Sentencing Guidelines for United States Courts, 3193-3209 [2011-994]

Agencies

• United States Sentencing Commission

[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Notices]
[Pages 3193-3209]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-994]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

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

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, the United States Sentencing Commission is considering 
promulgating certain amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice also sets forth a number of 
issues for comment, some of which are set forth together with the 
proposed amendments; some of which are set forth independent of any 
proposed amendment; and one of which (regarding retroactive application 
of proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION 
portion of this notice.
    The proposed amendments and issues for comment in this notice are 
as follows: (1) A proposed amendment on drug trafficking, including (A) 
a proposal to repromulgate as a permanent amendment the emergency, 
temporary amendment in response to the Fair Sentencing Act of 2010, 
Public Law 111-220, regarding offenses involving crack cocaine and 
regarding certain aggravating and mitigating circumstances in drug 
trafficking cases, and (B) a proposed change to Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to implement the directive in section 4 of the Secure and 
Responsible Drug Disposal Act of 2010, Public Law 111-273, and related 
issues for comment on drug trafficking; (2) a proposed amendment on 
firearms, including

[[Page 3194]]

proposed changes to Sec.  2M5.2 (Exportation of Arms, Munitions, or 
Military Equipment or Services Without Required Validated Export 
License) regarding certain cases involving small arms and ammunition 
crossing the border and related issues for comment, including whether 
revisions to Sec.  2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition) and related guidelines may be 
appropriate to address concerns about firearms crossing the border and 
straw purchasers; (3) a proposed amendment to Appendix A (Statutory 
Index) in response to the Dodd-Frank Wall Street Reform and Protection 
Act, Public Law 111-203, and issues for comment regarding the 
directives in section 1079A of that Act; (4) a proposed amendment to 
Sec.  2B1.1 (Theft, Property Destruction, and Fraud) to implement the 
directive in section 10606 of the Patient Protection and Affordable 
Care Act, Public Law 111-148, and a related issue for comment; (5) a 
proposed amendment on supervised release, including a proposed change 
to Sec.  5D1.1 (Imposition of a Term of Supervised Release) on cases in 
which the court is required by the guidelines to impose supervised 
release and a proposed change to Sec.  5D1.2 (Term of Supervised 
Release) on the minimum lengths required by that guideline for a term 
of supervised release, and related issues for comment; (6) a proposed 
amendment to Sec.  2L1.2 (Unlawfully Entering or Remaining in the 
United States) that would provide a limitation on the use of 
convictions under Sec.  2L1.2(b)(1)(A) and (B) in certain 
circumstances; (7) a proposed amendment to Sec.  2J1.1 (Contempt) that 
would address a circuit conflict on the applicability of a specific 
enhancement in a case involving the willful failure to pay court-
ordered child support; (8) a proposed amendment in response to 
miscellaneous issues arising from legislation recently enacted and 
other miscellaneous guideline application issues, including proposed 
changes to the policy statement at Sec.  6B1.2 (Standards for 
Acceptance of Plea Agreements) in light of United States v. Booker, 543 
U.S. 220 (2005), and proposed changes to Appendix A (Statutory Index) 
to address certain criminal provisions in the Coast Guard Authorization 
Act of 2010, Public Law 111-281; and (9) a proposed amendment in 
response to certain technical issues that have arisen in the 
guidelines.

DATES: (1) Written Public Comment.--Written public comment regarding 
the proposed amendments and issues for comment set forth in this 
notice, including public comment regarding retroactive application of 
any of the proposed amendments, should be received by the Commission 
not later than March 21, 2011.
    (2) Public Hearing.--The Commission plans to hold a public hearing 
regarding the proposed amendments and issues for comment set forth in 
this notice. Further information regarding the public hearing, 
including requirements for testifying and providing written testimony, 
as well as the location, time, and scope of the hearing, will be 
provided by the Commission on its Web site at https://www.ussc.gov.

ADDRESSES: Public comment should be sent to: United States Sentencing 
Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC 
20002-8002, Attention: Public Affairs.

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

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for Federal courts pursuant to 28 U.S.C. 994(a). The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline 
amendments to the Congress not later than the first day of May each 
year pursuant to 28 U.S.C. 994(p).
    The proposed amendments in this notice are presented in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline or commentary. Bracketed text within a 
proposed amendment indicates a heightened interest on the Commission's 
part in comment and suggestions regarding alternative policy choices; 
for example, a proposed enhancement of [2][4][6] levels indicates that 
the Commission is considering, and invites comment on, alternative 
policy choices regarding the appropriate level of enhancement. 
Similarly, bracketed text within a specific offense characteristic or 
application note means that the Commission specifically invites comment 
on whether the proposed provision is appropriate. Second, the 
Commission has highlighted certain issues for comment and invites 
suggestions on how the Commission should respond to those issues.
    The Commission requests public comment regarding whether, pursuant 
to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any proposed amendment 
published in this notice should be included in subsection (c) of Sec.  
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range (Policy Statement)) as an amendment that may be applied 
retroactively to previously sentenced defendants. The Commission lists 
in Sec.  1B1.10(c) the specific guideline amendments that the court may 
apply retroactively under 18 U.S.C. 3582(c)(2). The background 
commentary to Sec.  1B1.10 lists the purpose of the amendment, the 
magnitude of the change in the guideline range made by the amendment, 
and the difficulty of applying the amendment retroactively to determine 
an amended guideline range under Sec.  1B1.10(b) as among the factors 
the Commission considers in selecting the amendments included in Sec.  
1B1.10(c). To the extent practicable, public comment should address 
each of these factors.
    Additional information pertaining to the proposed amendments 
described in this notice may be accessed through the Commission's Web 
site at https://www.ussc.gov.

    Authority:  28 U.S.C. 994(a), (o), (p), (x); USSC Rules of 
Practice and Procedure, Rule 4.4.

Patti B. Saris,
Chair.

1. Drugs

    Synopsis of Proposed Amendment: In October 2010, the Commission 
promulgated an emergency, temporary amendment to implement the 
emergency directive in section 8 of the Fair Sentencing Act of 2010, 
Public Law 111-220 (the ``Fair Sentencing Act''). See Appendix C, 
Amendment 748 (effective November 1, 2010). The emergency amendment 
made a number of substantive changes to Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy), including changes to the Drug Quantity Table for offenses 
involving cocaine base (``crack'' cocaine), new enhancements to account 
for certain aggravating factors, and new reductions to account for 
certain mitigating factors. The emergency amendment also made revisions 
to five other guidelines: Sec. Sec.  2D1.14 (Narco-Terrorism), 2D2.1 
(Unlawful Possession; Attempt or Conspiracy), 2K2.4 (Use of Firearm, 
Armor-Piercing Ammunition, or Explosive During or in Relation to

[[Page 3195]]

Certain Crimes), 3B1.4 (Using a Minor To Commit a Crime), and 3C1.1 
(Obstructing or Impeding the Administration of Justice). The proposed 
amendment re-promulgates these guidelines without change.
    In addition to re-promulgating the emergency amendment, the 
proposed amendment further amends the Commentary to Sec.  2D1.1 in 
response to the Secure and Responsible Drug Disposal Act of 2010, 
Public Law 111-273 (the ``Drug Disposal Act''). Section 3 of the Drug 
Disposal Act amended 21 U.S.C. 822 to authorize certain persons in 
possession of controlled substances (e.g., ultimate users and long-term 
care facilities) to deliver the controlled substances for the purpose 
of disposal. Section 4 of the Drug Disposal Act contained a directive 
to the Commission to ``review and, if appropriate, amend'' the 
guidelines to ensure that the guidelines provide ``an appropriate 
penalty increase of up to 2 offense levels above the sentence otherwise 
applicable in Part D of the Guidelines Manual if a person is convicted 
of a drug offense resulting from the authorization of that person to 
receive scheduled substances from an ultimate user or long-term care 
facility as set forth in the amendments made by section 3.'' The 
proposed amendment responds to the directive by amending Application 
Note 8 to Sec.  2D1.1 to provide that an adjustment under Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill) applies in a case 
in which the defendant is convicted of a drug offense resulting from 
the authorization of the defendant to receive scheduled substances from 
an ultimate user or long-term care facility.
    The proposed amendment concludes with a series of issues for 
comment arising out of the Commission's continued work on the 
guidelines applicable to drug trafficking, including issues for comment 
on--
    (1) Whether the Commission should make any changes to the Fair 
Sentencing Act emergency amendment in re-promulgating it as a permanent 
amendment;
    (2) Whether the permanent amendment or any part thereof should be 
included in subsection (c) of Sec.  1B1.10 (Reduction in Term of 
Imprisonment as a Result of Amended Guideline Range (Policy Statement)) 
as an amendment that may be applied retroactively to previously 
sentenced defendants;
    (3) What changes, if any, should be made to the guidelines 
applicable to drug trafficking; and
    (4) What changes, if any, should be made to Sec.  3B1.1 
(Aggravating Role) and Sec.  3B1.2 (Mitigating Role) as they apply to 
drug trafficking cases.

Proposed Amendment

    Sections 2D1.1, 2D1.14, 2D2.1, 2K2.4, 3B1.4, and 3C1.1, as amended 
by Amendment 748 (see Supplement to the 2010 Guidelines Manual 
(effective November 1, 2010); see also 75 FR 66188 (October 27, 2010)), 
are repromulgated without change.
    In addition, the Commentary to Sec.  2D1.1 captioned ``Application 
Notes'' is amended in Note 8 in the first paragraph by adding at the 
end the following:
    ``An adjustment under Sec.  3B1.3 also applies in a case in which 
the defendant is convicted of a drug offense resulting from the 
authorization of the defendant to receive scheduled substances from an 
ultimate user or long-term care facility. See 21 U.S.C. 822(g).''.

Issues for Comment

    1. Re-Promulgation of the Fair Sentencing Act. The Fair Sentencing 
Act of 2010 reduced statutory penalties for cocaine base (``crack'' 
cocaine) offenses, eliminated the mandatory minimum sentence for simple 
possession of crack cocaine, and directed the Commission to review and 
amend the sentencing guidelines to account for specified aggravating 
and mitigating circumstances in certain drug cases.
    Section 8 of the Act required the Commission to promulgate, under 
emergency authority, the amendments provided for in the Act and such 
conforming amendments as the Commission determined necessary to achieve 
consistency with other guideline provisions and applicable law. The 
Commission was required to promulgate the amendment as soon as 
practicable, and in any event not later than 90 days after enactment of 
the Act. The Commission promulgated the temporary, emergency amendment 
required by the Act and established an effective date of November 1, 
2010, for the amendment. See Appendix C, Amendment 748 (effective 
November 1, 2010). The temporary, emergency amendment will expire not 
later than November 1, 2011. See section 21(a) of the Sentencing Act of 
1987 (28 U.S.C. 994 note); 28 U.S.C. 994(p).
    The Commission is continuing work on the issues raised by the Act 
during the regular amendment cycle ending May 1, 2011, with a view to 
re-promulgating the temporary amendment as a permanent amendment (in 
its original form, or with revisions) under 28 U.S.C. 994(p). The 
Commission seeks comment on whether the Commission should make any 
changes to the emergency amendment in re-promulgating it as a permanent 
amendment. If so, what changes should the Commission make?
    In particular, the Commission seeks comment on whether the penalty 
structure in the Drug Quantity Table for crack cocaine should continue 
to be set so that the statutory mandatory minimum penalties correspond 
to base offense levels 26 and 32. When the Commission re-promulgates 
the temporary amendment as a permanent amendment, should the Commission 
amend the Drug Quantity Table for crack cocaine so that base offense 
levels 24 and 30, rather than 26 and 32, correspond to the Act's new 
mandatory minimum penalties?
    2. Possible Retroactivity of Permanent Amendment or Any Part 
Thereof. The proposed permanent amendment would reduce the term of 
imprisonment recommended in the guidelines applicable to a particular 
offense or category of offenses. See 28 U.S.C. 994(u) (``If the 
Commission reduces the term of imprisonment recommended in the 
guidelines applicable to a particular offense or category of offenses, 
it shall specify in what circumstances and by what amount the sentences 
of prisoners serving terms of imprisonment for the offense may be 
reduced.''). The Commission seeks comment regarding whether, pursuant 
to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), the proposed permanent 
amendment or any part thereof should be included in subsection (c) of 
Sec.  1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range (Policy Statement)) as an amendment that may be applied 
retroactively to previously sentenced defendants.
    In particular, the proposed permanent amendment would change the 
Drug Quantity Table in Sec.  2D1.1 and also make additional mitigating 
changes (e.g., a ``minimal role cap'' in Sec.  2D1.1(a)(5), a downward 
adjustment for certain defendants with ``minimal'' role in Sec.  
2D1.1(b)(15), and a deletion of the cross reference in Sec.  
2D2.1(b)(1) under which an offender who possessed more than 5 grams of 
crack cocaine was sentenced under Sec.  2D1.1) as well as certain 
proposed enhancements (e.g., enhancements for violence in Sec.  
2D1.1(b)(2), for bribery in Sec.  2D1.1(b)(11), for maintaining a drug 
premises in Sec.  2D1.1(b)(12), and for certain defendants with an 
aggravating role in Sec.  2D1.1(b)(14)). Should the Commission provide 
that only parts of the proposed permanent amendment may be applied 
retroactively? For example, should the Commission provide that only the 
changes to the Drug Quantity Table may be applied retroactively, or 
that those changes and

[[Page 3196]]

the other mitigating changes may be applied retroactively? 
Alternatively, should the Commission provide that the entire proposed 
permanent amendment may be applied retroactively, including the 
proposed enhancements (provided that the amended guideline range 
resulting from the proposed permanent amendment is not greater than the 
original term of imprisonment imposed)?
    If the Commission does provide that the proposed permanent 
amendment or any part thereof may be applied retroactively to 
previously sentenced defendants, should the Commission provide further 
guidance or limitations regarding the circumstances in which and the 
amount by which sentences may be reduced? For example, should the 
Commission limit retroactivity only to a particular category or 
categories of defendants, such as (A) Defendants who were sentenced 
within the guideline range, (B) defendants who were sentenced within 
the guideline range or who received a departure under Chapter Five, 
Part K, (C) defendants in a particular criminal history category or 
categories (e.g., defendants in Criminal History Category I), (D) 
defendants sentenced before United States v. Booker, 543 U.S. 220 
(2005), (E) defendants sentenced before Kimbrough v. United States, 552 
U.S. 85, 110 (2007) (``it would not be an abuse of discretion for a 
district court to conclude when sentencing a particular defendant that 
the crack/powder disparity yields a sentence `greater than necessary' 
to achieve Sec.  3553(a)'s purposes, even in a mine-run case''), or (F) 
defendants sentenced before Spears v. United States, 555 U.S. 261, 129 
S.Ct. 840, 844 (2009) (``we now clarify that district courts are 
entitled to reject and vary categorically from the crack-cocaine 
Guidelines based on a policy disagreement with those Guidelines'')?
    If the Commission were to provide that the proposed amendment or 
any part thereof may be applied retroactively to previously sentenced 
defendants, what conforming changes, if any, should the Commission make 
to Sec.  1B1.10?
    3. Whether Additional Revisions to the Drug Trafficking Guidelines 
May Be Appropriate. The Commission requests comment on whether any 
additional revisions should be made to the guidelines applicable to 
drug trafficking cases. The complexity and scope of such an undertaking 
is such that it may not be completed this year (i.e., during the 
amendment cycle ending May 1, 2011), but the Commission is requesting 
comment regarding what revisions, if any, to Sec.  2D1.1 and related 
guidelines may be appropriate this year.
    Drug Quantity Table. The penalty structure of the Drug Quantity 
Table is based on the penalty structure of Federal drug laws, which 
generally establish three tiers of penalties for manufacturing and 
trafficking in controlled substances, each based on the amount of 
controlled substances involved. See 21 U.S.C. 841(b)(1)(A), (B), (C), 
960(b)(1), (2), (3). For smaller quantities, the statutory maximum term 
of imprisonment is 20 years, and there is no statutory minimum term of 
imprisonment. If the amount of the controlled substance reaches a 
statutorily specified quantity, however, the statutory maximum term 
increases to 40 years, and a statutory minimum term of 5 years applies. 
If the amount of the controlled substance reaches ten times that 
specified quantity, the statutory maximum term is life, and a statutory 
minimum term of 10 years applies.
    The Commission has generally incorporated these statutory mandatory 
minimum sentences into the Drug Quantity Table and extrapolated upward 
and downward to set guideline sentencing ranges for all drug 
quantities. See Sec.  2D1.1, comment. (backg'd.) (``The base offense 
levels in Sec.  2D1.1 are either provided directly by the Anti-Drug 
Abuse Act of 1986 or are proportional to the levels established by 
statute, and apply to all unlawful trafficking.''). The drug quantity 
thresholds in the Drug Quantity Table have generally been set so as to 
provide base offense levels corresponding to guideline ranges that are 
slightly above the statutory mandatory minimum penalties. Thus, the 
quantity that triggers a statutory 5-year mandatory minimum term of 
imprisonment is the quantity that triggers a base offense level of 26, 
and the quantity that triggers a statutory 10-year mandatory minimum 
term of imprisonment is the quantity that triggers a base offense level 
of 32. See Sec.  2D1.1, comment. (backg'd.) (``The base offense levels 
at levels 26 and 32 establish guideline ranges with a lower limit as 
close to the statutory minimum as possible; e.g., level 32 ranges from 
121 to 151 months, where the statutory minimum is ten years or 120 
months.''). The Commission has stated that ``[t]he base offense levels 
are set at guideline ranges slightly higher than the mandatory minimum 
levels to permit some downward adjustment for defendants who plead 
guilty or otherwise cooperate with authorities.'' See United States 
Sentencing Commission, Special Report to Congress: Cocaine and Federal 
Sentencing Policy (February 1995) at 148.
    The ``Safety Valve''. In 1994 Congress enacted the ``safety 
valve,'' which applies to certain first-time, non-violent drug 
defendants and allows the court, without any government motion, to 
impose a sentence below a statutory mandatory minimum penalty if the 
court finds, among other things, that the defendant ``has truthfully 
provided to the Government all information and evidence the defendant 
has concerning the offense or offenses that were part of the same 
course of conduct or of a common scheme or plan''. See 18 U.S.C. 
3553(f). This statutory provision is incorporated into the guidelines 
at USSG Sec.  5C1.2 (Limitation on Applicability of Statutory Minimum 
Sentences in Certain Cases). In addition, Sec.  2D1.1(b)(16) provides a 
2-level reduction if the defendant meets the ``safety valve'' criteria, 
regardless of whether a mandatory minimum penalty applies in the case.
    The Commission seeks comment on what changes, if any, should be 
made to the guidelines applicable to drug trafficking cases. In 
particular, the Commission seeks comment on whether the Commission 
should consider changing how the base offense levels in the Drug 
Quantity Table incorporate the statutory mandatory minimum penalties 
and, if so, how? For example, should the Commission amend the Drug 
Quantity Table so that base offense levels 24 and 30, rather than 26 
and 32, correspond with the statutory mandatory minimum penalties? As 
mentioned above, such an undertaking may not be completed this year 
(i.e., during the amendment cycle ending May 1, 2011).
    The Commission is also requesting comment regarding what revisions, 
if any, to Sec.  2D1.1 and related guidelines may be appropriate this 
year. For example, should the Commission consider--
    A. A 2-level downward adjustment in drug trafficking cases if there 
are no aggravating circumstances involved in the case, e.g., none of 
the alternative base offense levels for death or serious bodily injury 
in Sec.  2D1.1(a)(1)-(4) apply, none of the enhancements in Sec.  
2D1.1(b) apply, and none of the upward adjustments in Chapter Three 
apply?
    B. expanding the 2-level downward adjustment in subsection 
(b)(16)--which applies to defendants who meet the ``safety valve'' 
criteria--so that it applies to defendants who have more than 1 
criminal history point but otherwise meet all other ``safety valve'' 
criteria, or providing a similar downward adjustment to drug 
trafficking defendants who truthfully provide to

[[Page 3197]]

the Government all information and evidence the defendant has 
concerning the offense?
    If the Commission were to make changes to the guidelines applicable 
to drug trafficking cases, what conforming changes, if any, should the 
Commission make to other provisions of the Guidelines Manual?
    4. Role Adjustments. The Fair Sentencing Act of 2010 contained 
several directives to the Commission to amend the guidelines to provide 
increased emphasis on the defendant's role in the offense. See Fair 
Sentencing Act of 2010 Sec. Sec.  6 (``Increased Emphasis on 
Defendant's Role and Certain Aggravating Factors''), 7 (``Increased 
Emphasis on Defendant's Role and Certain Mitigating Factors''). The 
proposed permanent amendment implements these directives by adding 
several provisions to Sec.  2D1.1, including a new sentence in 
subsection (a)(5) (a maximum base offense level for certain defendants 
with a minimal role) and new specific offense characteristics at 
subsections (b)(14) (an enhancement for certain defendants with an 
aggravating role) and (15) (a downward adjustment for certain 
defendants with a minimal role).
    In light of these directives and the Commission's continued work on 
the guidelines applicable to drug trafficking, the Commission requests 
comment on what changes, if any, should be made to Sec.  3B1.1 
(Aggravating Role) and Sec.  3B1.2 (Mitigating Role) as they apply to 
drug trafficking cases.

Mitigating Role

    The text of Sec.  3B1.2 has remained unchanged from the original 
Guidelines Manual in 1987; the guideline continues to provide a 
downward adjustment based on the defendant's role in the offense: 4 
levels if the defendant was a ``minimal'' participant in any criminal 
activity, 2 levels if the defendant was a ``minor'' participant in such 
activity, and 3 levels in cases falling in between.
    The Commentary to Sec.  3B1.2 clarifies when and to whom the 
guideline applies. While the Commission has amended and reorganized the 
Commentary several times since 1987 with regard to certain types of 
cases, many elements of the commentary remain the same, including the 
following:

    To be eligible for an adjustment, the defendant must ``play[] a 
part in committing the offense that makes him substantially less 
culpable than the average participant.'' See Sec.  3B1.2, 
Application Note 3(A).
    The 4-level ``minimal'' role adjustment applies if the defendant 
is ``plainly among the least culpable of those involved in the 
conduct of a group.'' See Sec.  3B1.2, Application Note 4.
    The 2-level ``minor'' role adjustment applies if the defendant 
``is less culpable than most other participants'' but his or her 
conduct ``could not be described as minimal.'' See Sec.  3B1.2, 
Application Note 5.
    The determination whether to apply a 4-, 3-, or 2-level 
adjustment is ``heavily dependent upon the facts of the particular 
case.'' See Sec.  3B1.2, Application Note 3(C).

    In 2001, the Commission amended the Commentary to clarify that a 
defendant who is held accountable under Sec.  1B1.3 (Relevant Conduct) 
only for the amount of drugs the defendant personally handled is not 
automatically precluded from receiving an adjustment under Sec.  3B1.2. 
See USSG App. C, Amendment 635 (effective November 1, 2001). The 
Commission also made a number of other revisions to the commentary to 
clarify guideline application. Id. In making these changes, the 
Commission deleted a portion of the Commentary that had stated that a 
``downward adjustment for a minimal participant * * * would be 
appropriate, for example, for someone who played no other role in a 
very large drug smuggling operation than to offload part of a single 
marihuana shipment, or in a case where an individual was recruited as a 
courier for a single smuggling transaction involving a small amount of 
drugs.'' Id.
    The Commission has received public comment stating that there are 
differences from district to district with regard to the application of 
Sec.  3B1.2 in drug trafficking cases. In addition, the Commission has 
observed that, in drug trafficking cases, there are differences from 
district to district both on the rates of application of Sec.  3B1.2 
and the relative rates of application of the 4-, 3-, and 2-level 
adjustments.

Aggravating Role

    As with the mitigating role guideline, the text of the aggravating 
role guideline, Sec.  3B1.1, has remained unchanged from the original 
Guidelines Manual in 1987. The guideline continues to provide an upward 
adjustment based on the defendant's role in the offense: 4 levels if 
the defendant was an ``organizer or leader'' in a criminal activity 
that involved five or more participants or was otherwise extensive, 3 
levels if the defendant was a ``manager or supervisor (but not an 
organizer or leader)'' of such a criminal activity, and 2 levels if the 
defendant was an organizer, leader, manager, or supervisor in any 
criminal activity other than described above.
    The Commentary to Sec.  3B1.1 defines the term ``participant'', see 
Sec.  3B1.1, Application Note 1; provides guidance on assessing whether 
the criminal history is ``otherwise extensive'', see Sec.  3B1.1, 
Application Note 3; and provides guidance on distinguishing a 
leadership role from one of mere supervision, see Sec.  3B1.1, 
Application Note 4.
    Among other things, the Commission is seeking to determine whether 
there are application issues regarding Sec.  3B1.1 warranting a 
Commission response.

Request for Comment

    What changes, if any, should the Commission make to Sec. Sec.  
3B1.1 and 3B1.2 as they apply to drug trafficking cases? For example, 
should the Commission provide more specific guidance on when a 
defendant in a drug trafficking case should receive an upward 
adjustment for aggravating role or a downward adjustment for mitigating 
role and on which level of adjustment should apply? If so, what should 
that specific guidance be?

2. Firearms

    Synopsis of Proposed Amendment: This proposed amendment amends the 
guideline for international weapons trafficking, Sec.  2M5.2 
(Exportation of Arms, Munitions, or Military Equipment or Services 
Without Required Validated Export License). As described more fully 
below, the proposed amendment provides higher penalties for certain 
cases involving small arms crossing the border and more guidance on 
cases involving ammunition crossing the border.
    In addition to proposing these revisions to cross-border offenses 
under Sec.  2M5.2, the Commission is conducting a more comprehensive 
review of firearms offenses to determine whether changes to the primary 
firearms guideline, Sec.  2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition), may also be appropriate to address 
concerns about firearms crossing the border. The complexity and scope 
of the review is such that it likely could not be completed this year 
(i.e., during the amendment cycle ending May 1, 2011), but the 
Commission is considering what revisions, if any, to Sec.  2K2.1 and 
related guidelines may be appropriate this year. This proposed 
amendment concludes with issues for comment on what revisions, if any, 
to Sec.  2K2.1 and related guidelines may be appropriate this year.

[[Page 3198]]

Cases Involving Cross-Border Trafficking in Small Arms or Ammunition

    First, the proposed amendment amends Sec.  2M5.2 to narrow the 
scope of the alternative base offense level of 14. This raises 
penalties for certain cases involving cross-border trafficking of small 
arms, because certain defendants who currently receive the alternative 
base offense level of 14 would instead receive the higher alternative 
base offense level of 26. The base offense level of 14 currently 
applies ``if the offense involved only non-fully automatic small arms 
(rifles, handguns, or shotguns) and the number of weapons did not 
exceed ten.'' See Sec.  2M5.2(a)(1), (2). The proposed amendment would 
reduce the threshold number of small arms in subsection (a)(2) from ten 
to [two]-[five] and require that all such small arms be possessed 
solely for personal use.
    The proposed amendment also amends Sec.  2M5.2 to address cases in 
which the defendant possesses ammunition, either in an ammunition-only 
case or in a case involving ammunition and small arms. There appear to 
be disparities in how Sec.  2M5.2 is being applied in these cases. 
Under the proposed amendment, a defendant with ammunition would receive 
the alternative base offense level of 14 if the ammunition consisted of 
not more than [200]-[500] rounds of ammunition for small arms and was 
possessed solely for personal use.
    In addition, the proposed amendment provides factors for the court 
to consider in determining whether the small arms were possessed solely 
for personal use; these factors are similar to the factors used in 
Sec.  2K2.1 in determining whether the downward adjustment at Sec.  
2K2.1(b)(2) for ``lawful sporting purposes or collection'' applies. See 
Sec.  2K2.1, comment. (n.6).

References in Appendix A (Statutory Index)

    Finally, the proposed amendment amends Appendix A (Statutory Index) 
to address certain offenses.
    First, it amends Appendix A (Statutory Index) to expand the number 
of guidelines to which offenses under 50 U.S.C. 1705 are referenced. 
Section 1705 makes it unlawful to violate, attempt to violate, conspire 
to violate, or cause a violation of any license, order, regulation, or 
prohibition issued under the International Emergency Economic Powers 
Act (50 U.S.C. 1701 et seq.). Any person who willfully commits, 
willfully attempts or conspires to commit, or aids or abets in the 
commission of such an unlawful act may be imprisoned for not more than 
20 years. See 50 U.S.C. 1705(c). Appendix A (Statutory Index) currently 
contains two separate entries: The criminal offense, 50 U.S.C. 1705, is 
referenced to Sec.  2M5.3 (Providing Material Support or Resources to 
Designated Foreign Terrorist Organizations or Specially Designated 
Global Terrorists, or For a Terrorist Purpose), while another statute 
that contains no criminal offense, 50 U.S.C. 1701, is referenced to 
Sec.  2M5.3 as well as to Sec. Sec.  2M5.1 (Evasion of Export Controls; 
Financial Transactions with Countries Supporting International 
Terrorism) and 2M5.2 (Exportation of Arms, Munitions, or Military 
Equipment or Services Without Required Validated Export License). The 
proposed amendment revises the entry for 50 U.S.C. 1705 to include all 
three guidelines, Sec. Sec.  2M5.1, 2M5.2, and 2M5.3, and deletes as 
unnecessary the entry for 50 U.S.C. 1701. Conforming changes are made 
to the Statutory Provisions part of the commentary to each of 
Sec. Sec.  2M5.1, 2M5.2, and 2M5.3.
    Second, the proposed amendment addresses a new offense created by 
the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 
2010, Public Law 111-195. Section 103 of that Act (22 U.S.C. 8512) 
makes it unlawful to import into the United States certain goods or 
services of Iranian origin, or export to Iran certain goods, services, 
or technology, and provides that the penalties under 50 U.S.C. 1705 
apply to a violation. The proposed amendment amends Appendix A 
(Statutory Index) to reference the new offense at 22 U.S.C. 8512 to 
Sec. Sec.  2M5.1, 2M5.2, and 2M5.3.

Proposed Amendment

    The Commentary to Sec.  2M5.1 captioned ``Statutory Provisions'' is 
amended by inserting ``50 U.S.C. 1705;'' after ``2332d;''.
    Section 2M5.2(a)(2) is amended by inserting ``(A)'' before ``non-
fully''; and by striking ``ten'' and inserting ``[two]-[five], (B) 
ammunition for such small arms, and the number of rounds did not exceed 
[200]-[500], or (C) both, and all such small arms and ammunition were 
possessed solely for personal use''.
    The Commentary to Sec.  2M5.2 captioned ``Statutory Provisions'' is 
amended by inserting ``; 50 U.S.C. 1705'' after ``2780''.
    The Commentary to Sec.  2M5.2 captioned ``Application Notes'' is 
amended by redesignating Note 2 as Note 3; and by inserting after Note 
1 the following:
    ``2. For purposes of subsection (a)(2), whether small arms and 
ammunition were `possessed solely for personal use' is determined by 
the surrounding circumstances. Relevant surrounding circumstances 
include the amount and type of small arms and ammunition, the location 
and circumstances of possession and actual use, the nature of the 
defendant's criminal history (e.g., prior convictions for offenses 
involving firearms), the intended destination, and the extent to which 
possession was restricted by local law.''.
    The Commentary to Sec.  2M5.3 captioned ``Statutory Provisions'' is 
amended by striking ``Sec.  1701,''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 22 U.S.C. 4221 the following:
    ``22 U.S.C. 8512 2M5.1, 2M5.2, 2M5.3'';
    by striking the line referenced to 50 U.S.C. 1701;
    and in the line referenced to 50 U.S.C. 1705 by inserting ``2M5.1, 
2M5.2,'' before ``2M5.3''.

Issue for Comment

    1. The Commission is conducting a review of firearms offenses to 
determine whether changes to the primary firearms guideline, Sec.  
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) 
may be appropriate to address concerns about firearms crossing the 
border. Firearms that cross the border may be purchased away from the 
border by a so-called ``straw purchaser'', then delivered to a firearms 
trafficker and brought across the border. Concerns have been raised 
that Sec.  2K2.1 and Sec.  2M5.2 do not comprehensively address these 
activities and, in particular, that Sec.  2K2.1 does not adequately 
address (1) offenses involving firearms crossing the border and (2) 
offenses committed by ``straw purchasers''. The complexity and scope of 
the review is such that it likely could not be completed this year 
(i.e., during the amendment cycle ending May 1, 2011), but the 
Commission is considering what revisions, if any, to Sec.  2K2.1 and 
related guidelines may be appropriate this year.

Firearms Crossing the Border

    The crossing of an international border is not currently used as a 
factor in determining the offense level in Sec.  2K2.1. Instead, the 
crossing of a border is accounted for in the guidelines in Sec.  2M5.2, 
the guideline to which arms export offenses are referenced. Should the 
crossing of a border be incorporated as a factor in Sec.  2K2.1? If so, 
how? Are there aggravating or mitigating factors in

[[Page 3199]]

cases involving firearms crossing a border that the Commission should 
take into account in the guidelines? If so, what are the factors, and 
how should the Commission amend the guidelines to take them into 
account?
    In particular, should the Commission amend Sec.  2K2.1 to 
incorporate the crossing of a border as the basis for a new alternative 
base offense level, a new enhancement, a new upward departure 
provision, or a new cross-reference (e.g., to Sec.  2M5.2), or some 
combination of these? What should the amount of such a new alternative 
base offense level or enhancement be?
    One approach would be to provide a new enhancement in Sec.  2K2.1, 
such as the following:
    () If the defendant possessed any firearm or ammunition 
while crossing or attempting to cross the border or otherwise departing 
or attempting to depart the United States, or possessed or transferred 
any firearm or ammunition with knowledge, intent, or reason to believe 
that it would be transported out of the United States, increase by [2]-
[5] levels.
Should the Commission consider such an enhancement?
    Another approach would be to amend one or more of the existing 
provisions in Sec.  2K2.1 to provide higher penalties for cases 
involving the crossing of a border. In particular, Sec.  2K2.1 has a 4-
level enhancement at subsection (b)(5) that applies if the defendant 
engaged in the trafficking of firearms, and a 4-level enhancement (and 
minimum offense level of 18) at subsection (b)(6) that applies if the 
defendant used or possessed any firearm or ammunition in connection 
with another felony offense, or possessed or transferred any firearm or 
ammunition with knowledge, intent, or reason to believe that it would 
be used or possessed in connection with another felony offense. Should 
the Commission revise subsection (b)(5) or (b)(6), or both, to account 
for cases in which firearms cross the border? For example, should the 
Commission amend the commentary to Sec.  2K2.1 to specify that 
subsection (b)(5) always applies in a case involving one or more 
firearms crossing the border (e.g., a case in which the defendant 
transported a firearm across the border or transferred a firearm to 
another individual with knowledge or reason to believe that the firearm 
would be transported across the border)? Should the Commission amend 
subsection (b)(6) to raise the minimum offense level from 18 to 20?
    If the Commission were to provide a new provision in Sec.  2K2.1 to 
account for firearms crossing the border, how should that provision 
interact with the specific offense characteristics in subsections 
(b)(5) and (b)(6)? In particular, should all these provisions be 
cumulative, or should they interact in some other way?
    If the Commission were to make any such changes to Sec.  2K2.1, 
what conforming changes, if any, should the Commission make elsewhere 
in Sec.  2K2.1? What changes, if any, should the Commission make to 
related guidelines--in particular, to Sec.  2K1.3 and Sec.  2M5.2--to 
maintain proportionality?

Straw Purchasers

    Defendants who operate as straw purchasers may be convicted under 
any of several different statutes. One such statute is 18 U.S.C. 
922(d), which makes it unlawful to sell or otherwise dispose of any 
firearm or ammunition to any person knowing or having reasonable cause 
to believe that the person meets any of nine statutory criteria. See 18 
U.S.C. 922(d)(1)-(9). See also 18 U.S.C. 922(g), (n) (making it 
unlawful for a person meeting any of the same nine criteria to 
transport, possess, or receive a firearm or ammunition). Such a person 
is referred to in the guidelines as a ``prohibited person''. See Sec.  
2K2.1, comment. (n.3) (defining ``prohibited person'' as ``any person 
described in 18 U.S.C. 922(g) or 922(n)''). The nine criteria that make 
a person a ``prohibited person'' can be summarized as whether the 
person is a (1) felon, (2) fugitive, (3) substance abuser, (4) mental 
defective, (5) illegal alien, (6) person dishonorably discharged from 
the Armed Forces, (7) person who has renounced U.S. citizenship, (8) 
person under a restraining order not to engage in domestic violence, or 
(9) person convicted of a misdemeanor crime of domestic violence. See 
18 U.S.C. 922(d), (g), (n). A person convicted under section 922(d) is 
subject to imprisonment for not more than 10 years. See 18 U.S.C. 
924(a)(2).
    A second statute used for straw purchasers is 18 U.S.C. 922(a)(6), 
which makes it unlawful, in connection with the acquisition of or 
attempted acquisition of any firearm or ammunition from a licensed 
dealer, to knowingly make any false statement intended or likely to 
deceive the dealer with respect to the lawfulness of the transaction. A 
person convicted under section 922(a)(6) is subject to imprisonment for 
not more than 10 years. See 18 U.S.C. 924(a)(2).
    A third statute used for straw purchasers is 18 U.S.C. 
924(a)(1)(A), which makes it unlawful to knowingly make any false 
statement with respect to information required to be kept by a firearms 
licensee or information required in applying for a firearms license. A 
person convicted under section 924(a)(1)(A) is subject to imprisonment 
for not more than 5 years. See 18 U.S.C. 924(a)(1).
    All three of these statutes used for straw purchasers are 
referenced to Sec.  2K2.1. The guideline assigns a base offense level 
of 14 to cases involving prohibited persons, whether the defendant (A) 
is a prohibited person or (B) is convicted under section 922(d) of 
transferring to a prohibited person. See Sec.  2K2.1(a)(6)(A), (B). The 
guideline assigns a base offense level of 12 for most offenses, 
including convictions under sections 922(a)(6) and 924(a)(1)(A). See 
Sec.  2K2.1(a)(7). Higher base offense levels may apply based on the 
type of firearm involved or the defendant's criminal history.
    Are the guidelines adequate as they apply to straw purchasers? If 
not, what changes would be appropriate? Are there aggravating or 
mitigating factors in cases involving straw purchasers that the 
Commission should take into account in the guidelines? If so, what are 
the factors, and how should the Commission amend the guidelines to take 
them into account?
    Should the Commission provide higher penalties for cases involving 
straw purchasers? In particular, should the Commission raise by 2 
levels the alternative base offense levels applicable to defendants 
convicted of 18 U.S.C. 922(a)(6), 922(d), and 924(a)(1)(A)? Under such 
an approach, the alternative base offense level in Sec.  2K2.1(a)(6) 
would be raised from 14 to 16 (for cases in which the defendant is a 
prohibited person as well as cases in which the defendant is convicted 
under section 922(d) of transferring to a prohibited person). Also, a 
new alternative base offense level of 14 would be established for 
defendants convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A).
    As described above, a defendant convicted under section 922(d) 
receives a higher base offense level (14 vs. 12) than a defendant 
convicted under section 922(a)(6) or 924(a)(1)(A). How, if at all, 
should the Commission revise Sec.  2K2.1 to address a case in which a 
defendant convicted under section 922(a)(6) or 924(a)(1)(A) has engaged 
in the same conduct as a defendant convicted under section 922(d)? One 
approach would be to provide a new enhancement in Sec.  2K2.1, such as 
the following:
    () If the defendant is convicted under 18 U.S.C. 922(a)(6) 
or 924(a)(1)(A) and the defendant sold or otherwise disposed of any 
firearm or ammunition

[[Page 3200]]

to any person knowing or having reasonable cause to believe that the 
person was a prohibited person, increase by 2 levels.
Should the Commission consider such an enhancement?
    If the Commission were to make any such changes to Sec.  2K2.1, 
what conforming changes, if any, should the Commission make elsewhere 
in Sec.  2K2.1? What changes, if any, should the Commission make to 
related guidelines--in particular, to Sec.  2K1.3 and Sec.  2M5.2--to 
maintain proportionality?

Sec.  2M5.2

    In addition to the changes in the proposed amendment, are there any 
other aggravating or mitigating factors in cases involving firearms 
trafficking that the Commission should take into account in Sec.  
2M5.2? If so, what are the factors, and how should the Commission amend 
Sec.  2M5.2 to take them into account? In particular, should the 
Commission consider establishing in Sec.  2M5.2 a specific offense 
characteristic similar to the specific offense characteristic in Sec.  
2K2.1(b)(6), which provides a 4-level enhancement if the defendant used 
or possessed any firearm or ammunition in connection with another 
felony offense, or possessed or transferred any firearm or ammunition 
with knowledge, intent, or reason to believe that it would be used or 
possessed in connection with another felony offense?

3. Dodd-Frank Act

    Synopsis of Proposed Amendment: The Dodd-Frank Wall Street Reform 
and Protection Act, Public Law 111-203 (the ``Act''), contains two 
directives to the Commission and created certain new offenses.
    The proposed amendment responds to the directives in Part A and the 
new offenses in Part B, as follows:

(A) Directives

Issue for Comment

    1. The Act contained two directives to the Commission, one on 
securities fraud, the other on bank fraud and other frauds relating to 
financial institutions. Each directive requires the Commission to 
``review and, if appropriate, amend'' the guidelines and policy 
statements applicable to the offenses covered by the directive and 
consider whether the guidelines appropriately account for the potential 
and actual harm to the public and the financial markets from those 
offenses. Each directive also requires the Commission to ensure that 
the guidelines reflect (i) the serious nature of the offenses, (ii) the 
need for deterrence, punishment, and prevention, and (iii) the 
effectiveness of incarceration in furthering those objectives.

A. Directive on Securities Fraud

    Section 1079A(a)(1)(A) of the Act directs the Commission to 
``review and, if appropriate, amend'' the guidelines and policy 
statements applicable to ``persons convicted of offenses relating to 
securities fraud or any other similar provision of law, in order to 
reflect the intent of Congress that penalties for the offenses under 
the guidelines and policy statements appropriately account for the 
potential and actual harm to the public and the financial markets from 
the offenses.''
    Section 1079A(a)(1)(B) of the Act provides that, in promulgating 
any such amendment, the Commission shall--
    (i) Ensure that the guidelines and policy statements, particularly 
section 2B1.1(b)(14) and section 2B1.1(b)(17) (and any successors 
thereto), reflect--
    (I) The serious nature of the offenses described in subparagraph 
(A);
    (II) The need for an effective deterrent and appropriate punishment 
to prevent the offenses; and
    (III) The effectiveness of incarceration in furthering the 
objectives described in subclauses (I) and (II);
    (ii) Consider the extent to which the guidelines appropriately 
account for the potential and actual harm to the public and the 
financial markets resulting from the offenses;
    (iii) Ensure reasonable consistency with other relevant directives 
and guidelines and Federal statutes;
    (iv) Make any necessary conforming changes to guidelines; and
    (v) Ensure that the guidelines adequately meet the purposes of 
sentencing, as set forth in section 3553(a)(2) of title 18, United 
States Code.

B. Directive on Bank Frauds, Mortgage Frauds, and Other Frauds Relating 
to Financial Institutions

    Section 1079A(a)(2)(A) of the Act directs the Commission to 
``review and, if appropriate, amend'' the guidelines and policy 
statements applicable to ``persons convicted of fraud offenses relating 
to financial institutions or federally related mortgage loans and any 
other similar provisions of law, to reflect the intent of Congress that 
the penalties for the offenses under the guidelines and policy 
statements ensure appropriate terms of imprisonment for offenders 
involved in substantial bank frauds or other frauds relating to 
financial institutions.''
    Section 1079A(a)(2)(B) of the Act provides that, in promulgating 
any such amendment, the Commission shall--
    (i) Ensure that the guidelines and policy statements reflect--
    (I) The serious nature of the offenses described in subparagraph 
(A);
    (II) The need for an effective deterrent and appropriate punishment 
to prevent the offenses; and
    (III) The effectiveness of incarceration in furthering the 
objectives described in subclauses (I) and (II);
    (ii) Consider the extent to which the guidelines appropriately 
account for the potential and actual harm to the public and the 
financial markets resulting from the offenses;
    (iii) Ensure reasonable consistency with other relevant directives 
and guidelines and Federal statutes;
    (iv) Make any necessary conforming changes to guidelines; and
    (v) Ensure that the guidelines adequately meet the purposes of 
sentencing, as set forth in section 3553(a)(2) of title 18, United 
States Code.

C. Prior Commission Work

    In conducting the reviews required by the directives, the 
Commission is also studying its prior work in these areas. In 2001, for 
example, after a multi-year review of economic crimes, the Commission 
promulgated its ``Economic Crime Package,'' a six-part amendment to the 
guidelines applicable to economic crimes. See USSG App. C, Amendment 
617 (effective November 1, 2001). Among other things, the Economic 
Crime Package consolidated the theft and fraud guidelines into a single 
guideline, Sec.  2B1.1 (Theft, Property Destruction, and Fraud); 
provided a 2-level enhancement for offenses involving 10 to 49 victims 
and a 4-level enhancement for offenses involving 50 or more victims; 
revised the definition of ``loss''; and revised and expanded the loss 
table to account for higher loss amounts and ``provide substantial 
increases in penalties for moderate and higher loss amounts.'' See id. 
(Reason for Amendment).
    In 2003, the Commission implemented directives relating to fraud 
offenses, obstruction of justice offenses, and other economic crimes in 
the Sarbanes-Oxley Act of 2002, Public Law 107-204. The directives 
required the Commission to promulgate, under emergency amendment 
authority, amendments addressing fraud offenses committed by officers 
and directors of publicly traded companies; fraud offenses that 
endanger the solvency or financial security of a substantial number of 
victims; fraud offenses that

[[Page 3201]]

involve significantly greater than 50 victims; and obstruction of 
justice offenses that involve destruction of evidence. The Commission 
first promulgated a temporary, emergency amendment and then an 
expanded, permanent amendment. See USSG App. C, Amendments 647 
(effective January 25, 2003) and 653 (effective November 1, 2003). 
Among other things, the Commission provided a higher alternative base 
offense level of level 7 if the defendant was convicted of an offense 
referenced to Sec.  2B1.1 and the offense carried a statutory maximum 
term of imprisonment of 20 years or more; expanded the loss table to 
add enhancements of 28 and 30 levels for losses of more than $200 
million and $400 million, respectively; added the reduction in value of 
equity securities or other corporate assets as a factor to be 
considered in determining loss; expanded the victims table to include a 
6-level enhancement for offenses involving 250 or more victims; 
expanded the specific offense characteristic on financially endangering 
a financial institution to also apply when the offense financially 
endangered either a substantial number of victims or an organization 
that is publicly traded or has more than 1,000 employees; and added a 
4-level enhancement if the offense involved a violation of securities 
law or commodities law and the defendant was in certain specified 
positions of heightened responsibility (e.g., a corporate officer or 
director; a registered broker or dealer; an investment adviser; an 
officer of director of a futures commission merchant; a commodities 
trading advisor; a commodity pool operator). See id.
    In reviewing the guidelines and offenses covered by the directives, 
the Commission has observed that cases sentenced under Sec.  2B1.1 
involving relatively large loss amounts calculated under the loss table 
in subsection (b)(1) have a relatively high rate of non-government-
sponsored, below-range sentences. The Commission also has received 
public comment and reviewed judicial opinions suggesting that a more 
comprehensive review of Sec.  2B1.1 may be appropriate.

D. Possible Multi-Year Review

    In light of this information, the Commission is considering 
conducting a more comprehensive review of Sec.  2B1.1 and related 
guidelines, not only of the specific offense characteristics referred 
to in the directives (Sec.  2B1.1(b)(14) and (17)), but also of certain 
other aspects of the guidelines (e.g., the loss table and the 
definition of loss; the victims table and the definition of victim; and 
the interactions between these tables and definitions). Given the 
complexity and scope of such a review, the Commission anticipates that 
such a review could not be completed in the amendment cycle ending May 
1, 2011.

E. Response to Directives

    Given that such a review likely could not be completed this year 
(i.e., during the amendment cycle ending May 1, 2011), should the 
Commission respond to the directives this year? If so, what, if any, 
specific changes to the guidelines should be made this year to respond 
to the directives in the Act?
1. Directive on Securities Fraud
    The Commission requests comment regarding whether the Guidelines 
Manual provides penalties for these offenses that appropriately account 
for the potential and actual harm to the public and the financial 
markets from these offenses and, if not, what changes to the Guidelines 
Manual would be appropriate to respond to the directive in section 
1079A(a)(1) of the Act.
    Securities fraud is prosecuted under 18 U.S.C. 1348 (Securities and 
commodities fraud), which makes it unlawful to knowingly execute, or 
attempt to execute, a scheme or artifice (1) to defraud any person in 
connection with a security or (2) to obtain, by means of false or 
fraudulent pretenses, representations, or promises, any money or 
property in connection with the purchase or sale of a security. The 
statutory maximum term of imprisonment for an offense under section 
1348 is 25 years. Offenses under section 1348 are referenced in 
Appendix A (Statutory Index) to Sec.  2B1.1.
    Securities fraud is also prosecuted under 18 U.S.C. 1350 (Failure 
of corporate officers to certify financial reports), violations of the 
provisions of law referred to in 15 U.S.C. 78c(a)(47), and violations 
of the rules, regulations, and orders issued by the Securities and 
Exchange Commission pursuant to those provisions of law. See Sec.  
2B1.1, comment. (n.14(A)). In addition, there are cases in which the 
defendant committed a securities law violation but is prosecuted under 
a general fraud statute. In general, these offenses are likewise 
referenced to Sec.  2B1.1.
    Some of the more pertinent provisions in Sec.  2B1.1 addressing 
these offenses are as follows:
    (1) Section 2B1.1(a)(1) provides an alternative base offense level 
of 7 (rather than 6) if the offense of conviction has a statutory 
maximum term of imprisonment of 20 years or more.
    (2) Section 2B1.1(b)(1) provides an enhancement of up to 30 levels 
based on the amount of loss.
    (3) Section 2B1.1(b)(2) provides an enhancement of up to 6 levels 
if the offense involved 10 or more victims or was committed through 
mass-marketing.
    (4) Section 2B1.1(b)(14) provides an enhancement of either (A) 2 
levels, if the defendant derived more than $1,000,000 in gross receipts 
from one or more financial institutions, or (B) 4 levels, if the 
offense (i) substantially jeopardized the safety and soundness of a 
financial institution, (ii) substantially endangered the solvency or 
financial security of an organization that (I) was a publicly traded 
company or (II) had 1,000 or more employees, or (iii) substantially 
endangered the solvency or financial security of 100 or more victims. 
Subsection (b)(14)(C) provides that the cumulative adjustments from 
(b)(2) and (b)(14)(B) shall not exceed 8 levels, except as provided in 
subdivision (D). Subdivision (D) provides a minimum offense level of 
level 24, if either (A) or (B) applies.
    (5) Section 2B1.1(b)(17) provides an enhancement of 4 levels if the 
offense involved a violation of securities law and the defendant was an 
officer or director of a publicly traded company, a registered broker 
or dealer (or person associated with a broker or dealer), or an 
investment adviser (or person associated with an investment adviser). 
Similarly, this enhancement also applies if the offense involved a 
violation of commodities law and the defendant was an officer or 
director of a futures commission merchant or an introducing broker, a 
commodities trading advisor, or a commodity pool operator. A conviction 
under a securities law or commodities law is not required for 
subsection (b)(17) to apply. See Sec.  2B1.1, comment. (n.14(B)).
    Are offenses relating to securities fraud adequately addressed by 
these provisions? If not, how should the Commission amend the 
Guidelines Manual to account for ``the potential and actual harm to the 
public and the financial markets'' from these offenses? Should the 
Commission increase the amount, or the scope, of the alternative base 
offense level, the enhancements, or the minimum offense level, or any 
combination of those? If so, what should the new amount or scope of 
such provisions be?
    Should the Commission amend the Commentary to the Guidelines Manual 
to provide new departure provisions, or revise the scope of existing 
departure provisions, applicable to such offenses? For example, should 
the Commission specify that an upward departure would

[[Page 3202]]

be warranted in a case involving securities fraud or any similar 
offense, if the disruption to a financial market is so substantial as 
to have a debilitating impact on that market?
    Similarly, should the Commission amend the Commentary to the 
Guidelines Manual to provide additional guidance for such offenses? For 
example, Application Note 12 to Sec.  2B1.1 lists factors to be 
considered in determining whether to apply the enhancement in 
subsection (b)(14) for jeopardizing a financial institution or 
organization. Currently, the court is directed to consider whether the 
financial institution or organization suffered one or more listed harms 
as a result of the offense, such as becoming insolvent. Should the 
Commission direct the court to consider any other factors, such as 
whether one of the listed harms was likely to result from the offense 
but did not result from the offense because of Federal Government 
intervention?
2. Directive on Bank Frauds, Mortgage Frauds, and Other Frauds Relating 
to Financial Institutions
    The Commission requests comment regarding whether the Guidelines 
Manual provides penalties for these offenses that appropriately account 
for the potential and actual harm to the public and the financial 
markets from these offenses and ensure appropriate terms of 
imprisonment for offenders involved in substantial bank frauds or other 
frauds relating to financial institutions and, if not, what changes to 
the Guidelines Manual would be appropriate to respond to section 
1079A(a)(2) of the Act.
    The most specific statute on bank fraud is 18 U.S.C. 1344 (Bank 
fraud), which makes it unlawful to knowingly execute a scheme or 
artifice (1) to defraud a financial institution or (2) to obtain any of 
the property of a financial institution by means of false or fraudulent 
pretenses, representations, or promises. The statutory maximum term of 
imprisonment for an offense under section 1344 is 30 years. Offenses 
under section 1344 are referenced in Appendix A (Statutory Index) to 
Sec.  2B1.1. Other statutes relating to financial institution fraud or 
mortgage fraud include 18 U.S.C. 215, 656, 657, 1005, 1006, 1010, 1014, 
1029, and 1033.
    Some of the more pertinent provisions in Sec.  2B1.1 addressing 
these offenses are as follows:
    (1) Section 2B1.1(a)(1) provides an alternative base offense level 
of 7 (rather than 6) if the offense of conviction has a statutory 
maximum term of imprisonment of 20 years or more.
    (2) Section 2B1.1(b)(1) provides an enhancement of up to 30 levels 
based on the amount of loss.
    (3) Section 2B1.1(b)(2) provides an enhancement of up to 6 levels 
if the offense involved 10 or more victims or was committed through 
mass-marketing.
    (4) Section 2B1.1(b)(14) provides an enhancement of either (A) 2 
levels, if the defendant derived more than $1,000,000 in gross receipts 
from one or more financial institutions, or (B) 4 levels, if the 
offense (i) substantially jeopardized the safety and soundness of a 
financial institution, (ii) substantially endangered the solvency or 
financial security of an organization that (I) was a publicly traded 
company or (II) had 1,000 or more employees, or (iii) substantially 
endangered the solvency or financial security of 100 or more victims. 
Subsection (b)(14)(C) provides that the cumulative adjustments from 
(b)(2) and (b)(14)(B) shall not exceed 8 levels, except as pr