Sentencing Guidelines for United States Courts, 66188-66193 [2010-27147]

Download as PDF srobinson on DSKHWCL6B1PROD with NOTICES 66188 Federal Register / Vol. 75, No. 207 / Wednesday, October 27, 2010 / Notices any common law cause of action regarding common carrier duties.7 Thus, for exempted movements, rail customers could pursue legal remedies under the Interstate Commerce Act only if they successfully petitioned the agency to revoke the exemption under 49 U.S.C. 10502(d). As long as 30 years have passed since the adoption of many of these exemptions. In recent years, the Board has received informal inquiries questioning the relevance and/or necessity of some of the existing commodity exemptions, given the changes in the competitive landscape and the railroad industry that have occurred over the past few decades. The Board will, therefore, hold a hearing to explore the continuing utility of and the issues surrounding the categorical exemptions under § 10502, specifically the various commodity exemptions under 49 CFR 1039.10 and 1039.11, the boxcar exemptions under 49 CFR 1039.14, and TOFC/COFC exemptions under 49 CFR part 1090. The Board seeks comments as to the effectiveness of these exemptions in the marketplace; whether the rationale behind any of these exemptions should be revisited; and whether the exemptions should be subject to periodic review. Date of Hearing: The hearing will begin at 9:30 a.m. on December 9, 2010, in the 1st floor hearing room at the Board’s headquarters at 395 E Street, SW., in Washington, DC and will continue, with short breaks if necessary, until every person scheduled to speak has been heard. Notice of Intent to Participate and Testimony: Any person wishing to speak at the hearing should file with the Board a combined notice of intent to participate (identifying the party, the proposed speaker, the time requested, and the topic(s) to be covered) and the person’s written testimony, by November 30, 2010. Also, any interested person who wishes to submit a written statement without appearing at the December 9, 2010 hearing should also file that statement by November 30, 2010. Board Releases and Live Video Streaming Available Via the Internet: Decisions and notices of the Board, including this notice, are available on the Board’s Web site at ‘‘http:// www.stb.dot.gov.’’ This hearing will be available on the Board’s Web site by live video streaming. To access the hearing, click on the ‘‘Live Video’’ link under ‘‘Information Center’’ at the left side of 7 See Consol. Rail Corp.—Declaratory Order— Exemption, 1 I.C.C. 2d 895, 898 (1986). VerDate Mar<15>2010 18:16 Oct 26, 2010 Jkt 223001 the home page beginning at 9 a.m. on December 9, 2010. This action will not significantly affect either the quality of the human environment or the conservation of energy resources. Decided: October 21, 2010. By the Board, Rachel D. Campbell, Director, Office of Proceedings. Jeffrey Herzig, Clearance Clerk. [FR Doc. 2010–27104 Filed 10–26–10; 8:45 am] BILLING CODE 4915–01–P DEPARTMENT OF THE TREASURY Internal Revenue Service Advisory Council to the Internal Revenue Service; Meeting Internal Revenue Service (IRS), Treasury. ACTION: Notice. AGENCY: The Internal Revenue Service Advisory Council (IRSAC) will hold a public meeting on Wednesday, November 17, 2010. FOR FURTHER INFORMATION CONTACT: Ms. Anna Millikan, Program Analyst, National Public Liaison, CL:NPL, 7559, 1111 Constitution Avenue, NW., Washington, D.C. 20224. Telephone: 202–622–6433 (not a toll-free number). E-mail address: *public_liaison@irs.gov. SUPPLEMENTARY INFORMATION: Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988), a public meeting of the IRSAC will be held on Wednesday, November 17, 2010, from 9 a.m. to 1 p.m. at the Madison, Loews Hotel, 1177 15th Street, NW., Montpelier Room, Washington, DC 20005. Issues to be discussed include, but not limited to: The Issue Management Process, The New Proposed Form Regarding Uncertain Tax Positions, Automated Under Reporting (AUR) Soft Notice CP2057, Repayment of First Time Homebuyer Credit, The Filing Requirements for the Report of Foreign Bank and Financial Accounts (‘‘FBAR’’) are Confusing and Extremely Overbroad, Collection Standard Should Be Revised To Enhance Collection and to Reduce Installment Payment Default Rates, Circular 230 Enrollment of Former Internal Revenue Service Employees, Recommendations Regarding Continuing Education Program and Sponsor Requirements Under Proposed Changes to Circular 230. Reports from the four IRSAC subgroups, Large Business and International, Small SUMMARY: PO 00000 Frm 00129 Fmt 4703 Sfmt 4703 Business/Self-Employed, Wage & Investment, and Office of Professional Responsibility will also be presented and discussed. Last minute agenda changes may preclude advanced notice. The meeting room accommodates approximately 80 people, IRSAC members and Internal Revenue Service officials inclusive. Due to limited seating, please call Anna Millikan to confirm your attendance. Ms. Millikan can be reached at 202–622–6433. Attendees are encouraged to arrive at least 30 minutes before the meeting begins. Should you wish the IRSAC to consider a written statement, please either call 202–622–6433, write to Internal Revenue Service, Office of National Public Liaison, CL:NPL:7559, 1111 Constitution Avenue, NW., Washington, DC 20224, or e-mail *public_liaison@irs.gov. Dated: October 21, 2010. Candice Cromling, Director, National Public Liaison. [FR Doc. 2010–27116 Filed 10–26–10; 8:45 am] BILLING CODE 4830–01–P UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts United States Sentencing Commission. ACTION: Notice of a temporary, emergency amendment to sentencing guidelines and commentary. AGENCY: Pursuant to section 8 of the Fair Sentencing Act of 2010, Public Law 111–220, the Commission hereby gives notice of a temporary, emergency amendment to the sentencing guidelines and commentary. This notice sets forth the temporary, emergency amendment and the reason for amendment. The specific amendment in this notice is as follows: An amendment 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: The Commission has specified an effective date of November 1, 2010, for the emergency amendment. SUMMARY: E:\FR\FM\27OCN1.SGM 27OCN1 Federal Register / Vol. 75, No. 207 / Wednesday, October 27, 2010 / Notices FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, Telephone: (202) 502–4597. SUPPLEMENTARY INFORMATION: The Commission must promulgate a temporary, emergency amendment to implement the directive in section 8 the Fair Sentencing Act of 2010, Public Law 111–220, by November 1, 2010. On September 8, 2010, the Commission published in the Federal Register a proposed amendment and issues for comment regarding the implementation of this directive. See 75 FR 54700 (September 8, 2010). The temporary, emergency amendment set forth in this notice also may be accessed through the Commission’s Web site at http:// www.ussc.gov. Authority: 28 U.S.C. 994(a), (o), (p), (x); section 8 of the Fair Sentencing Act of 2010, Pub. L. 111–220. srobinson on DSKHWCL6B1PROD with NOTICES William K. Sessions III, Chair. Fair Sentencing Act of 2010 1. 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 the 4-level (‘minimal participant’) reduction in § 3B1.2(a), decrease to level 32.’’. 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 levels.’’; By inserting after subdivision (10), as redesignated by this amendment, the following: ‘‘(11) If the defendant bribed, or attempted to bribe, a law enforcement officer to facilitate the commission of the offense, increase by 2 levels. (12) If the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance, increase by 2 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 fear, impulse, friendship, affection, or some combination thereof to involve another VerDate Mar<15>2010 17:00 Oct 26, 2010 Jkt 223001 individual in the illegal purchase, sale, transport, or storage of controlled substances, (ii) the individual received little or no compensation from the illegal purchase, sale, transport, or storage of controlled substances, and (iii) the individual had minimal knowledge of the scope and structure of the enterprise; (B) The defendant, knowing that an individual was (i) less than 18 years of age, (ii) 65 or more years of age, (iii) pregnant, or (iv) unusually vulnerable due to physical or mental condition or otherwise particularly susceptible to the criminal conduct, distributed a controlled substance to that individual or involved that individual in the offense; (C) The defendant was directly involved in the importation of a controlled substance; (D) 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; (E) The defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood, Increase by 2 levels. (15) If the defendant receives the 4level (‘minimal participant’) reduction in § 3B1.2(a) and the offense involved all of the following factors: (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 received no monetary compensation from the illegal purchase, sale, transport, or storage of controlled substances; and (C) The defendant had minimal knowledge of the scope and structure of the enterprise, Decrease by 2 levels.’’. Section 2D1.1(c) is amended in subdivision (1) in the third entry by striking ‘‘4.5’’ and inserting ‘‘8.4’’; in subdivision (2) in the third entry by striking ‘‘1.5’’ and inserting ‘‘2.8’’; by striking ‘‘4.5’’ and inserting ‘‘8.4’’; in subdivision (3) in the third entry by striking ‘‘500’’ and inserting ‘‘840’’; by striking ‘‘1.5’’ and inserting ‘‘2.8’’; in subdivision (4) in the third entry by striking ‘‘150’’ and inserting ‘‘280’’; by striking ‘‘500’’ and inserting ‘‘840’’; in subdivision (5) in the third entry by striking ‘‘50’’ and inserting ‘‘196’’; by striking ‘‘150’’ and inserting ‘‘280’’; in subdivision (6) in the third entry by striking ‘‘35’’ and inserting ‘‘112’’; by striking ‘‘50’’ and inserting ‘‘196’’; in subdivision (7) in the third entry by striking ‘‘20’’ and inserting ‘‘28’’; by PO 00000 Frm 00130 Fmt 4703 Sfmt 4703 66189 striking ‘‘35’’ and inserting ‘‘112’’; in subdivision (8) in the third entry by striking ‘‘5’’ and inserting ‘‘22.4’’; by striking ‘‘20’’ and inserting ‘‘28’’; in subdivision (9) in the third entry by striking ‘‘4’’ and inserting ‘‘16.8’’; by striking ‘‘5’’ and inserting ‘‘22.4’’; in subdivision (10) in the third entry by striking ‘‘3’’ and inserting ‘‘11.2’’; by striking ‘‘4’’ and inserting ‘‘16.8’’; in subdivision (11) in the third entry by striking ‘‘2’’ and inserting ‘‘5.6’’; by striking ‘‘3’’ and inserting ‘‘11.2’’; in subdivision (12) in the third entry by striking ‘‘1’’ and inserting ‘‘2.8’’; by striking ‘‘2’’ and inserting ‘‘5.6’’; in subdivision (13) in the third entry by striking ‘‘500 MG’’ and inserting ‘‘1.4 G’’; by striking ‘‘1’’ and inserting ‘‘2.8’’; and in subdivision (14) in the third entry by striking ‘‘500 MG’’ and inserting ‘‘1.4 G’’. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 3 by inserting ‘‘Application of Subsections (b)(1) and (b)(2).— (A) Application of Subsection (b)(1).—’’ before ‘‘Definitions’’; By inserting ‘‘in subsection (b)(1)’’ after ‘‘weapon possession’’; by striking ‘‘adjustment’’ and inserting ‘‘enhancement’’; by striking ‘‘his’’ and inserting ‘‘the defendant’s’’; and by adding at the end the following: ‘‘(B) Interaction of Subsections (b)(1) and (b)(2).—The enhancements in subsections (b)(1) and (b)(2) may 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). However, in a case in which the defendant merely possessed a dangerous weapon but did not use violence, make a credible threat to use violence, or direct the use of violence, subsection (b)(2) would not apply.’’. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 8 in the last paragraph by striking ‘‘(2)’’ and inserting ‘‘(3)’’. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 10(B) in the first paragraph by striking ‘‘(Except Cocaine Base)’’ after ‘‘Differing Controlled Substances’’; and by striking the sentence beginning ‘‘To determine’’. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 10(C) by striking ‘‘(Except Cocaine Base)’’ after ‘‘Differing Controlled Substances’’; and in subdivision (C)(iii) by striking ‘‘five kilograms of marihuana’’ and inserting ‘‘2 grams of cocaine base’’; by inserting ‘‘, and the cocaine base is equivalent to 7.142 kilograms of marihuana’’ after ‘‘16 kilograms of marihuana’’; and by striking ‘‘21’’ and inserting ‘‘23.142’’. E:\FR\FM\27OCN1.SGM 27OCN1 srobinson on DSKHWCL6B1PROD with NOTICES 66190 Federal Register / Vol. 75, No. 207 / Wednesday, October 27, 2010 / Notices The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 10 by striking subdivision (D); and by redesignating subdivision (E) as subdivision (D). The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 10(D), as redesignated by this amendment, in the table captioned ‘‘Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*’’ in the line referenced to Cocaine Base by striking ‘‘20 kg’’ and inserting ‘‘3,571 gm’’. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended 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 ‘‘Application Notes’’ is amended by adding at the end the following: ‘‘27. Application of Subsection (b)(11).—Subsection (b)(11) does not apply if the purpose of the bribery was to obstruct or impede the investigation, prosecution, or sentencing of the defendant. Such conduct is covered by § 3C1.1 (Obstructing or Impeding the Administration of Justice) and, if applicable, § 2D1.1(b)(14)(D). 28. Application of Subsection (b)(12).—Subsection (b)(12) applies to a defendant who knowingly maintains a premises (i.e., a ‘building, room, or enclosure,’ see § 2D1.8, comment. (backg’d.)) for the purpose of manufacturing or distributing a controlled substance. Among the factors the court should consider in determining whether the defendant ‘maintained’ the premises are (A) whether the defendant held a possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access to, or activities at, the premises. Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises. In making this determination, the court should consider how frequently the premises was used by the defendant for VerDate Mar<15>2010 17:00 Oct 26, 2010 Jkt 223001 manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes. 29. Application of Subsection (b)(14).— (A) Distributing to a Specified Individual or Involving Such an Individual in the Offense (Subsection (b)(14)(B)).—If the defendant distributes a controlled substance to an individual or involves an individual in the offense, as specified in subsection (b)(14)(B), the individual is not a ‘vulnerable victim’ for purposes of § 3A1.1(b). (B) Directly Involved in the Importation of a Controlled Substance (Subsection (b)(14)(C)).—Subsection (b)(14)(C) applies if the defendant is accountable for the importation of a controlled substance under subsection (a)(1)(A) of § 1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)), i.e., the defendant committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused the importation of a controlled substance. If subsection (b)(3) or (b)(5) applies, do not apply subsection (b)(14)(C). (C) Pattern of Criminal Conduct Engaged in as a Livelihood (Subsection (b)(14)(E)).—For purposes of subsection (b)(14)(E), ‘pattern of criminal conduct’ and ‘engaged in as a livelihood’ have the meaning given such terms in § 4B1.3 (Criminal Livelihood).’’. The Commentary to § 2D1.1 captioned ‘‘Background’’ is amended by inserting after the paragraph that begins ‘‘For marihuana plants’’ the following: ‘‘The last sentence of subsection (a)(5) implements the directive to the Commission in section 7(1) of Public Law 111–220. 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: PO 00000 Frm 00131 Fmt 4703 Sfmt 4703 ‘‘Subsection (b)(14) implements the directive to the Commission in section 6(3) 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)’’. 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. Section 2K2.4 captioned ‘‘Application Notes’’ is amended in Note 4 by inserting after the first paragraph the following: ‘‘A sentence under this guideline also accounts for conduct that would subject the defendant to an enhancement under § 2D1.1(b)(2) (pertaining to use of violence, credible threat to use violence, or directing the use of violence). Do not apply that enhancement when determining the sentence for the underlying offense.’’. The Commentary to § 3B1.4 captioned ‘‘Application Notes’’ is amended in Note 2 by adding at the end as the last sentence the following: ‘‘For example, if the defendant receives an enhancement under § 2D1.1(b)(14)(B) for involving an individual less than 18 years of age in the offense, do not apply this adjustment.’’. The Commentary to § 3C1.1 captioned ‘‘Application Notes’’ is amended in Note 7 by adding at the end the following new paragraph: ‘‘Similarly, if the defendant receives an enhancement under § 2D1.1(b)(14)(D), do not apply this adjustment.’’. Reason for Amendment: This amendment implements the emergency directive in section 8 of the Fair Sentencing Act of 2010, Public Law 111–220 (the ‘‘Act’’). The Act reduced the statutory penalties for cocaine base (‘‘crack cocaine’’) offenses, eliminated the statutory mandatory minimum sentence for simple possession of crack cocaine, and contained directives requiring the Commission to review and amend the guidelines to account for specified aggravating and mitigating circumstances in certain drug cases. The emergency amendment authority provided in section 8 of the Act required the Commission to promulgate the guidelines, policy statements, or amendments provided for in the Act, and to make such conforming changes to the guidelines as the Commission determines necessary to achieve E:\FR\FM\27OCN1.SGM 27OCN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 207 / Wednesday, October 27, 2010 / Notices consistency with other guideline provisions and applicable law, not later than 90 days after the date of enactment of the Act. First, the amendment amends the Drug Quantity Table in § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to account for the changes in the statutory penalties made in section 2 of the Act. Section 2 of the Act reduced the statutory penalties for offenses involving manufacturing or trafficking in crack cocaine by increasing the quantity thresholds required to trigger a mandatory minimum term of imprisonment. The quantity threshold required to trigger the 5-year mandatory minimum term of imprisonment was increased from 5 grams to 28 grams, and the quantity threshold required to trigger the 10-year mandatory minimum term of imprisonment was increased from 50 grams to 280 grams. See 21 U.S.C. 841(b)(1)(A), (B), (C), 960(b)(1), (2), (3). To account for these statutory changes, the amendment conforms the guideline penalty structure for crack cocaine offenses to the approach followed for other drugs, i.e., the base offense levels for crack cocaine are set in the Drug Quantity Table so that the statutory minimum penalties correspond to levels 26 and 32. See generally § 2D1.1, comment. (backg’d.). Accordingly, using the new drug quantities established by the Act, offenses involving 28 grams or more of crack cocaine are assigned a base offense level of 26, offenses involving 280 grams or more of crack cocaine are assigned a base offense level of 32, and other offense levels are established by extrapolating upward and downward. Conforming to this approach ensures that the relationship between the statutory penalties for crack cocaine offenses and the statutory penalties for offenses involving other drugs is consistently and proportionally reflected throughout the Drug Quantity Table. To provide a means of obtaining a single offense level in cases involving crack cocaine and one or more other controlled substances, the amendment also establishes a marihuana equivalency for crack cocaine under which 1 gram of crack cocaine is equivalent to 3,571 grams of marihuana. (The marihuana equivalency for any controlled substance is a constant that can be calculated using any threshold in the Drug Quantity Table by dividing the amount of marihuana corresponding to that threshold by the amount of the VerDate Mar<15>2010 17:00 Oct 26, 2010 Jkt 223001 other controlled substance corresponding to that threshold. For example, the threshold quantities at base offense level 26 are 100,000 grams of marihuana and 28 grams of crack cocaine; 100,000 grams divided by 28 is 3,571 grams.) In the commentary to § 2D1.1, the amendment makes a conforming change to the rules for cases involving both crack cocaine and one or more other controlled substances. The amendment deletes the special rules in Note 10(D) for cases involving crack cocaine and one or more other controlled substances, and revises Note 10(C) so that it provides an example of such a case. Second, the amendment amends § 2D1.1 to add a sentence at the end of subsection (a)(5) (often referred to as the ‘‘mitigating role cap’’). The new provision provides that if the offense level otherwise resulting from subsection (a)(5) is greater than level 32, and the defendant receives the 4-level (‘‘minimal participant’’) reduction in subsection (a) of § 3B1.2 (Mitigating Role), the base offense level shall be decreased to level 32. This provision responds to section 7(1) of the Act, which directed the Commission 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.’’ Third, the amendment amends § 2D1.1 to create a new specific offense characteristic at subsection (b)(2) providing an enhancement of 2 levels if the defendant used violence, made a credible threat to use violence, or directed the use of violence. The new specific offense characteristic responds to section 5 of the Act, which directed the Commission 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.’’ The amendment also revises the commentary to § 2D1.1 to clarify how this new specific offense characteristic interacts with subsection (b)(1). Specifically, Application Note 3 is amended to provide that the enhancements in subsections (b)(1) (regarding possession of a dangerous weapon) and (b)(2) may be applied cumulatively. However, in a case in which the defendant merely possessed a dangerous weapon but did not use violence, make a credible threat to use violence, or direct the use of violence, subsection (b)(2) would not apply. In addition, the amendment makes a conforming change to the commentary PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 66191 to § 2K2.4 (Use of Firearm, ArmorPiercing Ammunition, or Explosive During or in Relation to Certain Crimes) to address cases in which the defendant is sentenced under both § 2D1.1 (for a drug trafficking offense) and § 2K2.4 (for an offense under 18 U.S.C. 924(c)). In such a case, the sentence under § 2K2.4 accounts for any weapon enhancement; therefore, in determining the sentence under § 2D1.1, the weapon enhancement in § 2D1.1(b)(1) does not apply. See § 2K2.4, comment. (n. 4). The amendment amends this commentary to similarly provide that, in a case in which the defendant is sentenced under both §§ 2D1.1 and 2K2.4, the new enhancement at § 2D1.1(b)(2) also is accounted for by § 2K2.4 and, therefore, does not apply. Fourth, the amendment amends § 2D1.1 to create a new specific offense characteristic at subsection (b)(11) providing an enhancement of 2 levels if the defendant bribed, or attempted to bribe, a law enforcement officer to facilitate the commission of the offense. The new specific offense characteristic responds to section 6(1) of the Act, which directed the Commission ‘‘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.’’ The amendment also revises the commentary to § 2D1.1 to clarify how this new specific offense characteristic interacts with the adjustment at § 3C1.1 (Obstructing or Impeding the Administration of Justice). Specifically, new Application Note 27 provides that subsection (b)(11) does not apply if the purpose of the bribery was to obstruct or impede the investigation, prosecution, or sentencing of the defendant because such conduct is covered by § 3C1.1. Fifth, the amendment amends § 2D1.1 to create a new specific offense characteristic at subsection (b)(12) providing an enhancement of 2 levels if the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance. The new specific offense characteristic responds to section 6(2) of the Act, which directed the Commission 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).’’ The amendment also adds commentary in § 2D1.1 at Application E:\FR\FM\27OCN1.SGM 27OCN1 srobinson on DSKHWCL6B1PROD with NOTICES 66192 Federal Register / Vol. 75, No. 207 / Wednesday, October 27, 2010 / Notices Note 28 providing that among the factors the court should consider in determining whether the defendant ‘‘maintained’’ the premises are (A) whether the defendant held a possessory interest (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access to, or activities at, the premises. Application Note 28 also provides that manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses of the premises. In making this determination, the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes. Sixth, the amendment amends § 2D1.1 to create a new specific offense characteristic at subsection (b)(14) that provides an enhancement of 2 levels if the defendant receives an adjustment under § 3B1.1 (Aggravating Role) and the offense involved one or more of five specified factors. The new specific offense characteristic responds to section 6(3) of the Act, which directed the Commission ‘‘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 VerDate Mar<15>2010 17:00 Oct 26, 2010 Jkt 223001 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.’’ The amendment also revises the commentary to § 2D1.1 to provide guidance in applying the new specific offense characteristic at § 2D1.1(b)(14). Specifically, new Application Note 29 provides that if the defendant distributes a controlled substance to an individual or involves an individual in the offense, as specified in subsection (b)(14)(B), the individual is not a ‘‘vulnerable victim’’ for purposes of subsection (b) of § 3A1.1 (Hate Crime Motivation or Vulnerable Victim). Application Note 29 also provides that subsection (b)(14)(C) applies if the defendant committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused the importation of a controlled substance. Subsection (b)(14)(C), however, does not apply if subsection (b)(3) or (b)(5) (as redesignated by the amendment) applies because the defendant’s involvement in importation is adequately accounted for by those subsections. In addition, Application Note 29 defines ‘‘pattern of criminal conduct’’ and ‘‘engaged in as a livelihood’’ for purposes of subsection (b)(14)(E) as those terms are defined in § 4B1.3 (Criminal Livelihood). The amendment also revises the commentary in § 3B1.4 (Using a Minor To Commit a Crime) and § 3C1.1 (Obstructing or Impeding the Administration of Justice) to specify how those adjustments interact with § 2D1.1(b)(14)(B) and (D), respectively. Specifically, Application Note 2 to § 3B1.4 is amended to clarify that the increase of two levels under this section would not apply if the defendant receives an enhancement under § 2D1.1(b)(14)(B). Similarly, Application Note 7 to § 3C1.1 is amended to clarify that the increase of two levels under this section would not apply if the defendant receives an enhancement under § 2D1.1(b)(14)(D). PO 00000 Frm 00133 Fmt 4703 Sfmt 4703 Seventh, the amendment amends § 2D1.1 to create a new specific offense characteristic providing a 2-level downward adjustment if the defendant receives the 4-level (‘‘minimal participant’’) reduction in subsection (a) of § 3B1.2 (Mitigating Role) and the offense involved each of three additional specified factors: Namely, the defendant was motivated by an intimate or familial relationship or by threats or fear to commit the offense when the defendant was otherwise unlikely to commit such an offense; was to receive no monetary compensation from the illegal purchase, sale, transport, or storage of controlled substances; and had minimal knowledge of the scope and structure of the enterprise. The specific offense characteristic responds to section 7(2) of the Act, which directed the Commission 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.’’ Eighth, to reflect the renumbering of specific offense characteristics in § 2D1.1(b) by the amendment, technical and conforming changes are made to the commentary to § 2D1.1 and to § 2D1.14 (Narco-Terrorism). Ninth, the amendment amends § 2D2.1 (Unlawful Possession; Attempt or Conspiracy) to account for the changes in the statutory penalties for simple possession of crack cocaine made in section 3 of the Act. Section 3 of the Act 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). To account for this statutory change, the amendment deletes the cross reference at § 2D2.1(b)(1) under which an offender who possessed more than 5 grams of E:\FR\FM\27OCN1.SGM 27OCN1 66193 Federal Register / Vol. 75, No. 207 / Wednesday, October 27, 2010 / Notices crack cocaine was sentenced under the drug trafficking guideline, § 2D1.1. [FR Doc. 2010–27147 Filed 10–26–10; 8:45 am] BILLING CODE 2210–40–P Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461–9854. Department of Veterans Affairs (VA). Notice. The purpose of this notice is to advise the public of the Post-9/11 GI Bill tuition and fee in-State maximum rates for the 2010–2011 academic year. The Post-9/11 GI Bill pays tuition and fees charged to eligible individuals up to the highest in-State undergraduate tuition and fees charged by a public institution of higher learning (IHL) in the State where the school is located. The amount of tuition and fees payable will vary based on the location of the IHL and the individual’s eligibility percentage (40%–100%). VA will use the maximum amounts listed below to determine the amounts payable for training pursued under the Post-9/11 GI Bill after July 31, 2010, and before August 1, 2011. FOR FURTHER INFORMATION CONTACT: Lakisha Rogers, Management and Program Analyst (225C), Education Service, Veterans Benefits srobinson on DSKHWCL6B1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 17:00 Oct 26, 2010 Jkt 223001 State [By State] Maximum tuition per credit State Post-9/11 GI Bill 2010–2011 Tuition and Fee In-State Maximums ACTION: [By State] HIGHEST IN-STATE MAXIMUM TUITION AND FEE RATES DEPARTMENT OF VETERANS AFFAIRS AGENCY: HIGHEST IN-STATE MAXIMUM TUITION AND FEE RATES—Continued Alabama ............ Alaska ............... Arizona .............. Arkansas ........... California ........... Colorado ........... Connecticut ....... Delaware ........... District of Columbia ............ Florida ............... Guam ................ Georgia ............. Hawaii ............... Idaho ................. Illinois ................ Indiana .............. Iowa .................. Kansas .............. Kentucky ........... Louisiana .......... Maine ................ Maryland ........... Massachusetts .. Michigan ........... Minnesota ......... Mississippi ........ Missouri ............ Montana ............ Nebraska .......... PO 00000 Frm 00134 Fmt 4703 Maximum fees per term 329.17 170.00 725.00 210.15 391.75 529.50 543.00 425.33 20,787.00 19,455.00 15,000.00 1,774.78 2,264.75 45,774.25 2,660.50 584.00 265.83 295.00 190.00 505.00 316.00 273.00 629.75 338.50 343.66 420.05 456.30 473.00 345.00 471.86 340.00 1,001.00 450.00 584.75 373.00 205.40 251.00 310.00 43,660.00 249.00 15,440.00 1,325.70 2,428.24 16,367.00 13,063.00 17,222.00 50,752.96 11,235.00 2,884.70 5,500.00 16,308.00 20,793.50 19,374.50 37,808.00 805.00 11,898.00 13,646.00 1,589.55 Sfmt 9990 Maximum tuition per credit Nevada ............. New Hampshire New Jersey ....... New Mexico ...... New York .......... North Carolina .. North Dakota .... Ohio .................. Oklahoma ......... Oregon .............. Pennsylvania .... Puerto Rico ....... Rhode Island .... South Carolina .. South Dakota .... Tennessee ........ Texas ................ Utah .................. Vermont ............ Virgin Island ...... Virginia .............. Washington ....... West Virginia .... Wisconsin ......... Wyoming ........... Foreign .............. 156.75 1,003.75 468.66 229.40 1,010.00 606.63 464.46 508.25 188.60 407.00 934.00 90.00 376.00 829.00 99.80 270.00 1,549.00 238.70 512.00 125.00 353.50 430.00 268.67 673.00 99.00 439.69 Maximum fees per term 4,072.46 5,197.00 7,962.00 6,104.00 12,293.00 2,293.40 25,686.00 15,134.00 15,058.05 25,669.00 6,110.00 525.00 5,187.00 2,798.00 25,685.00 13,426.00 12,130.00 85,255.00 5,106.00 706.00 3,969.50 9,648.00 4,276.67 30,963.00 4,335.00 13,713.88 Approved: October 18, 2010. John R. Gingrich, Chief of Staff, Department of Veterans Affairs. [FR Doc. 2010–27095 Filed 10–26–10; 8:45 am] BILLING CODE 8320–01–P E:\FR\FM\27OCN1.SGM 27OCN1

Agencies

[Federal Register Volume 75, Number 207 (Wednesday, October 27, 2010)]
[Notices]
[Pages 66188-66193]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27147]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of a temporary, emergency amendment to sentencing 
guidelines and commentary.

-----------------------------------------------------------------------

SUMMARY: Pursuant to section 8 of the Fair Sentencing Act of 2010, 
Public Law 111-220, the Commission hereby gives notice of a temporary, 
emergency amendment to the sentencing guidelines and commentary. This 
notice sets forth the temporary, emergency amendment and the reason for 
amendment.
    The specific amendment in this notice is as follows: An amendment 
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: The Commission has specified an effective date of November 1, 
2010, for the emergency amendment.

[[Page 66189]]


FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, Telephone: (202) 502-4597.

SUPPLEMENTARY INFORMATION: The Commission must promulgate a temporary, 
emergency amendment to implement the directive in section 8 the Fair 
Sentencing Act of 2010, Public Law 111-220, by November 1, 2010. On 
September 8, 2010, the Commission published in the Federal Register a 
proposed amendment and issues for comment regarding the implementation 
of this directive. See 75 FR 54700 (September 8, 2010).
    The temporary, emergency amendment set forth in this notice also 
may be accessed through the Commission's Web site at http://www.ussc.gov.

    Authority: 28 U.S.C. 994(a), (o), (p), (x); section 8 of the 
Fair Sentencing Act of 2010, Pub. L. 111-220.

William K. Sessions III,
Chair.

Fair Sentencing Act of 2010

    1. 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 the 4-level (`minimal participant') reduction in 
Sec.  3B1.2(a), decrease to level 32.''.
    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 levels.'';
    By inserting after subdivision (10), as redesignated by this 
amendment, the following:
    ``(11) If the defendant bribed, or attempted to bribe, a law 
enforcement officer to facilitate the commission of the offense, 
increase by 2 levels.
    (12) If the defendant maintained a premises for the purpose of 
manufacturing or distributing a controlled substance, increase by 2 
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 fear, impulse, friendship, affection, or 
some combination thereof to involve another individual in the illegal 
purchase, sale, transport, or storage of controlled substances, (ii) 
the individual received little or no compensation from the illegal 
purchase, sale, transport, or storage of controlled substances, and 
(iii) the individual had minimal knowledge of the scope and structure 
of the enterprise;
    (B) The defendant, knowing that an individual was (i) less than 18 
years of age, (ii) 65 or more years of age, (iii) pregnant, or (iv) 
unusually vulnerable due to physical or mental condition or otherwise 
particularly susceptible to the criminal conduct, distributed a 
controlled substance to that individual or involved that individual in 
the offense;
    (C) The defendant was directly involved in the importation of a 
controlled substance;
    (D) 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;
    (E) The defendant committed the offense as part of a pattern of 
criminal conduct engaged in as a livelihood,
    Increase by 2 levels.
    (15) If the defendant receives the 4-level (`minimal participant') 
reduction in Sec.  3B1.2(a) and the offense involved all of the 
following factors:
    (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 received no monetary compensation from the 
illegal purchase, sale, transport, or storage of controlled substances; 
and
    (C) The defendant had minimal knowledge of the scope and structure 
of the enterprise,
    Decrease by 2 levels.''.
    Section 2D1.1(c) is amended in subdivision (1) in the third entry 
by striking ``4.5'' and inserting ``8.4''; in subdivision (2) in the 
third entry by striking ``1.5'' and inserting ``2.8''; by striking 
``4.5'' and inserting ``8.4''; in subdivision (3) in the third entry by 
striking ``500'' and inserting ``840''; by striking ``1.5'' and 
inserting ``2.8''; in subdivision (4) in the third entry by striking 
``150'' and inserting ``280''; by striking ``500'' and inserting 
``840''; in subdivision (5) in the third entry by striking ``50'' and 
inserting ``196''; by striking ``150'' and inserting ``280''; in 
subdivision (6) in the third entry by striking ``35'' and inserting 
``112''; by striking ``50'' and inserting ``196''; in subdivision (7) 
in the third entry by striking ``20'' and inserting ``28''; by striking 
``35'' and inserting ``112''; in subdivision (8) in the third entry by 
striking ``5'' and inserting ``22.4''; by striking ``20'' and inserting 
``28''; in subdivision (9) in the third entry by striking ``4'' and 
inserting ``16.8''; by striking ``5'' and inserting ``22.4''; in 
subdivision (10) in the third entry by striking ``3'' and inserting 
``11.2''; by striking ``4'' and inserting ``16.8''; in subdivision (11) 
in the third entry by striking ``2'' and inserting ``5.6''; by striking 
``3'' and inserting ``11.2''; in subdivision (12) in the third entry by 
striking ``1'' and inserting ``2.8''; by striking ``2'' and inserting 
``5.6''; in subdivision (13) in the third entry by striking ``500 MG'' 
and inserting ``1.4 G''; by striking ``1'' and inserting ``2.8''; and 
in subdivision (14) in the third entry by striking ``500 MG'' and 
inserting ``1.4 G''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 3 by inserting ``Application of Subsections (b)(1) and 
(b)(2).--
    (A) Application of Subsection (b)(1).--'' before ``Definitions'';
    By inserting ``in subsection (b)(1)'' after ``weapon possession''; 
by striking ``adjustment'' and inserting ``enhancement''; by striking 
``his'' and inserting ``the defendant's''; and by adding at the end the 
following:
    ``(B) Interaction of Subsections (b)(1) and (b)(2).--The 
enhancements in subsections (b)(1) and (b)(2) may 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). However, in a case 
in which the defendant merely possessed a dangerous weapon but did not 
use violence, make a credible threat to use violence, or direct the use 
of violence, subsection (b)(2) would not apply.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 8 in the last paragraph by striking ``(2)'' and 
inserting ``(3)''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10(B) in the first paragraph by striking ``(Except 
Cocaine Base)'' after ``Differing Controlled Substances''; and by 
striking the sentence beginning ``To determine''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10(C) by striking ``(Except Cocaine Base)'' after 
``Differing Controlled Substances''; and in subdivision (C)(iii) by 
striking ``five kilograms of marihuana'' and inserting ``2 grams of 
cocaine base''; by inserting ``, and the cocaine base is equivalent to 
7.142 kilograms of marihuana'' after ``16 kilograms of marihuana''; and 
by striking ``21'' and inserting ``23.142''.

[[Page 66190]]

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 by striking subdivision (D); and by redesignating 
subdivision (E) as subdivision (D).
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10(D), as redesignated by this amendment, in the table 
captioned ``Cocaine and Other Schedule I and II Stimulants (and their 
immediate precursors)*'' in the line referenced to Cocaine Base by 
striking ``20 kg'' and inserting ``3,571 gm''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended 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 ``Application Notes'' is 
amended by adding at the end the following:
    ``27. Application of Subsection (b)(11).--Subsection (b)(11) does 
not apply if the purpose of the bribery was to obstruct or impede the 
investigation, prosecution, or sentencing of the defendant. Such 
conduct is covered by Sec.  3C1.1 (Obstructing or Impeding the 
Administration of Justice) and, if applicable, Sec.  2D1.1(b)(14)(D).
    28. Application of Subsection (b)(12).--Subsection (b)(12) applies 
to a defendant who knowingly maintains a premises (i.e., a `building, 
room, or enclosure,' see Sec.  2D1.8, comment. (backg'd.)) for the 
purpose of manufacturing or distributing a controlled substance.
    Among the factors the court should consider in determining whether 
the defendant `maintained' the premises are (A) whether the defendant 
held a possessory interest in (e.g., owned or rented) the premises and 
(B) the extent to which the defendant controlled access to, or 
activities at, the premises.
    Manufacturing or distributing a controlled substance need not be 
the sole purpose for which the premises was maintained, but must be one 
of the defendant's primary or principal uses for the premises, rather 
than one of the defendant's incidental or collateral uses for the 
premises. In making this determination, the court should consider how 
frequently the premises was used by the defendant for manufacturing or 
distributing a controlled substance and how frequently the premises was 
used by the defendant for lawful purposes.
    29. Application of Subsection (b)(14).--
    (A) Distributing to a Specified Individual or Involving Such an 
Individual in the Offense (Subsection (b)(14)(B)).--If the defendant 
distributes a controlled substance to an individual or involves an 
individual in the offense, as specified in subsection (b)(14)(B), the 
individual is not a `vulnerable victim' for purposes of Sec.  3A1.1(b).
    (B) Directly Involved in the Importation of a Controlled Substance 
(Subsection (b)(14)(C)).--Subsection (b)(14)(C) applies if the 
defendant is accountable for the importation of a controlled substance 
under subsection (a)(1)(A) of Sec.  1B1.3 (Relevant Conduct (Factors 
that Determine the Guideline Range)), i.e., the defendant committed, 
aided, abetted, counseled, commanded, induced, procured, or willfully 
caused the importation of a controlled substance.
    If subsection (b)(3) or (b)(5) applies, do not apply subsection 
(b)(14)(C).
    (C) Pattern of Criminal Conduct Engaged in as a Livelihood 
(Subsection (b)(14)(E)).--For purposes of subsection (b)(14)(E), 
`pattern of criminal conduct' and `engaged in as a livelihood' have the 
meaning given such terms in Sec.  4B1.3 (Criminal Livelihood).''.
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
by inserting after the paragraph that begins ``For marihuana plants'' 
the following:
    ``The last sentence of subsection (a)(5) implements the directive 
to the Commission in section 7(1) of Public Law 111-220.
    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(3) 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)''.
    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.
    Section 2K2.4 captioned ``Application Notes'' is amended in Note 4 
by inserting after the first paragraph the following:
    ``A sentence under this guideline also accounts for conduct that 
would subject the defendant to an enhancement under Sec.  2D1.1(b)(2) 
(pertaining to use of violence, credible threat to use violence, or 
directing the use of violence). Do not apply that enhancement when 
determining the sentence for the underlying offense.''.
    The Commentary to Sec.  3B1.4 captioned ``Application Notes'' is 
amended in Note 2 by adding at the end as the last sentence the 
following: ``For example, if the defendant receives an enhancement 
under Sec.  2D1.1(b)(14)(B) for involving an individual less than 18 
years of age in the offense, do not apply this adjustment.''.
    The Commentary to Sec.  3C1.1 captioned ``Application Notes'' is 
amended in Note 7 by adding at the end the following new paragraph:
    ``Similarly, if the defendant receives an enhancement under Sec.  
2D1.1(b)(14)(D), do not apply this adjustment.''.
    Reason for Amendment: This amendment implements the emergency 
directive in section 8 of the Fair Sentencing Act of 2010, Public Law 
111-220 (the ``Act''). The Act reduced the statutory penalties for 
cocaine base (``crack cocaine'') offenses, eliminated the statutory 
mandatory minimum sentence for simple possession of crack cocaine, and 
contained directives requiring the Commission to review and amend the 
guidelines to account for specified aggravating and mitigating 
circumstances in certain drug cases. The emergency amendment authority 
provided in section 8 of the Act required the Commission to promulgate 
the guidelines, policy statements, or amendments provided for in the 
Act, and to make such conforming changes to the guidelines as the 
Commission determines necessary to achieve

[[Page 66191]]

consistency with other guideline provisions and applicable law, not 
later than 90 days after the date of enactment of the Act.
    First, the amendment amends 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) to account for the changes in the statutory penalties made 
in section 2 of the Act. Section 2 of the Act reduced the statutory 
penalties for offenses involving manufacturing or trafficking in crack 
cocaine by increasing the quantity thresholds required to trigger a 
mandatory minimum term of imprisonment. The quantity threshold required 
to trigger the 5-year mandatory minimum term of imprisonment was 
increased from 5 grams to 28 grams, and the quantity threshold required 
to trigger the 10-year mandatory minimum term of imprisonment was 
increased from 50 grams to 280 grams. See 21 U.S.C. 841(b)(1)(A), (B), 
(C), 960(b)(1), (2), (3).
    To account for these statutory changes, the amendment conforms the 
guideline penalty structure for crack cocaine offenses to the approach 
followed for other drugs, i.e., the base offense levels for crack 
cocaine are set in the Drug Quantity Table so that the statutory 
minimum penalties correspond to levels 26 and 32. See generally Sec.  
2D1.1, comment. (backg'd.). Accordingly, using the new drug quantities 
established by the Act, offenses involving 28 grams or more of crack 
cocaine are assigned a base offense level of 26, offenses involving 280 
grams or more of crack cocaine are assigned a base offense level of 32, 
and other offense levels are established by extrapolating upward and 
downward. Conforming to this approach ensures that the relationship 
between the statutory penalties for crack cocaine offenses and the 
statutory penalties for offenses involving other drugs is consistently 
and proportionally reflected throughout the Drug Quantity Table.
    To provide a means of obtaining a single offense level in cases 
involving crack cocaine and one or more other controlled substances, 
the amendment also establishes a marihuana equivalency for crack 
cocaine under which 1 gram of crack cocaine is equivalent to 3,571 
grams of marihuana. (The marihuana equivalency for any controlled 
substance is a constant that can be calculated using any threshold in 
the Drug Quantity Table by dividing the amount of marihuana 
corresponding to that threshold by the amount of the other controlled 
substance corresponding to that threshold. For example, the threshold 
quantities at base offense level 26 are 100,000 grams of marihuana and 
28 grams of crack cocaine; 100,000 grams divided by 28 is 3,571 grams.) 
In the commentary to Sec.  2D1.1, the amendment makes a conforming 
change to the rules for cases involving both crack cocaine and one or 
more other controlled substances.
    The amendment deletes the special rules in Note 10(D) for cases 
involving crack cocaine and one or more other controlled substances, 
and revises Note 10(C) so that it provides an example of such a case.
    Second, the amendment amends Sec.  2D1.1 to add a sentence at the 
end of subsection (a)(5) (often referred to as the ``mitigating role 
cap''). The new provision provides that if the offense level otherwise 
resulting from subsection (a)(5) is greater than level 32, and the 
defendant receives the 4-level (``minimal participant'') reduction in 
subsection (a) of Sec.  3B1.2 (Mitigating Role), the base offense level 
shall be decreased to level 32. This provision responds to section 7(1) 
of the Act, which directed the Commission 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.''
    Third, the amendment amends Sec.  2D1.1 to create a new specific 
offense characteristic at subsection (b)(2) providing an enhancement of 
2 levels if the defendant used violence, made a credible threat to use 
violence, or directed the use of violence. The new specific offense 
characteristic responds to section 5 of the Act, which directed the 
Commission 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.''
    The amendment also revises the commentary to Sec.  2D1.1 to clarify 
how this new specific offense characteristic interacts with subsection 
(b)(1). Specifically, Application Note 3 is amended to provide that the 
enhancements in subsections (b)(1) (regarding possession of a dangerous 
weapon) and (b)(2) may be applied cumulatively. However, in a case in 
which the defendant merely possessed a dangerous weapon but did not use 
violence, make a credible threat to use violence, or direct the use of 
violence, subsection (b)(2) would not apply.
    In addition, the amendment makes a conforming change to the 
commentary to Sec.  2K2.4 (Use of Firearm, Armor-Piercing Ammunition, 
or Explosive During or in Relation to Certain Crimes) to address cases 
in which the defendant is sentenced under both Sec.  2D1.1 (for a drug 
trafficking offense) and Sec.  2K2.4 (for an offense under 18 U.S.C. 
924(c)). In such a case, the sentence under Sec.  2K2.4 accounts for 
any weapon enhancement; therefore, in determining the sentence under 
Sec.  2D1.1, the weapon enhancement in Sec.  2D1.1(b)(1) does not 
apply. See Sec.  2K2.4, comment. (n. 4). The amendment amends this 
commentary to similarly provide that, in a case in which the defendant 
is sentenced under both Sec. Sec.  2D1.1 and 2K2.4, the new enhancement 
at Sec.  2D1.1(b)(2) also is accounted for by Sec.  2K2.4 and, 
therefore, does not apply.
    Fourth, the amendment amends Sec.  2D1.1 to create a new specific 
offense characteristic at subsection (b)(11) providing an enhancement 
of 2 levels if the defendant bribed, or attempted to bribe, a law 
enforcement officer to facilitate the commission of the offense. The 
new specific offense characteristic responds to section 6(1) of the 
Act, which directed the Commission ``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.''
    The amendment also revises the commentary to Sec.  2D1.1 to clarify 
how this new specific offense characteristic interacts with the 
adjustment at Sec.  3C1.1 (Obstructing or Impeding the Administration 
of Justice). Specifically, new Application Note 27 provides that 
subsection (b)(11) does not apply if the purpose of the bribery was to 
obstruct or impede the investigation, prosecution, or sentencing of the 
defendant because such conduct is covered by Sec.  3C1.1.
    Fifth, the amendment amends Sec.  2D1.1 to create a new specific 
offense characteristic at subsection (b)(12) providing an enhancement 
of 2 levels if the defendant maintained a premises for the purpose of 
manufacturing or distributing a controlled substance. The new specific 
offense characteristic responds to section 6(2) of the Act, which 
directed the Commission 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).''
    The amendment also adds commentary in Sec.  2D1.1 at Application

[[Page 66192]]

Note 28 providing that among the factors the court should consider in 
determining whether the defendant ``maintained'' the premises are (A) 
whether the defendant held a possessory interest (e.g., owned or 
rented) the premises and (B) the extent to which the defendant 
controlled access to, or activities at, the premises. Application Note 
28 also provides that manufacturing or distributing a controlled 
substance need not be the sole purpose for which the premises was 
maintained, but must be one of the defendant's primary or principal 
uses for the premises, rather than one of the defendant's incidental or 
collateral uses of the premises. In making this determination, the 
court should consider how frequently the premises was used by the 
defendant for manufacturing or distributing a controlled substance and 
how frequently the premises was used by the defendant for lawful 
purposes.
    Sixth, the amendment amends Sec.  2D1.1 to create a new specific 
offense characteristic at subsection (b)(14) that provides an 
enhancement of 2 levels if the defendant receives an adjustment under 
Sec.  3B1.1 (Aggravating Role) and the offense involved one or more of 
five specified factors. The new specific offense characteristic 
responds to section 6(3) of the Act, which directed the Commission ``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.''
    The amendment also revises the commentary to Sec.  2D1.1 to provide 
guidance in applying the new specific offense characteristic at Sec.  
2D1.1(b)(14). Specifically, new Application Note 29 provides that if 
the defendant distributes a controlled substance to an individual or 
involves an individual in the offense, as specified in subsection 
(b)(14)(B), the individual is not a ``vulnerable victim'' for purposes 
of subsection (b) of Sec.  3A1.1 (Hate Crime Motivation or Vulnerable 
Victim). Application Note 29 also provides that subsection (b)(14)(C) 
applies if the defendant committed, aided, abetted, counseled, 
commanded, induced, procured, or willfully caused the importation of a 
controlled substance. Subsection (b)(14)(C), however, does not apply if 
subsection (b)(3) or (b)(5) (as redesignated by the amendment) applies 
because the defendant's involvement in importation is adequately 
accounted for by those subsections. In addition, Application Note 29 
defines ``pattern of criminal conduct'' and ``engaged in as a 
livelihood'' for purposes of subsection (b)(14)(E) as those terms are 
defined in Sec.  4B1.3 (Criminal Livelihood).
    The amendment also revises the commentary in Sec.  3B1.4 (Using a 
Minor To Commit a Crime) and Sec.  3C1.1 (Obstructing or Impeding the 
Administration of Justice) to specify how those adjustments interact 
with Sec.  2D1.1(b)(14)(B) and (D), respectively. Specifically, 
Application Note 2 to Sec.  3B1.4 is amended to clarify that the 
increase of two levels under this section would not apply if the 
defendant receives an enhancement under Sec.  2D1.1(b)(14)(B). 
Similarly, Application Note 7 to Sec.  3C1.1 is amended to clarify that 
the increase of two levels under this section would not apply if the 
defendant receives an enhancement under Sec.  2D1.1(b)(14)(D).
    Seventh, the amendment amends Sec.  2D1.1 to create a new specific 
offense characteristic providing a 2-level downward adjustment if the 
defendant receives the 4-level (``minimal participant'') reduction in 
subsection (a) of Sec.  3B1.2 (Mitigating Role) and the offense 
involved each of three additional specified factors: Namely, the 
defendant was motivated by an intimate or familial relationship or by 
threats or fear to commit the offense when the defendant was otherwise 
unlikely to commit such an offense; was to receive no monetary 
compensation from the illegal purchase, sale, transport, or storage of 
controlled substances; and had minimal knowledge of the scope and 
structure of the enterprise. The specific offense characteristic 
responds to section 7(2) of the Act, which directed the Commission 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.''
    Eighth, to reflect the renumbering of specific offense 
characteristics in Sec.  2D1.1(b) by the amendment, technical and 
conforming changes are made to the commentary to Sec.  2D1.1 and to 
Sec.  2D1.14 (Narco-Terrorism).
    Ninth, the amendment amends Sec.  2D2.1 (Unlawful Possession; 
Attempt or Conspiracy) to account for the changes in the statutory 
penalties for simple possession of crack cocaine made in section 3 of 
the Act. Section 3 of the Act 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). To account for this 
statutory change, the amendment deletes the cross reference at Sec.  
2D2.1(b)(1) under which an offender who possessed more than 5 grams of

[[Page 66193]]

crack cocaine was sentenced under the drug trafficking guideline, Sec.  
2D1.1.

[FR Doc. 2010-27147 Filed 10-26-10; 8:45 am]
BILLING CODE 2210-40-P