Sentencing Guidelines for United States Courts, 51110-51113 [2012-20786]
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Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Notices
to the (2) Treasury PRA Clearance
Officer, 1750 Pennsylvania Ave. NW.,
Suite 8140, Washington, DC 20220, or
email at PRA@treasury.gov.
FOR FURTHER INFORMATION CONTACT:
Copies of the submission(s) may be
obtained by calling (202) 927–5331,
email at PRA@treasury.gov, or the entire
information collection request maybe
found at www.reginfo.gov.
Financial Crimes Enforcement Network
(FinCEN)
OMB Number: 1506–0022.
Type of Review: Revision of a
currently approved collection.
Title: Customer Identification
Programs for Futures Commission
Merchants and Introducing Brokers.
Abstract: Futures commission
merchants and introducing brokers are
required to develop and maintain a
customer identification program. A copy
of the program must be maintained for
five years. See 31 CFR 1026.100 and 31
CFR 1026.220.
Affected Public: Private Sector:
Businesses or other for-profits.
Estimated Total Burden Hours:
20,478.
Dawn D. Wolfgang,
Treasury PRA Clearance Officer.
[FR Doc. 2012–20746 Filed 8–22–12; 8:45 am]
BILLING CODE 4810–02–P
DEPARTMENT OF THE TREASURY
Submission for OMB Review;
Comment Request
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August 20, 2012.
The Department of the Treasury will
submit the following information
collection request to the Office of
Management and Budget (OMB) for
review and clearance in accordance
with the Paperwork Reduction Act of
1995, Public Law 104–13, on or after the
date of publication of this notice.
DATES: Comments should be received on
or before September 24, 2012 to be
assured of consideration.
ADDRESSES: Send comments regarding
the burden estimate, or any other aspect
of the information collection, including
suggestion for reducing the burden, to
the (1) Office of Information and
Regulatory Affairs, Office of
Management and Budget, Attention:
Desk Officer for Treasury, New
Executive Office Building, Room 10235,
Washington, DC 20503, or email at
OIRA_Submission@OMB.EOP.GOV and
to the (2) Treasury PRA Clearance
Officer, 1750 Pennsylvania Ave. NW.,
Suite 8140, Washington, DC 20220, or
email at PRA@treasury.gov.
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FOR FURTHER INFORMATION CONTACT:
Copies of the submission(s) may be
obtained by calling (202) 927–5331,
email at PRA@treasury.gov, or the entire
information collection request maybe
found at www.reginfo.gov.
Alcohol and Tobacco Tax and Trade
Bureau (TTB)
OMB Number: 1513–0087.
Type of Review: Extension without
change of a currently approved
collection.
Title: Labeling and Advertising
Requirements Under the Federal
Alcohol Administration Act.
Abstract: Bottlers and importers of
alcohol beverages must adhere to
numerous performance standards for
statements made on labels and in
advertisements of alcohol beverages.
These performance standards include
minimum mandatory labeling and
advertising statements.
Affected Public: Private Sector:
Businesses or other for-profits.
Estimated Total Burden Hours: 7,071.
OMB Number: 1513–0114.
Type of Review: Extension without
change of a currently approved
collection.
Title: Beer for Exportation.
Form: TTB F 5130.12.
Abstract: Unpaid beer may be
removed from a brewery for exportation
without payment of the excise tax
normally due on removal. In order to
ensure that exportation took place as
claimed and that untaxpaid beer does
not reach the domestic market TTB
requires certification on Form 5130.12.
Affected Public: Private Sector:
Businesses or other for-profits.
Estimated Total Burden Hours: 5,940.
OMB Number: 1513–0115.
Type of Review: Extension without
change of a currently approved
collection.
Title: Usual and Customary Business
Records Relating to Wine TTB REC
5120/1.
Abstract: TTB routinely inspects
wineries’ usual and customary business
records to ensure the proper payment of
wine excise taxes due to the Federal
government.
Affected Public: Private Sector:
Businesses or other for-profits.
Estimated Total Burden Hours: 468.
OMB Number: 1513–0116.
Type of Review: Extension without
change of a currently approved
collection.
Title: Bond for Drawback Under 26
U.S.C. 5131.
Form: TTB F 5154.3.
Abstract: Business that use taxpaid
alcohol to manufacture nonbeverage
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products may file a claim for drawback
(refund or remittance). Claims may be
filed monthly or quarterly. Monthly
claimants must file a bond on TTB F
5154.3 to protect the Government’s
interest.
Affected Public: Private Sector:
Businesses or other for-profits.
Estimated Total Burden Hours: 10.
OMB Number: 1513–0121.
Type of Review: Extension without
change of a currently approved
collection.
Title: Labeling of Major Food
Allergens.
Abstract: The collection of
information involves voluntary labeling
of major food allergens used in the
production of alcohol beverages and
also involves petitions for exemption
from full allergen labeling. The
collection corresponds to the
amendments to the FD&C Act in Title II
of Public Law 108–282, 118 Stat. 905.
Affected Public: Private Sector:
Businesses or other for-profits.
Estimated Total Burden Hours: 730.
Dawn D. Wolfgang,
Treasury PRA Clearance Officer.
[FR Doc. 2012–20747 Filed 8–22–12; 8:45 am]
BILLING CODE 4810–31–P
UNITED STATES SENTENCING
COMMISSION
Sentencing Guidelines for United
States Courts
United States Sentencing
Commission.
ACTION: Notice of final action regarding
technical and conforming amendments
to federal sentencing guidelines
effective November 1, 2012.
AGENCY:
On April 30, 2012, the
Commission submitted to the Congress
amendments to the sentencing
guidelines and official commentary,
which become effective on November 1,
2012, unless Congress acts to the
contrary. Such amendments and the
reasons for amendment subsequently
were published in the Federal Register.
77 FR 28225 (May 11, 2012). The
Commission has made technical and
conforming amendments, set forth in
this notice, to commentary provisions
and policy statements related to those
amendments.
DATES: The Commission has specified
an effective date of November 1, 2012,
for the amendments set forth in this
notice.
FOR FURTHER INFORMATION CONTACT:
Jeanne Doherty, Public Affairs Officer,
(202) 502–4502.
SUMMARY:
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Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Notices
The
United States Sentencing Commission,
an independent commission in the
judicial branch of the United States
government, is authorized by 28 U.S.C.
994(a) to promulgate sentencing
guidelines and policy statements for
federal courts. Section 994 also directs
the Commission to review and revise
periodically promulgated guidelines
and authorizes it to submit guideline
amendments to Congress not later than
the first day of May each year. See 28
U.S.C. 994(o), (p). Absent an affirmative
disapproval by Congress within 180
days after the Commission submits its
amendments, the amendments become
effective on the date specified by the
Commission (typically November 1 of
the same calendar year). See 28 U.S.C.
994(p).
Unlike amendments made to
sentencing guidelines, amendments to
commentary and policy statements may
be made at any time and are not subject
to congressional review. To the extent
practicable, the Commission endeavors
to include amendments to commentary
and policy statements in any
submission of guideline amendments to
Congress. Occasionally, however, the
Commission determines that technical
SUPPLEMENTARY INFORMATION:
and conforming changes to commentary
and policy statements are necessary.
This notice sets forth technical and
conforming amendments to commentary
and policy statements that will become
effective on November 1, 2012.
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18(B)
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26(A)
26(B)
26(C);
Patti B. Saris,
Chair.
1. Amendment:
The Commentary to § 1B1.10
captioned ‘‘Application Notes’’ is
amended in Note 4 by striking
‘‘Application Note 10 to § 2D1.1’’ and
inserting ‘‘the Drug Equivalency Tables
in the Commentary to § 2D1.1 (see
§ 2D1.1, comment. (n.8))’’.
The Commentary to § 2D1.1 captioned
‘‘Application Notes’’ is amended by
renumbering Notes 1 through 29
according to the following table:
Before amendment
After amendment
1
17
13
2
12
5
6
1
2
3
4
5
6
7
and by rearranging those Notes, as so
renumbered, to place them in proper
numerical order.
The Commentary to § 2D1.1 captioned
‘‘Application Notes’’, as so renumbered
and rearranged, is further amended by
inserting headings at the beginning of
certain notes, as follows (with Notes
referred to by their new numbers):
Heading to be inserted at the beginning
1 ...............................................................
2 ...............................................................
3 ...............................................................
4 ...............................................................
5 ...............................................................
7 ...............................................................
9 ...............................................................
10 .............................................................
12 .............................................................
18 .............................................................
23 .............................................................
25 .............................................................
26 .............................................................
26(A) ........................................................
26(B) ........................................................
26(C) ........................................................
‘‘Mixture or Substance’’.—
‘‘Plant’’.—
Classification of Controlled Substances.—
Applicability to ‘‘Counterfeit’’ Substances.—
Determining Drug Types and Drug Quantities.—
Multiple Transactions or Multiple Drug Types.—
Determining Quantity Based on Doses, Pills, or Capsules.—
Determining Quantity of LSD.—
Application of Subsection (b)(5).—
Application of Subsection (b)(13).—
Cases Involving Mandatory Minimum Penalties.—
Cases Involving ‘‘Small Amount of Marihuana for No Remuneration’’.—
Departure Considerations.—
Downward Departure Based on Drug Quantity in Certain Reverse Sting Operations.—
Upward Departure Based on Drug Quantity.—
Upward Departure Based on Unusually High Purity.—
The Commentary to § 2D1.1 captioned
‘‘Application Notes’’, as so renumbered
and rearranged and amended, is further
amended as follows (with Notes referred
to by their new numbers):
In Note 8(A) by striking ‘‘Note 5’’ and
inserting ‘‘Note 6’’;
In Note 15 by redesignating (i), (ii),
and (iii) as (A), (B), and (C),
respectively;
In Note 18(A) by inserting before the
period at the end of the heading the
following: ‘‘(Subsection (b)(13)(A))’’;
and
In Note 18(B) by inserting before the
period at the end of the heading the
following: ‘‘(Subsection
16:59 Aug 22, 2012
After amendment
Authority: USSC Rules of Practice and
Procedure 4.1.
Note
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(b)(13)(C)B(D))’’, by redesignating its
component subdivision (A) (beginning
‘‘Factors to Consider’’) as (i), and that
subdivision’s component subdivisions
(i) through (iv) as (I) through (IV),
respectively, and by redesignating its
component subdivision (B) (beginning
‘‘Definitions’’) as (ii).
The Commentary to § 2D1.1 captioned
‘‘Background’’ is amended by striking
the fifth through eighth undesignated
paragraphs as follows:
‘‘The last sentence of subsection (a)(5)
implements the directive to the
Commission in section 7(1) of Public
Law 111–220.
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Subsection (b)(2) implements the
directive to the Commission in section
5 of Public Law 111–220.
Subsection (b)(3) is derived from
Section 6453 of the Anti-Drug Abuse
Act of 1988.
Frequently, a term of supervised
release to follow imprisonment is
required by statute for offenses covered
by this guideline. Guidelines for the
imposition, duration, and conditions of
supervised release are set forth in
Chapter Five, Part D (Supervised
Release).’’;
In the paragraph beginning ‘‘The
dosage weight’’ by striking ‘‘111 S.Ct.
1919’’ and inserting ‘‘500 U.S. 453’’; and
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By inserting before the paragraph
beginning ‘‘Subsection (b)(11)’’ the
following:
‘‘Frequently, a term of supervised
release to follow imprisonment is
required by statute for offenses covered
by this guideline. Guidelines for the
imposition, duration, and conditions of
supervised release are set forth in
Chapter Five, Part D (Supervised
Release).
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.
Subsection (b)(3) is derived from
Section 6453 of the Anti-Drug Abuse
Act of 1988.’’.
The Commentary to § 2D1.6 captioned
‘‘Application Note’’ is amended in Note
1 by striking ‘‘Note 12’’ and inserting
‘‘Note 5’’.
The Commentary to § 2D1.11
captioned ‘‘Application Notes’’, as
amended by Amendment 3 of the
amendments submitted to Congress on
April 30, 2012, is further amended by
renumbering Notes 1 through 9
according to the following table:
Before amendment
After amendment
4
1
5
1
2
3
Note
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2
3
4
8
9
6
7
8
9
2
3
4
5
6
7
8
9;
and by rearranging those Notes, as so
renumbered, to place them in proper
numerical order.
The Commentary to § 2D1.11
captioned ‘‘Application Notes’’, as so
renumbered and rearranged, is further
amended by inserting headings at the
beginning of certain notes, as follows
(with Notes referred to by their new
numbers):
Application of Subsection (b)(1).—
Application of Subsection (b)(2).—
Application of Subsection (b)(3).—
Application of Subsection (c)(1).—
Offenses Involving Immediate Precursors or Other Controlled Substances Covered Under § 2D1.1.—
The Commentary to § 2D1.11
captioned ‘‘Application Notes’’, as so
renumbered and rearranged and
amended, is further amended in Note 9
(as so renumbered) by striking ‘‘Note
12’’ and inserting ‘‘Note 5’’.
The Commentary to § 5G1.2 captioned
‘‘Application Notes’’, as amended by
Note 7 of the amendments submitted to
Congress on April 30, 2012, is further
amended by amending Note 1 to read as
follows:
‘‘1. In General.—This section specifies
the procedure for determining the
specific sentence to be formally
imposed on each count in a multiplecount case. The combined length of the
sentences (‘total punishment’) is
determined by the court after
determining the adjusted combined
offense level and the Criminal History
Category and determining the
defendant’s guideline range on the
Sentencing Table in Chapter Five, Part
A (Sentencing Table).
Note that the defendant’s guideline
range on the Sentencing Table may be
affected or restricted by a statutorily
authorized maximum sentence or a
statutorily required minimum sentence
not only in a single-count case, see
§ 5G1.1 (Sentencing on a Single Count
of Conviction), but also in a multiplecount case. See Note 3, below.
Except as otherwise required by
subsection (e) or any other law, the total
punishment is to be imposed on each
count and the sentences on all counts
are to be imposed to run concurrently to
the extent allowed by the statutory
16:59 Aug 22, 2012
After amendment
Heading to be inserted at the beginning
...............................................................
...............................................................
...............................................................
...............................................................
...............................................................
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Before amendment
Jkt 226001
maximum sentence of imprisonment for
each count of conviction.
This section applies to multiple
counts of conviction (A) contained in
the same indictment or information, or
(B) contained in different indictments or
informations for which sentences are to
be imposed at the same time or in a
consolidated proceeding.
Usually, at least one of the counts will
have a statutory maximum adequate to
permit imposition of the total
punishment as the sentence on that
count. The sentence on each of the other
counts will then be set at the lesser of
the total punishment and the applicable
statutory maximum, and be made to run
concurrently with all or part of the
longest sentence. If no count carries an
adequate statutory maximum,
consecutive sentences are to be imposed
to the extent necessary to achieve the
total punishment.’’.
Section 5K2.0 is amended in
subsection (d)(1) by striking ‘‘the last
sentence of 5K2.12 (Coercion and
Duress), and 5K2.19 (Post-Sentencing
Rehabilitative Efforts)’’ and inserting
‘‘and the last sentence of 5K2.12
(Coercion and Duress)’’.
Reason for Amendment:
This proposed amendment makes
certain technical and conforming
changes to commentary in the
Guidelines Manual.
First, it reorganizes the commentary
to the drug trafficking guideline, § 2D1.1
(Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including
Possession with Intent to Commit These
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Offenses); Attempt or Conspiracy), so
that the order of the application notes
better reflects the order of the guidelines
provisions to which they relate. The
proposed amendment also makes
stylistic changes to the Commentary to
§ 2D1.1, such as by adding headings to
certain application notes. To reflect the
renumbering of application notes in
§ 2D1.1, conforming changes are also
made to the Commentary to § 1B1.10
and § 2D1.6.
Second, it makes certain clerical and
stylistic changes in connection with
certain recently promulgated
amendments. See 77 FR 28226 (May 11,
2012). The clerical and stylistic changes
are as follows:
(1) Amendment 3 made revisions to
§ 2D1.11 (Unlawfully Distributing,
Importing, Exporting or Possessing a
Listed Chemical; Attempt or
Conspiracy). This proposed amendment
reorganizes the commentary to § 2D1.11
so that the order of the application notes
better reflects the order of the guidelines
provisions to which they relate. The
proposed amendment also makes
stylistic changes to the Commentary to
§ 2D1.11 by adding headings to certain
application notes.
(2) Amendment 7 made revisions to
§ 5G1.2 (Sentencing on Multiple Counts
of Conviction), including a revision to
Application Note 1. However, the
amendatory instructions published in
the Federal Register to implement those
revisions included an erroneous
instruction. This proposed amendment
restates Application Note 1 in its
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Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Notices
entirety to ensure that it conforms with
the version of Application Note 1 that
appears in the unofficial, ‘‘readerfriendly’’ version of Amendment 7 that
the Commission made available in May
2012.
(3) Amendment 8 repealed the policy
statement at § 5K2.19 (Post-Sentencing
Rehabilitative Efforts). However, a
reference to that policy statement is
contained in § 5K2.0 (Grounds for
Departure). This proposed amendment
revises § 5K2.0 to reflect the repeal of
§ 5K2.19.
[FR Doc. 2012–20786 Filed 8–22–12; 8:45 am]
BILLING CODE 2211–40–P
UNITED STATES SENTENCING
COMMISSION
Sentencing Guidelines for United
States Courts
United States Sentencing
Commission.
ACTION: Notice of final priorities.
AGENCY:
In May 2012, the Commission
published a notice of possible policy
priorities for the amendment cycle
ending May 1, 2013. See 77 FR 31069
(May 24, 2012). After reviewing public
comment received pursuant to the
notice of proposed priorities, the
Commission has identified its policy
priorities for the upcoming amendment
cycle and hereby gives notice of these
policy priorities.
FOR FURTHER INFORMATION CONTACT:
Jeanne Doherty, Public Affairs Officer,
202–502–4502.
SUPPLEMENTARY INFORMATION: The
United States Sentencing Commission is
an independent agency in the judicial
branch of the United States
Government. The Commission
promulgates sentencing guidelines and
policy statements for federal sentencing
courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews
and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o)
and submits guideline amendments to
the Congress not later than the first day
of May each year pursuant to 28 U.S.C.
994(p).
As part of its statutory authority and
responsibility to analyze sentencing
issues, including operation of the
federal sentencing guidelines, the
Commission has identified its policy
priorities for the amendment cycle
ending May 1, 2013. The Commission
recognizes, however, that other factors,
such as the enactment of any legislation
requiring Commission action, may affect
the Commission’s ability to complete
work on any or all of its identified
tkelley on DSK3SPTVN1PROD with NOTICES
SUMMARY:
VerDate Mar<15>2010
16:59 Aug 22, 2012
Jkt 226001
priorities by the statutory deadline of
May 1, 2013. Accordingly, it may be
necessary to continue work on any or all
of these issues beyond the amendment
cycle ending on May 1, 2013.
As so prefaced, the Commission has
identified the following priorities:
(1) Continuation of its work with
Congress and other interested parties on
statutory mandatory minimum penalties
to implement the recommendations set
forth in the Commission’s 2011 report to
Congress, titled Mandatory Minimum
Penalties in the Federal Criminal Justice
System, and to develop appropriate
guideline amendments in response to
any related legislation.
(2) Continuation of its work with the
congressional, executive, and judicial
branches of government, and other
interested parties, to study the manner
in which United States v. Booker, 543
U.S. 220 (2005), and subsequent
Supreme Court decisions have affected
federal sentencing practices, the
appellate review of those practices, and
the role of the federal sentencing
guidelines. The Commission anticipates
that it will issue a report with respect
to its findings, possibly including (A) an
evaluation of the impact of those
decisions on the federal sentencing
guideline system; (B) recommendations
for legislation regarding federal
sentencing policy; (C) an evaluation of
the appellate standard of review
applicable to post-Booker federal
sentencing decisions; and (D) possible
consideration of amendments to the
federal sentencing guidelines. The
Commission also intends to work with
the judicial branch and other interested
parties to develop enhanced methods
for collecting and disseminating
information and data about the use of
variances and the specific reasons for
imposition of such sentences under 18
U.S.C. 3553(a).
(3) Continuation of its review of child
pornography offenses and report to
Congress as a result of such review. It
is anticipated that any such report
would include (A) a review of the
incidence of, and reasons for, departures
and variances from the guideline
sentence; (B) a compilation of studies
on, and analysis of, recidivism by child
pornography offenders; and (C) possible
recommendations to Congress on any
statutory and/or guideline changes that
may be appropriate.
(4) Continuation of its work on
economic crimes, including (A) a
comprehensive, multi-year study of
§ 2B1.1 (Theft, Property Destruction,
and Fraud) and related guidelines,
including examination of the loss table
and the definition of loss, and (B)
consideration of any amendments to
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51113
such guidelines that may be appropriate
in light of the information obtained from
such study.
(5) Continuation of its multi-year
study of the statutory and guideline
definitions of ‘‘crime of violence’’,
‘‘aggravated felony’’, ‘‘violent felony’’,
and ‘‘drug trafficking offense’’, possibly
including recommendations to Congress
on any statutory changes that may be
appropriate and development of
guideline amendments that may be
appropriate in response to any related
legislation.
(6) Undertaking a comprehensive,
multi-year study of recidivism,
including (A) examination of
circumstances that correlate with
increased or reduced recidivism; (B)
possible development of
recommendations for using information
obtained from such study to reduce
costs of incarceration and overcapacity
of prisons; and (C) consideration of any
amendments to the Guidelines Manual
that may be appropriate in light of the
information obtained from such study.
(7) Resolution of circuit conflicts,
pursuant to the Commission’s
continuing authority and responsibility,
under 28 U.S.C. 991(b)(1)(B) and
Braxton v. United States, 500 U.S. 344
(1991), to resolve conflicting
interpretations of the guidelines by the
federal courts.
(8) Implementation of the Food and
Drug Administration Safety and
Innovation Act, Public Law 112–144,
and any other crime legislation enacted
during the 111th or 112th Congress
warranting a Commission response.
(9) Consideration of (A) whether any
amendments to the Guidelines Manual
may be appropriate in light of Setser v.
United States, 132 S. Ct. 1463, __ U.S.
__ (March 28, 2012); and
(B) any miscellaneous guideline
application issues coming to the
Commission’s attention from case law
and other sources.
Authority: 28 U.S.C. 994(a), (o); USSC
Rules of Practice and Procedure 5.2.
Patti B. Saris,
Chair.
[FR Doc. 2012–20791 Filed 8–22–12; 8:45 am]
BILLING CODE 2211–40–P
DEPARTMENT OF VETERANS
AFFAIRS
Letter of Intent To Apply for Funding
Available Under the Supportive
Services for Veteran Families Program
Department of Veterans Affairs.
Notice; Letter of Intent.
AGENCY:
ACTION:
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]]>Agencies
[Federal Register Volume 77, Number 164 (Thursday, August 23, 2012)]
[Notices]
[Pages 51110-51113]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20786]
=======================================================================
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of final action regarding technical and conforming
amendments to federal sentencing guidelines effective November 1, 2012.
-----------------------------------------------------------------------
SUMMARY: On April 30, 2012, the Commission submitted to the Congress
amendments to the sentencing guidelines and official commentary, which
become effective on November 1, 2012, unless Congress acts to the
contrary. Such amendments and the reasons for amendment subsequently
were published in the Federal Register. 77 FR 28225 (May 11, 2012). The
Commission has made technical and conforming amendments, set forth in
this notice, to commentary provisions and policy statements related to
those amendments.
DATES: The Commission has specified an effective date of November 1,
2012, for the amendments set forth in this notice.
FOR FURTHER INFORMATION CONTACT: Jeanne Doherty, Public Affairs
Officer, (202) 502-4502.
[[Page 51111]]
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission, an
independent commission in the judicial branch of the United States
government, is authorized by 28 U.S.C. 994(a) to promulgate sentencing
guidelines and policy statements for federal courts. Section 994 also
directs the Commission to review and revise periodically promulgated
guidelines and authorizes it to submit guideline amendments to Congress
not later than the first day of May each year. See 28 U.S.C. 994(o),
(p). Absent an affirmative disapproval by Congress within 180 days
after the Commission submits its amendments, the amendments become
effective on the date specified by the Commission (typically November 1
of the same calendar year). See 28 U.S.C. 994(p).
Unlike amendments made to sentencing guidelines, amendments to
commentary and policy statements may be made at any time and are not
subject to congressional review. To the extent practicable, the
Commission endeavors to include amendments to commentary and policy
statements in any submission of guideline amendments to Congress.
Occasionally, however, the Commission determines that technical and
conforming changes to commentary and policy statements are necessary.
This notice sets forth technical and conforming amendments to
commentary and policy statements that will become effective on November
1, 2012.
Authority: USSC Rules of Practice and Procedure 4.1.
Patti B. Saris,
Chair.
1. Amendment:
The Commentary to Sec. 1B1.10 captioned ``Application Notes'' is
amended in Note 4 by striking ``Application Note 10 to Sec. 2D1.1''
and inserting ``the Drug Equivalency Tables in the Commentary to Sec.
2D1.1 (see Sec. 2D1.1, comment. (n.8))''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended by renumbering Notes 1 through 29 according to the following
table:
------------------------------------------------------------------------
Before amendment After amendment
------------------------------------------------------------------------
1 1
17 2
13 3
2 4
12 5
5 6
6 7
10 8
11 9
15 10
3 11
18 12
23 13
25 14
26 15
27 16
28 17
19 18(A)
20 18(B)
29 19
21 20
24 21
8 22
7 23
22 24
4 25
14 26(A)
16 26(B)
9 26(C);
------------------------------------------------------------------------
and by rearranging those Notes, as so renumbered, to place them in
proper numerical order.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'', as
so renumbered and rearranged, is further amended by inserting headings
at the beginning of certain notes, as follows (with Notes referred to
by their new numbers):
------------------------------------------------------------------------
Heading to be inserted at the
Note beginning
------------------------------------------------------------------------
1.................................... ``Mixture or Substance''.--
2.................................... ``Plant''.--
3.................................... Classification of Controlled
Substances.--
4.................................... Applicability to ``Counterfeit''
Substances.--
5.................................... Determining Drug Types and Drug
Quantities.--
7.................................... Multiple Transactions or Multiple
Drug Types.--
9.................................... Determining Quantity Based on
Doses, Pills, or Capsules.--
10................................... Determining Quantity of LSD.--
12................................... Application of Subsection
(b)(5).--
18................................... Application of Subsection
(b)(13).--
23................................... Cases Involving Mandatory Minimum
Penalties.--
25................................... Cases Involving ``Small Amount of
Marihuana for No
Remuneration''.--
26................................... Departure Considerations.--
26(A)................................ Downward Departure Based on Drug
Quantity in Certain Reverse
Sting Operations.--
26(B)................................ Upward Departure Based on Drug
Quantity.--
26(C)................................ Upward Departure Based on
Unusually High Purity.--
------------------------------------------------------------------------
The Commentary to Sec. 2D1.1 captioned ``Application Notes'', as
so renumbered and rearranged and amended, is further amended as follows
(with Notes referred to by their new numbers):
In Note 8(A) by striking ``Note 5'' and inserting ``Note 6'';
In Note 15 by redesignating (i), (ii), and (iii) as (A), (B), and
(C), respectively;
In Note 18(A) by inserting before the period at the end of the
heading the following: ``(Subsection (b)(13)(A))''; and
In Note 18(B) by inserting before the period at the end of the
heading the following: ``(Subsection (b)(13)(C)B(D))'', by
redesignating its component subdivision (A) (beginning ``Factors to
Consider'') as (i), and that subdivision's component subdivisions (i)
through (iv) as (I) through (IV), respectively, and by redesignating
its component subdivision (B) (beginning ``Definitions'') as (ii).
The Commentary to Sec. 2D1.1 captioned ``Background'' is amended
by striking the fifth through eighth undesignated paragraphs as
follows:
``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.
Subsection (b)(3) is derived from Section 6453 of the Anti-Drug
Abuse Act of 1988.
Frequently, a term of supervised release to follow imprisonment is
required by statute for offenses covered by this guideline. Guidelines
for the imposition, duration, and conditions of supervised release are
set forth in Chapter Five, Part D (Supervised Release).'';
In the paragraph beginning ``The dosage weight'' by striking ``111
S.Ct. 1919'' and inserting ``500 U.S. 453''; and
[[Page 51112]]
By inserting before the paragraph beginning ``Subsection (b)(11)''
the following:
``Frequently, a term of supervised release to follow imprisonment
is required by statute for offenses covered by this guideline.
Guidelines for the imposition, duration, and conditions of supervised
release are set forth in Chapter Five, Part D (Supervised Release).
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.
Subsection (b)(3) is derived from Section 6453 of the Anti-Drug
Abuse Act of 1988.''.
The Commentary to Sec. 2D1.6 captioned ``Application Note'' is
amended in Note 1 by striking ``Note 12'' and inserting ``Note 5''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'', as
amended by Amendment 3 of the amendments submitted to Congress on April
30, 2012, is further amended by renumbering Notes 1 through 9 according
to the following table:
------------------------------------------------------------------------
Before amendment After amendment
------------------------------------------------------------------------
4 1
1 2
5 3
6 4
7 5
8 6
9 7
2 8
3 9;
------------------------------------------------------------------------
and by rearranging those Notes, as so renumbered, to place them in
proper numerical order.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'', as
so renumbered and rearranged, is further amended by inserting headings
at the beginning of certain notes, as follows (with Notes referred to
by their new numbers):
------------------------------------------------------------------------
Heading to be inserted at the
Note beginning
------------------------------------------------------------------------
2.................................... Application of Subsection
(b)(1).--
3.................................... Application of Subsection
(b)(2).--
4.................................... Application of Subsection
(b)(3).--
8.................................... Application of Subsection
(c)(1).--
9.................................... Offenses Involving Immediate
Precursors or Other Controlled
Substances Covered Under Sec.
2D1.1.--
------------------------------------------------------------------------
The Commentary to Sec. 2D1.11 captioned ``Application Notes'', as
so renumbered and rearranged and amended, is further amended in Note 9
(as so renumbered) by striking ``Note 12'' and inserting ``Note 5''.
The Commentary to Sec. 5G1.2 captioned ``Application Notes'', as
amended by Note 7 of the amendments submitted to Congress on April 30,
2012, is further amended by amending Note 1 to read as follows:
``1. In General.--This section specifies the procedure for
determining the specific sentence to be formally imposed on each count
in a multiple-count case. The combined length of the sentences (`total
punishment') is determined by the court after determining the adjusted
combined offense level and the Criminal History Category and
determining the defendant's guideline range on the Sentencing Table in
Chapter Five, Part A (Sentencing Table).
Note that the defendant's guideline range on the Sentencing Table
may be affected or restricted by a statutorily authorized maximum
sentence or a statutorily required minimum sentence not only in a
single-count case, see Sec. 5G1.1 (Sentencing on a Single Count of
Conviction), but also in a multiple-count case. See Note 3, below.
Except as otherwise required by subsection (e) or any other law,
the total punishment is to be imposed on each count and the sentences
on all counts are to be imposed to run concurrently to the extent
allowed by the statutory maximum sentence of imprisonment for each
count of conviction.
This section applies to multiple counts of conviction (A) contained
in the same indictment or information, or (B) contained in different
indictments or informations for which sentences are to be imposed at
the same time or in a consolidated proceeding.
Usually, at least one of the counts will have a statutory maximum
adequate to permit imposition of the total punishment as the sentence
on that count. The sentence on each of the other counts will then be
set at the lesser of the total punishment and the applicable statutory
maximum, and be made to run concurrently with all or part of the
longest sentence. If no count carries an adequate statutory maximum,
consecutive sentences are to be imposed to the extent necessary to
achieve the total punishment.''.
Section 5K2.0 is amended in subsection (d)(1) by striking ``the
last sentence of 5K2.12 (Coercion and Duress), and 5K2.19 (Post-
Sentencing Rehabilitative Efforts)'' and inserting ``and the last
sentence of 5K2.12 (Coercion and Duress)''.
Reason for Amendment:
This proposed amendment makes certain technical and conforming
changes to commentary in the Guidelines Manual.
First, it reorganizes the commentary to the drug trafficking
guideline, Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting,
or Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy), so that the order of the application
notes better reflects the order of the guidelines provisions to which
they relate. The proposed amendment also makes stylistic changes to the
Commentary to Sec. 2D1.1, such as by adding headings to certain
application notes. To reflect the renumbering of application notes in
Sec. 2D1.1, conforming changes are also made to the Commentary to
Sec. 1B1.10 and Sec. 2D1.6.
Second, it makes certain clerical and stylistic changes in
connection with certain recently promulgated amendments. See 77 FR
28226 (May 11, 2012). The clerical and stylistic changes are as
follows:
(1) Amendment 3 made revisions to Sec. 2D1.11 (Unlawfully
Distributing, Importing, Exporting or Possessing a Listed Chemical;
Attempt or Conspiracy). This proposed amendment reorganizes the
commentary to Sec. 2D1.11 so that the order of the application notes
better reflects the order of the guidelines provisions to which they
relate. The proposed amendment also makes stylistic changes to the
Commentary to Sec. 2D1.11 by adding headings to certain application
notes.
(2) Amendment 7 made revisions to Sec. 5G1.2 (Sentencing on
Multiple Counts of Conviction), including a revision to Application
Note 1. However, the amendatory instructions published in the Federal
Register to implement those revisions included an erroneous
instruction. This proposed amendment restates Application Note 1 in its
[[Page 51113]]
entirety to ensure that it conforms with the version of Application
Note 1 that appears in the unofficial, ``reader-friendly'' version of
Amendment 7 that the Commission made available in May 2012.
(3) Amendment 8 repealed the policy statement at Sec. 5K2.19
(Post-Sentencing Rehabilitative Efforts). However, a reference to that
policy statement is contained in Sec. 5K2.0 (Grounds for Departure).
This proposed amendment revises Sec. 5K2.0 to reflect the repeal of
Sec. 5K2.19.
[FR Doc. 2012-20786 Filed 8-22-12; 8:45 am]
BILLING CODE 2211-40-P
