Sentencing Guidelines for United States Courts, 66188-66193 [2010-27147]
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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 ‘‘https://
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).
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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:
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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:
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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 https://
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
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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
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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’’.
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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
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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:
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‘‘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
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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
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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
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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
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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).
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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
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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
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]]>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]
=======================================================================
-----------------------------------------------------------------------
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 https://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
