C) the defendant had minimal knowledge of [the scope and structure
of] the enterprise,
decrease by 2 levels.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 3 by inserting ``in subsection (b)(1)'' after ``weapon
possession''; by striking ``The adjustment'' and inserting ``Subsection
(b)(1)''; by striking ``the enhancement'' and inserting ``subsection
(b)(1)''; and by striking the last sentence and inserting the
following:
``Although the enhancements for weapon possession in subsection
(b)(1) and violence in subsection (b)(2) may be triggered by the same
conduct (such as where the defendant uses the possessed weapon to make
a credible threat to use violence), they are to be applied cumulatively
(added together), as is generally the case when two or more specific
offense characteristics each apply. See Sec. 1B1.1 (Application
Instructions), Application Note 4(A).''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 8 in the last paragraph by striking ``(2)'' and
inserting ``(3)'';
in Note 18 by striking ``(2)'' and inserting ``(3)'', and by striking
``(4)'' and inserting ``(5)'';
in Note 19 by striking ``(10)'' and inserting ``(13)'' in both places;
in Note 20 by striking ``(10)'' and inserting ``(13)'' in both places;
in Note 21 by striking ``(11)'' and inserting ``(16)'' each place it
appears;
in Note 23 by striking ``(6)'' and inserting ``(7)'' each place it
appears;
in Note 25 by striking ``(7)'' and inserting ``(8)'' in both places;
and in Note 26 by striking ``(8)'' and inserting ``(9)'' in both
places.
The Commentary to Sec. 2D1.1 captioned ``Background'' is amended
by inserting after the paragraph that begins ``For marihuana plants''
the following:
``Subsection (b)(2) implements the directive to the Commission in
section 5 of Public Law 111-220.'';
In the paragraph that begins ``Specific Offense Characteristic'' by
striking ``Specific Offense Characteristic (b)(2)'' and inserting
``Subsection (b)(3)'';
By inserting after the paragraph that begins ``The dosage weight''
the following:
``Subsection (b)(11) implements the directive to the Commission in
section 6(1) of Public Law 111-220.
Subsection (b)(12) implements the directive to the Commission in
section 6(2) of Public Law 111-220.'';
In the paragraph that begins ``Subsection (b)(10)(A)'' by striking
``(10)'' and inserting ``(13)'';
In the paragraph that begins ``Subsections (b)(10)(C)(ii)'' by
striking ``(10)'' and inserting ``(13)'';
and by adding at the end the following:
``Subsection (b)(14) implements the directive to the Commission in
section 6(1) of Public Law 111-220.
Subsection (b)(15) implements the directive to the Commission in
section 7(2) of Public Law 111-220.''
Section 2D1.14(a)(1) is amended by striking ``(11)'' and inserting
``(16)''.
Issues for Comment:
1. In the proposed new violence enhancement in subsection (b)(2) of
Sec. 2D1.1, should the Commission provide a single level of
enhancement for any conduct covered by the violence enhancement, or
should the Commission distinguish among the different categories of
conduct (use of violence; credible threat to use violence; directing
others to use violence) by assigning different levels of enhancement to
each?
2. The proposed amendment would amend Application Note 3 to Sec.
2D1.1 to provide that the enhancements for weapon possession in
subsection (b)(1) and violence in subsection (b)(2) are to be applied
cumulatively. Should the Commission instead provide that the
enhancements are not to be applied cumulatively?
3. The Guidelines Manual uses the term ``violence'' in several
provisions, e.g., Sec. 5C1.2 (Limitation on Applicability of Statutory
Minimum Sentences in Certain Cases) (the ``safety valve'' provision),
without defining the term. Should the term ``violence'' be defined for
purposes of the new violence enhancement in subsection (b)(2)? If so,
what should the definition be? How, if at all, should such a definition
interact with the other provisions in the Manual where the term is not
defined?
4. The proposed new bribery enhancement in Sec. 2D1.1(b)(11) may
interact with other provisions in the Guidelines Manual, such as Sec.
3C1.1 (Obstructing or Impeding the Administration of Justice). How
should the new bribery enhancement interact with such other provisions?
In particular, should they be applied cumulatively, or should they not
be applied cumulatively?
5. The proposed new enhancement in Sec. 2D1.1(b)(12) would apply
if the defendant ``maintained an establishment for the manufacture or
distribution of a controlled substance, as described in 21 U.S.C.
856.'' Should this enhancement apply more broadly, e.g., if the
defendant ``committed an offense described in 21 U.S.C. 856''? How
should this proposed new enhancement in subsection (b)(12) interact
with Sec. 2D1.8 (Renting or Managing a Drug Establishment; Attempt or
Conspiracy)? In particular, should the Commission raise the alternative
base offense level 26 in Sec. 2D1.8 to [28][30]?
6. As an alternative to establishing new specific offense
characteristics at subsections (b)(14) and (15) of Sec. 2D1.1, should
the Commission instead implement these directives in Chapter Three? In
particular, should the Commission amend Sec. Sec. 3B1.1 and 3B1.2, or
establish new Chapter Three guidelines, to provide the adjustments
required by the directives?
7. For the proposed new specific offense characteristic in Sec.
2D1.1(b)(14), should the Commission distinguish among the different
factors described by the directive (e.g., the factors set forth in
subparagraphs (A) through (E) of the proposed new Sec. 2D1.1(b)(14))
by assigning different levels to each? For example, should the most
egregious factor be assigned an adjustment of [6] levels, and other
factors assigned adjustments of [4] or [2] levels? If more than one
factor is present, should that have a cumulative effect, warranting a
higher total adjustment for that defendant? As an alternative, should
the Commission provide an upward departure provision for cases in which
more than one factor is present?
8. The proposed new specific offense characteristic in Sec.
2D1.1(b)(14) may interact with other provisions in the Guidelines
Manual, such as Sec. 2D1.2 (Drug Offenses Occurring Near Protected
Locations or Involving Underage or Pregnant Individuals; Attempt or
Conspiracy), Sec. 3B1.4 (Using a Minor to Commit a Crime), Sec. 3C1.1
(Obstructing or Impeding the Administration of Justice), and Sec.
4B1.3 (Criminal Livelihood). How should the new specific offense
characteristic in subsection (b)(14) interact with such other
provisions? In particular, should they be applied cumulatively, or
should they not be applied cumulatively?
9. The proposed new specific offense characteristic in Sec.
2D1.1(b)(14) and the proposed new specific offense characteristics in
Sec. 2D1.1 for bribery (see Part C of this proposed amendment) and
maintenance of a drug establishment (see Part D of this proposed
amendment) all respond to section 6 of the Fair Sentencing Act of 2010.
How should these provisions interact with each
[[Page 54705]]
other? In particular, should they be applied cumulatively, or should
they not be applied cumulatively?
10. This part of the proposed amendment establishes several new
specific offense characteristics in Sec. 2D1.1. What, if any, changes
should the Commission make to other Chapter Two offense guidelines
involving drug trafficking to ensure consistency and proportionality?
Many such guidelines refer to Sec. 2D1.1 in determining the offense
level, but not in all cases. For example, if the base offense level is
determined under subsection (a)(3) or (a)(4) of Sec. 2D1.2 (Drug
Offenses Occurring Near Protected Locations or Involving Underage or
Pregnant Individuals; Attempt or Conspiracy), or under subsection
(a)(2) of Sec. 2D1.5 (Continuing Criminal Enterprise; Attempt or
Conspiracy), or under Sec. 2D1.11 (Unlawfully Distributing, Importing,
Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), the
new specific offense characteristics would not apply. Should the
Commission establish similar specific offense characteristics in Sec.
2D1.2, Sec. 2D1.5, and Sec. 2D1.11?
11. What other changes, if any, should the Commission make to the
Guidelines Manual under the emergency authority provided by section 8
of the Act?
(D) Maximum Base Offense Level for Minimal Role (``Minimal Role
Cap'')
Synopsis of Proposed Amendment: This part of the proposed amendment
responds to section 7(1) of the Act, which contains a directive to the
Commission to ``review and amend the Federal sentencing guidelines and
policy statements to ensure that * * * if the defendant is subject to a
minimal role adjustment under the guidelines, the base offense level
for the defendant based solely on drug quantity shall not exceed level
32.''
This part of the proposed amendment implements the directive by
adding a new sentence to the end of Sec. 2D1.1(a)(5) (the so-called
``mitigating role cap''), to reflect the ``minimal role cap'' of level
32 required by the directive.
Proposed Amendment:
Section 2D1.1(a)(5) is amended by adding at the end the following:
``If the resulting offense level is greater than level 32 and the
defendant receives an adjustment under subsection (a) of Sec. 3B1.2,
decrease to level 32.''.
[FR Doc. 2010-22337 Filed 9-7-10; 8:45 am]
BILLING CODE 2210-40-P
