Sentencing Guidelines for United States Courts, 25782-25796 [2015-10516]

Agencies

• United States Sentencing Commission

[Federal Register Volume 80, Number 86 (Tuesday, May 5, 2015)]
[Notices]
[Pages 25782-25796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10516]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of submission to Congress of amendments to the 
sentencing guidelines effective November 1, 2015.

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SUMMARY: Pursuant to its authority under 28 U.S.C. 994(p), the 
Commission has promulgated amendments to the sentencing guidelines, 
policy statements, commentary, and statutory index. This notice sets 
forth the amendments and the reason for each amendment.

DATES: The Commission has specified an effective date of November 1, 
2015, for the amendments set forth in this notice.

FOR FURTHER INFORMATION CONTACT: Jeanne Doherty, Public Affairs 
Officer, (202) 502-4502, jdoherty@ussc.gov. The amendments set forth in 
this notice also may be accessed through the Commission's Web site at 
www.ussc.gov.

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 generally 
submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) 
not later than the first day of May each year. Absent action of 
Congress to the contrary, submitted amendments become effective by 
operation of law on the date specified by the Commission (generally 
November 1 of the year in which the amendments are submitted to 
Congress).
    Notice of proposed amendments was published in the Federal Register 
on January 16, 2015 (see 80 FR 2569 through 2590). The Commission held 
a public hearing on the proposed amendments in Washington, DC, on March 
12, 2015. On April 30, 2015, the Commission submitted these amendments 
to Congress and specified an effective date of November 1, 2015.


[[Page 25783]]


    Authority: 28 U.S.C. 994(a), (o), and (p); USSC Rules of 
Practice and Procedure 4.1.

Patti B. Saris,
Chair.

    1. Amendment: Section 1B1.3(a)(1)(B) is amended by striking ``all 
reasonably foreseeable acts and omissions of others in furtherance of 
the jointly undertaken criminal activity,'' and inserting the 
following:
    ``all acts and omissions of others that were--
    (i) within the scope of the jointly undertaken criminal activity,
    (ii) in furtherance of that criminal activity, and
    (iii) reasonably foreseeable in connection with that criminal 
activity;''.
    The Commentary to Sec.  1B1.3 captioned ``Application Notes'' is 
amended by striking Note 2 as follows:
    ``2. A `jointly undertaken criminal activity' is a criminal plan, 
scheme, endeavor, or enterprise undertaken by the defendant in concert 
with others, whether or not charged as a conspiracy.
    In the case of a jointly undertaken criminal activity, subsection 
(a)(1)(B) provides that a defendant is accountable for the conduct 
(acts and omissions) of others that was both:
    (A) In furtherance of the jointly undertaken criminal activity; and
    (B) reasonably foreseeable in connection with that criminal 
activity.
    Because a count may be worded broadly and include the conduct of 
many participants over a period of time, the scope of the criminal 
activity jointly undertaken by the defendant (the `jointly undertaken 
criminal activity') is not necessarily the same as the scope of the 
entire conspiracy, and hence relevant conduct is not necessarily the 
same for every participant. In order to determine the defendant's 
accountability for the conduct of others under subsection (a)(1)(B), 
the court must first determine the scope of the criminal activity the 
particular defendant agreed to jointly undertake (i.e., the scope of 
the specific conduct and objectives embraced by the defendant's 
agreement). The conduct of others that was both in furtherance of, and 
reasonably foreseeable in connection with, the criminal activity 
jointly undertaken by the defendant is relevant conduct under this 
provision. The conduct of others that was not in furtherance of the 
criminal activity jointly undertaken by the defendant, or was not 
reasonably foreseeable in connection with that criminal activity, is 
not relevant conduct under this provision.
    In determining the scope of the criminal activity that the 
particular defendant agreed to jointly undertake (i.e., the scope of 
the specific conduct and objectives embraced by the defendant's 
agreement), the court may consider any explicit agreement or implicit 
agreement fairly inferred from the conduct of the defendant and others.
    Note that the criminal activity that the defendant agreed to 
jointly undertake, and the reasonably foreseeable conduct of others in 
furtherance of that criminal activity, are not necessarily identical. 
For example, two defendants agree to commit a robbery and, during the 
course of that robbery, the first defendant assaults and injures a 
victim. The second defendant is accountable for the assault and injury 
to the victim (even if the second defendant had not agreed to the 
assault and had cautioned the first defendant to be careful not to hurt 
anyone) because the assaultive conduct was in furtherance of the 
jointly undertaken criminal activity (the robbery) and was reasonably 
foreseeable in connection with that criminal activity (given the nature 
of the offense).
    With respect to offenses involving contraband (including controlled 
substances), the defendant is accountable for all quantities of 
contraband with which he was directly involved and, in the case of a 
jointly undertaken criminal activity, all reasonably foreseeable 
quantities of contraband that were within the scope of the criminal 
activity that he jointly undertook.
    The requirement of reasonable foreseeability applies only in 
respect to the conduct (i.e., acts and omissions) of others under 
subsection (a)(1)(B). It does not apply to conduct that the defendant 
personally undertakes, aids, abets, counsels, commands, induces, 
procures, or willfully causes; such conduct is addressed under 
subsection (a)(1)(A).
    A defendant's relevant conduct does not include the conduct of 
members of a conspiracy prior to the defendant joining the conspiracy, 
even if the defendant knows of that conduct (e.g., in the case of a 
defendant who joins an ongoing drug distribution conspiracy knowing 
that it had been selling two kilograms of cocaine per week, the cocaine 
sold prior to the defendant joining the conspiracy is not included as 
relevant conduct in determining the defendant's offense level). The 
Commission does not foreclose the possibility that there may be some 
unusual set of circumstances in which the exclusion of such conduct may 
not adequately reflect the defendant's culpability; in such a case, an 
upward departure may be warranted.

Illustrations of Conduct for Which the Defendant Is Accountable

(a) Acts and Omissions Aided or Abetted by the Defendant
    (1) Defendant A is one of ten persons hired by Defendant B to off-
load a ship containing marihuana. The off-loading of the ship is 
interrupted by law enforcement officers and one ton of marihuana is 
seized (the amount on the ship as well as the amount off-loaded). 
Defendant A and the other off-loaders are arrested and convicted of 
importation of marihuana. Regardless of the number of bales he 
personally unloaded, Defendant A is accountable for the entire one-ton 
quantity of marihuana. Defendant A aided and abetted the off-loading of 
the entire shipment of marihuana by directly participating in the off-
loading of that shipment (i.e., the specific objective of the criminal 
activity he joined was the off-loading of the entire shipment). 
Therefore, he is accountable for the entire shipment under subsection 
(a)(1)(A) without regard to the issue of reasonable foreseeability. 
This is conceptually similar to the case of a defendant who transports 
a suitcase knowing that it contains a controlled substance and, 
therefore, is accountable for the controlled substance in the suitcase 
regardless of his knowledge or lack of knowledge of the actual type or 
amount of that controlled substance.
    In certain cases, a defendant may be accountable for particular 
conduct under more than one subsection of this guideline. As noted in 
the preceding paragraph, Defendant A is accountable for the entire one-
ton shipment of marihuana under subsection (a)(1)(A). Defendant A also 
is accountable for the entire one-ton shipment of marihuana on the 
basis of subsection (a)(1)(B)(applying to a jointly undertaken criminal 
activity). Defendant A engaged in a jointly undertaken criminal 
activity (the scope of which was the importation of the shipment of 
marihuana). A finding that the one-ton quantity of marihuana was 
reasonably foreseeable is warranted from the nature of the undertaking 
itself (the importation of marihuana by ship typically involves very 
large quantities of marihuana). The specific circumstances of the case 
(the defendant was one of ten persons off-loading the marihuana in 
bales) also support this finding. In an actual case, of course, if a 
defendant's accountability for particular conduct is established under 
one provision of this guideline, it is not necessary to review 
alternative provisions under which such accountability might be 
established.

[[Page 25784]]

(b) Acts and Omissions Aided or Abetted by the Defendant; Requirement 
That the Conduct of Others Be in Furtherance of the Jointly Undertaken 
Criminal Activity and Reasonably Foreseeable
    (1) Defendant C is the getaway driver in an armed bank robbery in 
which $15,000 is taken and a teller is assaulted and injured. Defendant 
C is accountable for the money taken under subsection (a)(1)(A) because 
he aided and abetted the act of taking the money (the taking of money 
was the specific objective of the offense he joined). Defendant C is 
accountable for the injury to the teller under subsection (a)(1)(B) 
because the assault on the teller was in furtherance of the jointly 
undertaken criminal activity (the robbery) and was reasonably 
foreseeable in connection with that criminal activity (given the nature 
of the offense).
    As noted earlier, a defendant may be accountable for particular 
conduct under more than one subsection. In this example, Defendant C 
also is accountable for the money taken on the basis of subsection 
(a)(1)(B) because the taking of money was in furtherance of the jointly 
undertaken criminal activity (the robbery) and was reasonably 
foreseeable (as noted, the taking of money was the specific objective 
of the jointly undertaken criminal activity).
(c) Requirement That the Conduct of Others Be in Furtherance of the 
Jointly Undertaken Criminal Activity and Reasonably Foreseeable; Scope 
of the Criminal Activity
    (1) Defendant D pays Defendant E a small amount to forge an 
endorsement on an $800 stolen government check. Unknown to Defendant E, 
Defendant D then uses that check as a down payment in a scheme to 
fraudulently obtain $15,000 worth of merchandise. Defendant E is 
convicted of forging the $800 check and is accountable for the forgery 
of this check under subsection (a)(1)(A). Defendant E is not 
accountable for the $15,000 because the fraudulent scheme to obtain 
$15,000 was not in furtherance of the criminal activity he jointly 
undertook with Defendant D (i.e., the forgery of the $800 check).
    (2) Defendants F and G, working together, design and execute a 
scheme to sell fraudulent stocks by telephone. Defendant F fraudulently 
obtains $20,000. Defendant G fraudulently obtains $35,000. Each is 
convicted of mail fraud. Defendants F and G each are accountable for 
the entire amount ($55,000). Each defendant is accountable for the 
amount he personally obtained under subsection (a)(1)(A). Each 
defendant is accountable for the amount obtained by his accomplice 
under subsection (a)(1)(B) because the conduct of each was in 
furtherance of the jointly undertaken criminal activity and was 
reasonably foreseeable in connection with that criminal activity.
    (3) Defendants H and I engaged in an ongoing marihuana importation 
conspiracy in which Defendant J was hired only to help off-load a 
single shipment. Defendants H, I, and J are included in a single count 
charging conspiracy to import marihuana. Defendant J is accountable for 
the entire single shipment of marihuana he helped import under 
subsection (a)(1)(A) and any acts and omissions in furtherance of the 
importation of that shipment that were reasonably foreseeable (see the 
discussion in example (a)(1) above). He is not accountable for prior or 
subsequent shipments of marihuana imported by Defendants H or I because 
those acts were not in furtherance of his jointly undertaken criminal 
activity (the importation of the single shipment of marihuana).
    (4) Defendant K is a wholesale distributor of child pornography. 
Defendant L is a retail-level dealer who purchases child pornography 
from Defendant K and resells it, but otherwise operates independently 
of Defendant K. Similarly, Defendant M is a retail-level dealer who 
purchases child pornography from Defendant K and resells it, but 
otherwise operates independently of Defendant K. Defendants L and M are 
aware of each other's criminal activity but operate independently. 
Defendant N is Defendant K's assistant who recruits customers for 
Defendant K and frequently supervises the deliveries to Defendant K's 
customers. Each defendant is convicted of a count charging conspiracy 
to distribute child pornography. Defendant K is accountable under 
subsection (a)(1)(A) for the entire quantity of child pornography sold 
to Defendants L and M. Defendant N also is accountable for the entire 
quantity sold to those defendants under subsection (a)(1)(B) because 
the entire quantity was within the scope of his jointly undertaken 
criminal activity and reasonably foreseeable. Defendant L is 
accountable under subsection (a)(1)(A) only for the quantity of child 
pornography that he purchased from Defendant K because the scope of his 
jointly undertaken criminal activity is limited to that amount. For the 
same reason, Defendant M is accountable under subsection (a)(1)(A) only 
for the quantity of child pornography that he purchased from Defendant 
K.
    (5) Defendant O knows about her boyfriend's ongoing drug-
trafficking activity, but agrees to participate on only one occasion by 
making a delivery for him at his request when he was ill. Defendant O 
is accountable under subsection (a)(1)(A) for the drug quantity 
involved on that one occasion. Defendant O is not accountable for the 
other drug sales made by her boyfriend because those sales were not in 
furtherance of her jointly undertaken criminal activity (i.e., the one 
delivery).
    (6) Defendant P is a street-level drug dealer who knows of other 
street-level drug dealers in the same geographic area who sell the same 
type of drug as he sells. Defendant P and the other dealers share a 
common source of supply, but otherwise operate independently. Defendant 
P is not accountable for the quantities of drugs sold by the other 
street-level drug dealers because he is not engaged in a jointly 
undertaken criminal activity with them. In contrast, Defendant Q, 
another street-level drug dealer, pools his resources and profits with 
four other street-level drug dealers. Defendant Q is engaged in a 
jointly undertaken criminal activity and, therefore, he is accountable 
under subsection (a)(1)(B) for the quantities of drugs sold by the four 
other dealers during the course of his joint undertaking with them 
because those sales were in furtherance of the jointly undertaken 
criminal activity and reasonably foreseeable in connection with that 
criminal activity.
    (7) Defendant R recruits Defendant S to distribute 500 grams of 
cocaine. Defendant S knows that Defendant R is the prime figure in a 
conspiracy involved in importing much larger quantities of cocaine. As 
long as Defendant S's agreement and conduct is limited to the 
distribution of the 500 grams, Defendant S is accountable only for that 
500 gram amount (under subsection (a)(1)(A)), rather than the much 
larger quantity imported by Defendant R.
    (8) Defendants T, U, V, and W are hired by a supplier to backpack a 
quantity of marihuana across the border from Mexico into the United 
States. Defendants T, U, V, and W receive their individual shipments 
from the supplier at the same time and coordinate their importation 
efforts by walking across the border together for mutual assistance and 
protection. Each defendant is accountable for the aggregate quantity of 
marihuana transported by the four defendants. The four defendants 
engaged in a jointly undertaken criminal activity, the object

[[Page 25785]]

of which was the importation of the four backpacks containing marihuana 
(subsection (a)(1)(B)), and aided and abetted each other's actions 
(subsection (a)(1)(A)) in carrying out the jointly undertaken criminal 
activity. In contrast, if Defendants T, U, V, and W were hired 
individually, transported their individual shipments at different 
times, and otherwise operated independently, each defendant would be 
accountable only for the quantity of marihuana he personally 
transported (subsection (a)(1)(A)). As this example illustrates, in 
cases involving contraband (including controlled substances), the scope 
of the jointly undertaken criminal activity (and thus the 
accountability of the defendant for the contraband that was the object 
of that jointly undertaken activity) may depend upon whether, in the 
particular circumstances, the nature of the offense is more 
appropriately viewed as one jointly undertaken criminal activity or as 
a number of separate criminal activities.'';

by redesignating Notes 3 through 10 as Notes 5 through 12, 
respectively, and inserting the following new Notes 2, 3, and 4:
    ``2. Accountability Under More Than One Provision.--In certain 
cases, a defendant may be accountable for particular conduct under more 
than one subsection of this guideline. If a defendant's accountability 
for particular conduct is established under one provision of this 
guideline, it is not necessary to review alternative provisions under 
which such accountability might be established.
    3. Jointly Undertaken Criminal Activity (Subsection (a)(1)(B)).--
    (A) In General.--A `jointly undertaken criminal activity' is a 
criminal plan, scheme, endeavor, or enterprise undertaken by the 
defendant in concert with others, whether or not charged as a 
conspiracy.
    In the case of a jointly undertaken criminal activity, subsection 
(a)(1)(B) provides that a defendant is accountable for the conduct 
(acts and omissions) of others that was:
    (i) Within the scope of the jointly undertaken criminal activity;
    (ii) in furtherance of that criminal activity; and
    (iii) reasonably foreseeable in connection with that criminal 
activity.
    The conduct of others that meets all three criteria set forth in 
subdivisions (i) through (iii) (i.e., `within the scope,' `in 
furtherance,' and `reasonably foreseeable') is relevant conduct under 
this provision. However, when the conduct of others does not meet any 
one of the criteria set forth in subdivisions (i) through (iii), the 
conduct is not relevant conduct under this provision.
    (B) Scope.--Because a count may be worded broadly and include the 
conduct of many participants over a period of time, the scope of the 
`jointly undertaken criminal activity' is not necessarily the same as 
the scope of the entire conspiracy, and hence relevant conduct is not 
necessarily the same for every participant. In order to determine the 
defendant's accountability for the conduct of others under subsection 
(a)(1)(B), the court must first determine the scope of the criminal 
activity the particular defendant agreed to jointly undertake (i.e., 
the scope of the specific conduct and objectives embraced by the 
defendant's agreement). In doing so, the court may consider any 
explicit agreement or implicit agreement fairly inferred from the 
conduct of the defendant and others. Accordingly, the accountability of 
the defendant for the acts of others is limited by the scope of his or 
her agreement to jointly undertake the particular criminal activity. 
Acts of others that were not within the scope of the defendant's 
agreement, even if those acts were known or reasonably foreseeable to 
the defendant, are not relevant conduct under subsection (a)(1)(B).
    In cases involving contraband (including controlled substances), 
the scope of the jointly undertaken criminal activity (and thus the 
accountability of the defendant for the contraband that was the object 
of that jointly undertaken activity) may depend upon whether, in the 
particular circumstances, the nature of the offense is more 
appropriately viewed as one jointly undertaken criminal activity or as 
a number of separate criminal activities.
    A defendant's relevant conduct does not include the conduct of 
members of a conspiracy prior to the defendant joining the conspiracy, 
even if the defendant knows of that conduct (e.g., in the case of a 
defendant who joins an ongoing drug distribution conspiracy knowing 
that it had been selling two kilograms of cocaine per week, the cocaine 
sold prior to the defendant joining the conspiracy is not included as 
relevant conduct in determining the defendant's offense level). The 
Commission does not foreclose the possibility that there may be some 
unusual set of circumstances in which the exclusion of such conduct may 
not adequately reflect the defendant's culpability; in such a case, an 
upward departure may be warranted.
    (C) In Furtherance.--The court must determine if the conduct (acts 
and omissions) of others was in furtherance of the jointly undertaken 
criminal activity.
    (D) Reasonably Foreseeable.--The court must then determine if the 
conduct (acts and omissions) of others that was within the scope of, 
and in furtherance of, the jointly undertaken criminal activity was 
reasonably foreseeable in connection with that criminal activity.
    Note that the criminal activity that the defendant agreed to 
jointly undertake, and the reasonably foreseeable conduct of others in 
furtherance of that criminal activity, are not necessarily identical. 
For example, two defendants agree to commit a robbery and, during the 
course of that robbery, the first defendant assaults and injures a 
victim. The second defendant is accountable for the assault and injury 
to the victim (even if the second defendant had not agreed to the 
assault and had cautioned the first defendant to be careful not to hurt 
anyone) because the assaultive conduct was within the scope of the 
jointly undertaken criminal activity (the robbery), was in furtherance 
of that criminal activity (the robbery), and was reasonably foreseeable 
in connection with that criminal activity (given the nature of the 
offense).
    With respect to offenses involving contraband (including controlled 
substances), the defendant is accountable under subsection (a)(1)(A) 
for all quantities of contraband with which he was directly involved 
and, in the case of a jointly undertaken criminal activity under 
subsection (a)(1)(B), all quantities of contraband that were involved 
in transactions carried out by other participants, if those 
transactions were within the scope of, and in furtherance of, the 
jointly undertaken criminal activity and were reasonably foreseeable in 
connection with that criminal activity.
    The requirement of reasonable foreseeability applies only in 
respect to the conduct (i.e., acts and omissions) of others under 
subsection (a)(1)(B). It does not apply to conduct that the defendant 
personally undertakes, aids, abets, counsels, commands, induces, 
procures, or willfully causes; such conduct is addressed under 
subsection (a)(1)(A).
    4. Illustrations of Conduct for Which the Defendant is Accountable 
under Subsections (a)(1)(A) and (B).--
    (A) Acts and omissions aided or abetted by the defendant.--
    (i) Defendant A is one of ten persons hired by Defendant B to off-
load a ship containing marihuana. The off-loading of the ship is 
interrupted by law enforcement officers and one ton of marihuana is 
seized (the amount on the ship as well as the amount off-loaded).

[[Page 25786]]

Defendant A and the other off-loaders are arrested and convicted of 
importation of marihuana. Regardless of the number of bales he 
personally unloaded, Defendant A is accountable for the entire one-ton 
quantity of marihuana. Defendant A aided and abetted the off-loading of 
the entire shipment of marihuana by directly participating in the off-
loading of that shipment (i.e., the specific objective of the criminal 
activity he joined was the off-loading of the entire shipment). 
Therefore, he is accountable for the entire shipment under subsection 
(a)(1)(A) without regard to the issue of reasonable foreseeability. 
This is conceptually similar to the case of a defendant who transports 
a suitcase knowing that it contains a controlled substance and, 
therefore, is accountable for the controlled substance in the suitcase 
regardless of his knowledge or lack of knowledge of the actual type or 
amount of that controlled substance.
    In certain cases, a defendant may be accountable for particular 
conduct under more than one subsection of this guideline. As noted in 
the preceding paragraph, Defendant A is accountable for the entire one-
ton shipment of marihuana under subsection (a)(1)(A). Defendant A also 
is accountable for the entire one-ton shipment of marihuana on the 
basis of subsection (a)(1)(B) (applying to a jointly undertaken 
criminal activity). Defendant A engaged in a jointly undertaken 
criminal activity and all three criteria of subsection (a)(1)(B) are 
met. First, the conduct was within the scope of the criminal activity 
(the importation of the shipment of marihuana). Second, the off-loading 
of the shipment of marihuana was in furtherance of the criminal 
activity, as described above. And third, a finding that the one-ton 
quantity of marihuana was reasonably foreseeable is warranted from the 
nature of the undertaking itself (the importation of marihuana by ship 
typically involves very large quantities of marihuana). The specific 
circumstances of the case (the defendant was one of ten persons off-
loading the marihuana in bales) also support this finding. In an actual 
case, of course, if a defendant's accountability for particular conduct 
is established under one provision of this guideline, it is not 
necessary to review alternative provisions under which such 
accountability might be established. See Application Note 2.
    (B) Acts and omissions aided or abetted by the defendant; acts and 
omissions in a jointly undertaken criminal activity.--
    (i) Defendant C is the getaway driver in an armed bank robbery in 
which $15,000 is taken and a teller is assaulted and injured. Defendant 
C is accountable for the money taken under subsection (a)(1)(A) because 
he aided and abetted the act of taking the money (the taking of money 
was the specific objective of the offense he joined). Defendant C is 
accountable for the injury to the teller under subsection (a)(1)(B) 
because the assault on the teller was within the scope and in 
furtherance of the jointly undertaken criminal activity (the robbery), 
and was reasonably foreseeable in connection with that criminal 
activity (given the nature of the offense).
    As noted earlier, a defendant may be accountable for particular 
conduct under more than one subsection. In this example, Defendant C 
also is accountable for the money taken on the basis of subsection 
(a)(1)(B) because the taking of money was within the scope and in 
furtherance of the jointly undertaken criminal activity (the robbery), 
and was reasonably foreseeable (as noted, the taking of money was the 
specific objective of the jointly undertaken criminal activity).
    (C) Requirements that the conduct of others be within the scope of 
the jointly undertaken criminal activity, in furtherance of that 
criminal activity, and reasonably foreseeable.--
    (i) Defendant D pays Defendant E a small amount to forge an 
endorsement on an $800 stolen government check. Unknown to Defendant E, 
Defendant D then uses that check as a down payment in a scheme to 
fraudulently obtain $15,000 worth of merchandise. Defendant E is 
convicted of forging the $800 check and is accountable for the forgery 
of this check under subsection (a)(1)(A). Defendant E is not 
accountable for the $15,000 because the fraudulent scheme to obtain 
$15,000 was not within the scope of the jointly undertaken criminal 
activity (i.e., the forgery of the $800 check).
    (ii) Defendants F and G, working together, design and execute a 
scheme to sell fraudulent stocks by telephone. Defendant F fraudulently 
obtains $20,000. Defendant G fraudulently obtains $35,000. Each is 
convicted of mail fraud. Defendants F and G each are accountable for 
the entire amount ($55,000). Each defendant is accountable for the 
amount he personally obtained under subsection (a)(1)(A). Each 
defendant is accountable for the amount obtained by his accomplice 
under subsection (a)(1)(B) because the conduct of each was within the 
scope of the jointly undertaken criminal activity (the scheme to sell 
fraudulent stocks), was in furtherance of that criminal activity, and 
was reasonably foreseeable in connection with that criminal activity.
    (iii) Defendants H and I engaged in an ongoing marihuana 
importation conspiracy in which Defendant J was hired only to help off-
load a single shipment. Defendants H, I, and J are included in a single 
count charging conspiracy to import marihuana. Defendant J is 
accountable for the entire single shipment of marihuana he helped 
import under subsection (a)(1)(A) and any acts and omissions of others 
related to the importation of that shipment on the basis of subsection 
(a)(1)(B) (see the discussion in example (A)(i) above). He is not 
accountable for prior or subsequent shipments of marihuana imported by 
Defendants H or I because those acts were not within the scope of his 
jointly undertaken criminal activity (the importation of the single 
shipment of marihuana).
    (iv) Defendant K is a wholesale distributor of child pornography. 
Defendant L is a retail-level dealer who purchases child pornography 
from Defendant K and resells it, but otherwise operates independently 
of Defendant K. Similarly, Defendant M is a retail-level dealer who 
purchases child pornography from Defendant K and resells it, but 
otherwise operates independently of Defendant K. Defendants L and M are 
aware of each other's criminal activity but operate independently. 
Defendant N is Defendant K's assistant who recruits customers for 
Defendant K and frequently supervises the deliveries to Defendant K's 
customers. Each defendant is convicted of a count charging conspiracy 
to distribute child pornography. Defendant K is accountable under 
subsection (a)(1)(A) for the entire quantity of child pornography sold 
to Defendants L and M. Defendant N also is accountable for the entire 
quantity sold to those defendants under subsection (a)(1)(B) because 
the entire quantity was within the scope of his jointly undertaken 
criminal activity (to distribute child pornography with Defendant K), 
in furtherance of that criminal activity, and reasonably foreseeable. 
Defendant L is accountable under subsection (a)(1)(A) only for the 
quantity of child pornography that he purchased from Defendant K 
because he is not engaged in a jointly undertaken criminal activity 
with the other defendants. For the same reason, Defendant M is 
accountable under subsection (a)(1)(A) only for the quantity of child 
pornography that he purchased from Defendant K.
    (v) Defendant O knows about her boyfriend's ongoing drug-
trafficking activity, but agrees to participate on

[[Page 25787]]

only one occasion by making a delivery for him at his request when he 
was ill. Defendant O is accountable under subsection (a)(1)(A) for the 
drug quantity involved on that one occasion. Defendant O is not 
accountable for the other drug sales made by her boyfriend because 
those sales were not within the scope of her jointly undertaken 
criminal activity (i.e., the one delivery).
    (vi) Defendant P is a street-level drug dealer who knows of other 
street-level drug dealers in the same geographic area who sell the same 
type of drug as he sells. Defendant P and the other dealers share a 
common source of supply, but otherwise operate independently. Defendant 
P is not accountable for the quantities of drugs sold by the other 
street-level drug dealers because he is not engaged in a jointly 
undertaken criminal activity with them. In contrast, Defendant Q, 
another street-level drug dealer, pools his resources and profits with 
four other street-level drug dealers. Defendant Q is engaged in a 
jointly undertaken criminal activity and, therefore, he is accountable 
under subsection (a)(1)(B) for the quantities of drugs sold by the four 
other dealers during the course of his joint undertaking with them 
because those sales were within the scope of the jointly undertaken 
criminal activity, in furtherance of that criminal activity, and 
reasonably foreseeable in connection with that criminal activity.
    (vii) Defendant R recruits Defendant S to distribute 500 grams of 
cocaine. Defendant S knows that Defendant R is the prime figure in a 
conspiracy involved in importing much larger quantities of cocaine. As 
long as Defendant S's agreement and conduct is limited to the 
distribution of the 500 grams, Defendant S is accountable only for that 
500 gram amount (under subsection (a)(1)(A)), rather than the much 
larger quantity imported by Defendant R. Defendant S is not accountable 
under subsection (a)(1)(B) for the other quantities imported by 
Defendant R because those quantities were not within the scope of his 
jointly undertaken criminal activity (i.e., the 500 grams).
    (viii) Defendants T, U, V, and W are hired by a supplier to 
backpack a quantity of marihuana across the border from Mexico into the 
United States. Defendants T, U, V, and W receive their individual 
shipments from the supplier at the same time and coordinate their 
importation efforts by walking across the border together for mutual 
assistance and protection. Each defendant is accountable for the 
aggregate quantity of marihuana transported by the four defendants. The 
four defendants engaged in a jointly undertaken criminal activity, the 
object of which was the importation of the four backpacks containing 
marihuana (subsection (a)(1)(B)), and aided and abetted each other's 
actions (subsection (a)(1)(A)) in carrying out the jointly undertaken 
criminal activity (which under subsection (a)(1)(B) were also in 
furtherance of, and reasonably foreseeable in connection with, the 
criminal activity). In contrast, if Defendants T, U, V, and W were 
hired individually, transported their individual shipments at different 
times, and otherwise operated independently, each defendant would be 
accountable only for the quantity of marihuana he personally 
transported (subsection (a)(1)(A)). As this example illustrates, the 
scope of the jointly undertaken criminal activity may depend upon 
whether, in the particular circumstances, the nature of the offense is 
more appropriately viewed as one jointly undertaken criminal activity 
or as a number of separate criminal activities. See Application Note 
3(B).''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 14(E) by striking ``Application Note 9'' both places 
such term appears and inserting ``Application Note 11''.
    The Commentary to Sec.  2X3.1 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Application Note 10'' and inserting 
``Application Note 12''.
    The Commentary to Sec.  2X4.1 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Application Note 10'' and inserting 
``Application Note 12''.
    Reason for Amendment: This amendment is a result of the 
Commission's effort to clarify the use of relevant conduct in offenses 
involving multiple participants.
    The amendment makes clarifying revisions to Sec.  1B1.3 (Relevant 
Conduct (Factors that Determine the Guideline Range)). It restructures 
the guideline and its commentary to set out more clearly the three-step 
analysis the court applies in determining whether a defendant is 
accountable for the conduct of others in a jointly undertaken criminal 
activity under Sec.  1B1.3(a)(1)(B). The three-step analysis requires 
that the court (1) identify the scope of the jointly undertaken 
criminal activity; (2) determine whether the conduct of others in the 
jointly undertaken criminal activity was in furtherance of that 
criminal activity; and (3) determine whether the conduct of others was 
reasonably foreseeable in connection with that criminal activity.
    Prior to this amendment, the ``scope'' element of the three-step 
analysis was identified in the commentary to Sec.  1B1.3 but was not 
included in the text of the guideline itself. This amendment makes 
clear that, under the ``jointly undertaken criminal activity'' 
provision, a defendant is accountable for the conduct of others in a 
jointly undertaken criminal activity if the conduct meets all three 
criteria of the three-step analysis. This amendment is not intended as 
a substantive change in policy.
    2. Amendment: Section 2B1.1(b) is amended by striking paragraph (1) 
as follows:
    ``(1) If the loss exceeded $5,000, increase the offense level as 
follows:

------------------------------------------------------------------------
         Loss (apply the greatest)                Increase in level
------------------------------------------------------------------------
(A) $5,000 or less........................  no increase
(B) More than $5,000......................  add 2
(C) More than $10,000.....................   add 4
(D) More than $30,000.....................  add 6
(E) More than $70,000.....................  add 8
(F) More than $120,000....................  add 10
(G) More than $200,000....................  add 12
(H) More than $400,000....................  add 14
(I) More than $1,000,000..................  add 16
(J) More than $2,500,000..................  add 18
(K) More than $7,000,000..................  add 20
(L) More than $20,000,000.................  add 22
(M) More than $50,000,000.................  add 24
(N) More than $100,000,000................  add 26
(O) More than $200,000,000................  add 28
(P) More than $400,000,000................  add 30.'';
------------------------------------------------------------------------

and inserting the following:
    ``(1) If the loss exceeded $6,500, increase the offense level as 
follows:

------------------------------------------------------------------------
         Loss (apply the greatest)                Increase in level
------------------------------------------------------------------------
(A) $6,500 or less........................  no increase
(B) More than $6,500......................   add 2
(C) More than $15,000.....................  add 4
(D) More than $40,000.....................  add 6
(E) More than $95,000.....................  add 8
(F) More than $150,000....................  add 10
(G) More than $250,000....................  add 12
(H) More than $550,000....................  add 14
(I) More than $1,500,000..................  add 16
(J) More than $3,500,000..................  add 18
(K) More than $9,500,000..................  add 20
(L) More than $25,000,000.................  add 22
(M) More than $65,000,000.................  add 24
(N) More than $150,000,000................  add 26
(O) More than $250,000,000................  add 28
(P) More than $550,000,000................  add 30.''.
------------------------------------------------------------------------

    Section 2B1.4(b)(1) is amended by striking ``$5,000'' and inserting 
``$6,500''.
    Section 2B1.5(b)(1) is amended by striking ``$2,000'' and inserting 
``$2,500''; and by striking ``$5,000'' both places such term appears 
and inserting ``$6,500''.

[[Page 25788]]

    Section 2B2.1(b) is amended by striking paragraph (2) as follows:
    ``(2) If the loss exceeded $2,500, increase the offense level as 
follows:

------------------------------------------------------------------------
         Loss (apply the greatest)                Increase in level
------------------------------------------------------------------------
(A) $2,500 or less........................  no increase
(B) More than $2,500......................  add 1
(C) More than $10,000.....................  add 2
(D) More than $50,000.....................  add 3
(E) More than $250,000....................  add 4
(F) More than $800,000....................  add 5
(G) More than $1,500,000..................  add 6
(H) More than $2,500,000..................  add 7
(I) More than $5,000,000..................  add 8.'';
------------------------------------------------------------------------

and inserting the following:
    ``(2) If the loss exceeded $5,000, increase the offense level as 
follows:

------------------------------------------------------------------------
         Loss (apply the greatest)                Increase in level
------------------------------------------------------------------------
(A) $5,000 or less........................  no increase
(B) More than $5,000......................  add 1
(C) More than $20,000.....................  add 2
(D) More than $95,000.....................  add 3
(E) More than $500,000....................  add 4
(F) More than $1,500,000..................  add 5
(G) More than $3,000,000..................  add 6
(H) More than $5,000,000..................  add 7
(I) More than $9,500,000..................  add 8.''.
------------------------------------------------------------------------

    Section 2B2.3(b)(3) is amended by striking ``$2,000'' and inserting 
``$2,500''; and by striking ``$5,000'' both places such term appears 
and inserting ``$6,500''.
    Section 2B3.1(b) is amended by striking paragraph (7) as follows:
    ``(7) If the loss exceeded $10,000, increase the offense level as 
follows:

------------------------------------------------------------------------
         Loss (apply the greatest)                Increase in level
------------------------------------------------------------------------
(A) $10,000 or less.......................  no increase
(B) More than $10,000.....................  add 1
(C) More than $50,000.....................  add 2
(D) More than $250,000....................  add 3
(E) More than $800,000....................  add 4
(F) More than $1,500,000..................  add 5
(G) More than $2,500,000..................  add 6
(H) More than $5,000,000..................  add 7.'';
------------------------------------------------------------------------

and inserting the following:
    ``(7) If the loss exceeded $20,000, increase the offense level as 
follows:

------------------------------------------------------------------------
         Loss (apply the greatest)                Increase in level
------------------------------------------------------------------------
(A) $20,000 or less.......................  no increase.
(B) More than $20,000.....................  add 1
(C) More than $95,000.....................  add 2
(D) More than $500,000....................  add 3
(E) More than $1,500,000..................  add 4
(F) More than $3,000,000..................  add 5
(G) More than $5,000,000..................  add 6
(H) More than $9,500,000..................  add 7.''.
------------------------------------------------------------------------

    Section 2B3.2(b)(2) is amended by striking ``$10,000'' and 
inserting ``$20,000''.
    Sections 2B3.3(b)(1), 2B4.1(b)(1), 2B5.1(b)(1), 2B5.3(b)(1), and 
2B6.1(b)(1) are each amended by striking ``$2,000'' and inserting 
``$2,500''; and by striking ``$5,000'' both places such term appears 
and inserting ``$6,500''.
    Sections 2C1.1(b)(2), 2C1.2(b)(2), and 2C1.8(b)(1) are each amended 
by striking ``$5,000'' and inserting ``$6,500''.
    Sections 2E5.1(b)(2) and 2Q2.1(b)(3) are each amended by striking 
``$2,000'' and inserting ``$2,500''; and by striking ``$5,000'' both 
places such term appears and inserting ``$6,500''.
    Section 2R1.1(b) is amended by striking paragraph (2) as follows:
    ``(2) If the volume of commerce attributable to the defendant was 
more than $1,000,000, adjust the offense level as follows:

------------------------------------------------------------------------
 Volume of commerce  (apply the greatest)    Adjustment to offense level
------------------------------------------------------------------------
(A) More than $1,000,000..................  add 2
(B) More than $10,000,000.................  add 4
(C) More than $40,000,000.................  add 6
(D) More than $100,000,000................  add 8
(E) More than $250,000,000................  add 10
(F) More than $500,000,000................  add 12
(G) More than $1,000,000,000..............  add 14
(H) More than $1,500,000,000..............  add 16.'';
------------------------------------------------------------------------

and inserting the following:
``(2) If the volume of commerce attributable to the defendant was more 
than $1,000,000, adjust the offense level as follows:

------------------------------------------------------------------------
 Volume of commerce  (apply the greatest)    Adjustment to offense level
------------------------------------------------------------------------
(A) More than $1,000,000..................  add 2
(B) More than $10,000,000.................  add 4
(C) More than $50,000,000.................  add 6
(D) More than $100,000,000................  add 8
(E) More than $300,000,000................  add 10
(F) More than $600,000,000................  add 12
(G) More than $1,200,000,000..............  add 14
(H) More than $1,850,000,000..............  add 16.''.
------------------------------------------------------------------------

    Section 2T3.1(a) is amended by striking ``$1,000'' both places such 
term appears and inserting ``$1,500''; and by striking ``$100'' both 
places such term appears and inserting ``$200''.
    Section 2T4.1 is amended by striking the following:

------------------------------------------------------------------------
     ``Tax loss  (apply the greatest)               Offense level
------------------------------------------------------------------------
(A) $2,000 or less........................  6
(B) More than $2,000......................  8
(C) More than $5,000......................  10
(D) More than $12,500.....................  12
(E) More than $30,000.....................  14
(F) More than $80,000.....................  16
(G) More than $200,000....................  18
(H) More than $400,000....................  20
(I) More than $1,000,000..................  22
(J) More than $2,500,000..................  24
(K) More than $7,000,000..................  26
(L) More than $20,000,000.................  28
(M) More than $50,000,000.................  30
(N) More than $100,000,000................  32
(O) More than $200,000,000................  34
(P) More than $400,000,000................  36.'';
------------------------------------------------------------------------

and inserting the following:

------------------------------------------------------------------------
     ``Tax loss  (apply the greatest)               Offense level
------------------------------------------------------------------------
(A) $2,500 or less........................  6
(B) More than $2,500......................  8
(C) More than $6,500......................  10
(D) More than $15,000.....................  12
(E) More than $40,000.....................  14
(F) More than $100,000....................  16
(G) More than $250,000....................  18
(H) More than $550,000....................  20
(I) More than $1,500,000..................  22
(J) More than $3,500,000..................  24
(K) More than $9,500,000..................  26
(L) More than $25,000,000.................  28
(M) More than $65,000,000.................  30
(N) More than $150,000,000................  32
(O) More than $250,000,000................  34
(P) More than $550,000,000................  36.'';
------------------------------------------------------------------------

    Section 5E1.2 is amended in subsection (c)(3) by striking the 
following:

                              ``Fine Table
------------------------------------------------------------------------
              Offense level                  A minimum       B maximum
------------------------------------------------------------------------
3 and below.............................            $100          $5,000
4-5.....................................             250           5,000
6-7.....................................             500           5,000
8-9.....................................           1,000          10,000
10-11...................................           2,000          20,000
12-13...................................           3,000          30,000
14-15...................................           4,000          40,000
16-17...................................           5,000          50,000
18-19...................................           6,000          60,000
20-22...................................           7,500          75,000
23-25...................................          10,000         100,000
26-28...................................          12,500         125,000
29-31...................................          15,000         150,000
32-34...................................          17,500         175,000
35-37...................................          20,000         200,000
38 and above............................          25,000     250,000.'',
------------------------------------------------------------------------

and inserting the following:

[[Page 25789]]



                              ``Fine Table
------------------------------------------------------------------------
              Offense level                  A minimum       B maximum
------------------------------------------------------------------------
3 and below.............................            $200          $9,500
4-5.....................................             500           9,500
6-7.....................................           1,000           9,500
8-9.....................................           2,000          20,000
10-11...................................           4,000          40,000
12-13...................................           5,500          55,000
14-15...................................           7,500          75,000
16-17...................................          10,000          95,000
18-19...................................          10,000         100,000
20-22...................................          15,000         150,000
23-25...................................          20,000         200,000
26-28...................................          25,000         250,000
29-31...................................          30,000         300,000
32-34...................................          35,000         350,000
35-37...................................          40,000         400,000
38 and above............................          50,000     500,000.'';
------------------------------------------------------------------------

in subsection (c)(4) by striking ``$250,000'' and inserting 
``$500,000'';
    and by inserting after subsection (g) the following new subsection 
(h):
    ``(h) Special Instruction
    (1) For offenses committed prior to November 1, 2015, use the 
applicable fine guideline range that was set forth in the version of 
Sec.  5E1.2(c) that was in effect on November 1, 2014, rather than the 
applicable fine guideline range set forth in subsection (c) above.''.
    Section 8C2.4 is amended in subsection (d) by striking the 
following:

                       ``Offense Level Fine Table
------------------------------------------------------------------------
               Offense level                           Amount
------------------------------------------------------------------------
6 or less.................................  $5,000
7.........................................  7,500
8.........................................  10,000
9.........................................  15,000
10........................................  20,000
11........................................  30,000
12........................................  40,000
13........................................  60,000
14........................................  85,000
15........................................  125,000
16........................................  175,000
17........................................  250,000
18........................................  350,000
19........................................  500,000
20........................................  650,000
21........................................  910,000
22........................................  1,200,000
23........................................  1,600,000
24........................................  2,100,000
25........................................  2,800,000
26........................................  3,700,000
27........................................  4,800,000
28........................................  6,300,000
29........................................  8,100,000
30........................................  10,500,000
31........................................  13,500,000
32........................................  17,500,000
33........................................  22,000,000
34........................................  28,500,000
35........................................  36,000,000
36........................................  45,500,000
37........................................  57,500,000
38........................................  or more 72,500,000.'',
------------------------------------------------------------------------

and inserting the following:

                       ``Offense Level Fine Table
------------------------------------------------------------------------
               Offense level                           Amount
------------------------------------------------------------------------
6 or less.................................  $8,500
7.........................................  15,000
8.........................................  15,000
9.........................................  25,000
10........................................  35,000
11........................................  50,000
12........................................  70,000
13........................................  100,000
14........................................  150,000
15........................................  200,000
16........................................  300,000
17........................................  450,000
18........................................  600,000
19........................................  850,000
20........................................  1,000,000
21........................................  1,500,000
22........................................  2,000,000
23........................................  3,000,000
24........................................  3,500,000
25........................................  5,000,000
26........................................  6,500,000
27........................................  8,500,000
28........................................  10,000,000
29........................................  15,000,000
30........................................  20,000,000
31........................................  25,000,000
32........................................  30,000,000
33........................................  40,000,000
34........................................  50,000,000
35........................................  65,000,000
36........................................  80,000,000
37........................................  100,000,000
38 or more................................  150,000,000.''
------------------------------------------------------------------------

and by inserting after subsection (d) the following new subsection (e):
    ``(e) Special Instruction
    (1) For offenses committed prior to November 1, 2015, use the 
offense level fine table that was set forth in the version of Sec.  
8C2.4(d) that was in effect on November 1, 2014, rather than the 
offense level fine table set forth in subsection (d) above.''.
    Reason for Amendment: This amendment makes adjustments to the 
monetary tables in Sec. Sec.  2B1.1 (Theft, Property, Destruction, and 
Fraud), 2B2.1 (Burglary), 2B3.1 (Robbery), 2R1.1 (Bid-Rigging, Price-
Fixing or Market-Allocation Agreements Among Competitors), 2T4.1 (Tax 
Table), 5E1.2 (Fines for Individual Defendants), and 8C2.4 (Base Fine) 
to account for inflation. The amendment adjusts the amounts in each of 
the seven monetary tables using a specific multiplier derived from the 
Consumer Price Index (CPI), and then rounds--
     Amounts greater than $100,000,000 to the nearest multiple 
of $50,000,000;
     amounts greater than $10,000,000 to the nearest multiple 
of $5,000,000;
     amounts greater than $1,000,000 to the nearest multiple of 
$500,000;
     amounts greater than $100,000 to the nearest multiple of 
$50,000;
     amounts greater than $10,000 to the nearest multiple of 
$5,000;
     amounts greater than $1,000 to the nearest multiple of 
$500; and
     amounts of $1,000 or less to the nearest multiple of $50.
    In addition, the amendment includes conforming changes to other 
Chapter Two guidelines that refer to the monetary tables.
    Congress has generally mandated that agencies in the executive 
branch adjust the civil monetary penalties they impose to account for 
inflation using the CPI. See 28 U.S.C. 2461 note (Federal Civil 
Penalties Inflationary Adjustment Act of 1990). Although the 
Commission's work does not involve civil monetary penalties, it does 
establish appropriate criminal sentences for categories of offenses and 
offenders, including appropriate amounts for criminal fines. While some 
of the monetary values in the Chapter Two guidelines have been revised 
since they were originally established in 1987, none of the tables has 
been specifically revised to account for inflation.
    Due to inflationary changes, there has been a gradual decrease in 
the value of the dollar over time. As a result, monetary losses in 
current offenses reflect, to some degree, a lower degree of harm and 
culpability than did equivalent amounts when the monetary tables were 
established or last substantively amended. Similarly, the fine levels 
recommended by the guidelines are lower in value than when they were 
last adjusted, and therefore, do not have the same sentencing impact as 
a similar fine in the past. Based on its analysis and widespread 
support for inflationary adjustments expressed in public comment, the 
Commission concluded that aligning the above monetary tables with 
modern dollar values is an appropriate step at this time.
    The amendment adjusts each table based on inflationary changes 
since the year each monetary table was last substantially amended:
     Loss table in Sec.  2B1.1 and tax table in Sec.  2T4.1: 
adjusting for inflation from 2001 ($1.00 in 2001 = $1.34 in 2014);
     Loss tables in Sec. Sec.  2B2.1 and 2B3.1 and fine table 
for individual defendants at Sec.  5E1.2(c)(3): adjusting for inflation

[[Page 25790]]

from 1989 ($1.00 in 1989 = $1.91 in 2014);
     Volume of Commerce table in Sec.  2R1.1: adjusting for 
inflation from 2005 ($1.00 in 2005 = $1.22 in 2014); and
     Fine table for organizational defendants at Sec.  
8C2.4(d): adjusting for inflation from 1991 ($1.00 in 1991 = $1.74 in 
2014).
    Adjusting from the last substantive amendment year appropriately 
accounts for the Commission's previous work in revising these tables at 
various times. Although not specifically focused on inflationary 
issues, previous Commissions engaged in careful examination (and at 
times, a wholesale rewriting) of the monetary tables and ultimately 
included monetary and enhancement levels that it considered appropriate 
at that time. The Commission estimates that this amendment would result 
in the Bureau of Prisons having approximately 224 additional prison 
beds available at the end of the first year after implementation, and 
approximately 956 additional prison beds available at the end of its 
fifth year of implementation.
    Finally, the amendment adds a special instruction to both 
Sec. Sec.  5E1.2 and 8C2.4 providing that, for offenses committed prior 
to November 1, 2015, the court shall use the fine provisions that were 
in effect on November 1, 2014, rather than the fine provisions as 
amended for inflation. This addition responds to concerns expressed in 
public comment that changes to the fine tables might create ex post 
facto problems. It ensures that an offender whose offense level is 
calculated under the current Guidelines Manual is not subject to the 
inflated fine provisions if his or her offense was committed prior to 
November 1, 2015. Such guidance is similar to that provided in the 
commentary to Sec.  5E1.3 (Special Assessment) relating to the amount 
of the special assessment to be imposed in a given case.
    3. Amendment: Section 2B1.1 is amended in subsection (b)(2) by 
striking the following:
    ``(Apply the greatest) If the offense--
    (A) (i) involved 10 or more victims; or (ii) was committed through 
mass-marketing, increase by 2 levels;
    (B) involved 50 or more victims, increase by 4 levels; or
    (C) involved 250 or more victims, increase by 6 levels.'',
    and inserting the following:
    ``(Apply the greatest) If the offense--
    (A) (i) involved 10 or more victims; (ii) was committed through 
mass-marketing; or (iii) resulted in substantial financial hardship to 
one or more victims, increase by 2 levels;
    (B) resulted in substantial financial hardship to five or more 
victims, increase by 4 levels; or
    (C) resulted in substantial financial hardship to 25 or more 
victims, increase by 6 levels.'';
    in subsection (b)(10)(C) by inserting after ``the offense otherwise 
involved sophisticated means'' the following: ``and the defendant 
intentionally engaged in or caused the conduct constituting 
sophisticated means'';
    and in subsection (b)(16)(B) by inserting ``or'' at the end of 
subdivision (i), and by striking ``; or (iii) substantially endangered 
the solvency or financial security of 100 or more victims''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3(A)(ii) by striking ``(I) means the pecuniary harm 
that was intended to result from the offense; and'' and inserting ``(I) 
means the pecuniary harm that the defendant purposely sought to 
inflict; and'';
    in Note 3(F)(ix) by striking ``there shall be a rebuttable 
presumption that the actual loss attributable to the change in value of 
the security or commodity is the amount determined by--'' and inserting 
``the court in determining loss may use any method that is appropriate 
and practicable under the circumstances. One such method the court may 
consider is a method under which the actual loss attributable to the 
change in value of the security or commodity is the amount determined 
by--'';
    in Note 4 by striking ``50 victims'' and inserting ``10 victims'' 
at subdivision (C)(ii); and by inserting at the end the following new 
subdivision (F):
    ``(F) Substantial Financial Hardship.--In determining whether the 
offense resulted in substantial financial hardship to a victim, the 
court shall consider, among other factors, whether the offense resulted 
in the victim--
    (i) becoming insolvent;
    (ii) filing for bankruptcy under the Bankruptcy Code (title 11, 
United States Code);
    (iii) suffering substantial loss of a retirement, education, or 
other savings or investment fund;
    (iv) making substantial changes to his or her employment, such as 
postponing his or her retirement plans;
    (v) making substantial changes to his or her living arrangements, 
such as relocating to a less expensive home; and
    (vi) suffering substantial harm to his or her ability to obtain 
credit.'';
    in Note 9 by striking ``Sophisticated Means Enhancement under'' in 
the heading and inserting ``Application of''; and by inserting at the 
end of the heading of subdivision (B) the following: ``under Subsection 
(b)(10)(C)'';
    and in Note 20(A)(vi) by striking both ``or credit record'' and 
``or a damaged credit record''.
    Reason for Amendment: This amendment makes several changes to the 
guideline applicable to economic crimes, Sec.  2B1.1 (Theft, Property 
Destruction, and Fraud), to better account for harm to victims, 
individual culpability, and the offender's intent. This amendment is a 
result of the Commission's multi-year study of Sec.  2B1.1 and related 
guidelines, and follows extensive data collection and analysis relating 
to economic offenses and offenders. Using this Commission data, 
combined with legal analysis and public comment, the Commission 
identified a number of specific areas where changes were appropriate.

Victims Table

    First, the amendment revises the victims table in Sec.  2B1.1(b)(2) 
to specifically incorporate substantial financial hardship to victims 
as a factor in sentencing economic crime offenders. As amended, the 
first tier of the victims table provides for a 2-level enhancement 
where the offense involved 10 or more victims or mass-marketing, or if 
the offense resulted in substantial financial hardship to one or more 
victims. The 4-level enhancement applies if the offense resulted in 
substantial financial hardship to five or more victims, and the 6-level 
enhancement applies if the offense resulted in substantial financial 
hardship to 25 or more victims. As a conforming change, the special 
rule in Application Note 4(C)(ii)(I), pertaining to theft of 
undelivered mail, is also revised to refer to 10 rather than 50 
victims.
    In addition, the amendment adds a non-exhaustive list of factors 
for courts to consider in determining whether the offense caused 
substantial financial hardship. These factors include: becoming 
insolvent; filing for bankruptcy; suffering substantial loss of a 
retirement, education, or other savings or investment fund; making 
substantial changes to employment; making substantial changes to living 
arrangements; or suffering substantial harm to the victim's ability to 
obtain credit. Two conforming changes are also included. First, one 
factor--substantial harm to ability to obtain credit--was previously 
included in Application Note 20(A)(vi) as a potential departure 
consideration. The amendment removes this language from the Application

[[Page 25791]]

Note. Second, the amendment deletes subsection (b)(16)(B)(iii), which 
provided for an enhancement where an offense substantially endangered 
the solvency or financial security of 100 or more victims.
    The Commission continues to believe that the number of victims is a 
meaningful measure of the harm and scope of an offense and can be 
indicative of its seriousness. It is for this reason that the amended 
victims table maintains the 2-level enhancement for offenses that 
involve 10 or more victims or mass marketing. However, the revisions to 
the victims table also reflect the Commission's conclusion that the 
guideline should place greater emphasis on the extent of harm that 
particular victims suffer as a result of the offense. Consistent with 
the Commission's overall goal of focusing more on victim harm, the 
revised victims table ensures that an offense that results in even one 
victim suffering substantial financial harm receives increased 
punishment, while also lessening the cumulative impact of loss and the 
number of victims, particularly in high-loss cases.

Intended Loss

    Second, the amendment revises the commentary at Sec.  2B1.1, 
Application Note 3(A)(ii), which has defined intended loss as 
``pecuniary harm that was intended to result from the offense.'' In 
interpreting this provision, courts have expressed some disagreement as 
to whether a subjective or an objective inquiry is required. Compare 
United States v. Manatau, 647 F.3d 1048 (10th Cir. 2011) (holding that 
a subjective inquiry is required), United States v. Diallo, 710 F.3d 
147, 151 (3d Cir. 2013) (``To make this determination, we look to the 
defendant's subjective expectation, not to the risk of loss to which he 
may have exposed his victims.''), United States v. Confredo, 528 F.3d 
143, 152 (2d Cir. 2008) (remanding for consideration of whether 
defendant had ``proven a subjective intent to cause a loss of less than 
the aggregate amount'' of fraudulent loans), and United States v. 
Sanders, 343 F.3d 511, 527 (5th Cir. 2003) (``our case law requires the 
government prove by a preponderance of the evidence that the defendant 
had the subjective intent to cause the loss that is used to calculate 
his offense level''), with United States v. Innarelli, 524 F.3d 286, 
291 (1st Cir. 2008) (``we focus our loss inquiry for purposes of 
determining a defendant's offense level on the objectively reasonable 
expectation of a person in his position at the time he perpetrated the 
fraud, not on his subjective intentions or hopes'') and United States 
v. Lane, 323 F.3d 568, 590 (7th Cir. 2003) (``The determination of 
intended loss under the Sentencing Guidelines therefore focuses on the 
conduct of the defendant and the objective financial risk to victims 
caused by that conduct'').
    The amendment adopts the approach taken by the Tenth Circuit by 
revising the commentary in Application Note 3(A)(ii) to provide that 
intended loss means the pecuniary harm that ``the defendant purposely 
sought to inflict.'' The amendment reflects the Commission's continued 
belief that intended loss is an important factor in economic crime 
offenses, but also recognizes that sentencing enhancements predicated 
on intended loss, rather than losses that have actually accrued, should 
focus more specifically on the defendant's culpability.

Sophisticated Means

    Third, the amendment narrows the focus of the specific offense 
characteristic at Sec.  2B1.1(b)(10)(C) to cases in which the defendant 
intentionally engaged in or caused conduct constituting sophisticated 
means. Prior to the amendment, the enhancement applied if ``the offense 
otherwise involved sophisticated means.'' Based on this language, 
courts had applied this enhancement on the basis of the sophistication 
of the overall scheme without a determination of whether the 
defendant's own conduct was ``sophisticated.'' See, e.g., United States 
v. Green, 648 F.3d 569, 576 (7th Cir. 2011); United States v. Bishop-
Oyedepo, 480 Fed. App'x 431, 433-34 (7th Cir. 2012); United States v. 
Jenkins-Watt, 574 F.3d 950, 965 (8th Cir. 2009). The Commission 
concluded that basing the enhancement on the defendant's own 
intentional conduct better reflects the defendant's culpability and 
will appropriately minimize application of this enhancement to less 
culpable offenders.

Fraud on the Market

    Finally, the amendment revises the special rule at Application Note 
3(F)(ix) relating to the calculation of loss in cases involving the 
fraudulent inflation or deflation in the value of a publicly traded 
security or commodity. When this special rule was added to the 
guidelines, it established a rebuttable presumption that the specified 
loss calculation methodology provides a reasonable estimate of the 
actual loss in such cases. As amended, the method provided in the 
special rule is no longer the presumed starting point for calculating 
loss in these cases. Instead, the revised special rule states that the 
provided method is one method that courts may consider, but that 
courts, in determining loss, are free to use any method that is 
appropriate and practicable under the circumstances. This amendment 
reflects the Commission's view that the most appropriate method to 
determine a reasonable estimate of loss will often vary in these highly 
complex and fact-intensive cases.
    This amendment, in combination with related revisions to the 
mitigating role guideline at Sec.  3B1.2 (Mitigating Role), reflects 
the Commission's overall goal of focusing the economic crime guideline 
more on qualitative harm to victims and individual offender 
culpability.
    4. Amendment: Section 2D1.1(c) is amended in each of subdivisions 
(5), (6), (7), (8), and (9) by striking the lines referenced to 
Schedule III Hydrocodone;

and in each of subdivisions (10), (11), (12), (13), (14), (15), (16), 
and (17) by striking the lines referenced to Schedule III Hydrocodone, 
and in the lines referenced to Schedule III substances (except Ketamine 
or Hydrocodone) by striking ``or Hydrocodone''.
    The annotation to Sec.  2D1.1(c) captioned ``Notes to Drug Quantity 
Table'' is amended in Note (B) in the last paragraph by striking ``The 
term `Oxycodone (actual)' refers'' and inserting ``The terms 
`Hydrocodone (actual)' and `Oxycodone (actual)' refer''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 8(D), under the heading relating to Schedule I or II 
Opiates, by striking the line referenced to Hydrocodone/
Dihydrocodeinone and inserting the following:

``1 gm of Hydrocodone (actual) = 6700 gm of marihuana'';

in the heading relating to Schedule III Substances (except ketamine and 
hydrocodone) by striking ``and hydrocodone'' both places such term 
appears;

and in the heading relating to Schedule III Hydrocodone by striking the 
heading and subsequent paragraphs as follows:

    ``Schedule III Hydrocodone ****
1 unit of Schedule III hydrocodone = 1 gm of marihuana

**** Provided, that the combined equivalent weight of all Schedule III 
substances (except ketamine), Schedule IV substances (except 
flunitrazepam), and Schedule V substances shall not exceed 2,999.99 
kilograms of marihuana.'';

and in Note 27(C) by inserting after ``methamphetamine,'' the 
following: ``hydrocodone,''.

[[Page 25792]]

    Reason for Amendment: This amendment changes the way the primary 
drug trafficking guideline calculates a defendant's drug quantity in 
cases involving hydrocodone in response to recent administrative 
actions by the Food and Drug Administration and the Drug Enforcement 
Administration. The amendment adopts a marihuana equivalency for 
hydrocodone (1 gram equals 6700 grams of marihuana) based on the weight 
of the hydrocodone alone.
    In 2013 and 2014, the Food and Drug Administration approved several 
new pharmaceuticals containing hydrocodone which can contain up to 
twelve times as much hydrocodone in a single pill than was previously 
available. Separately, in October 2014, the Drug Enforcement 
Administration moved certain commonly-prescribed pharmaceuticals 
containing hydrocodone from the less-restricted Schedule III to the 
more-restricted Schedule II. Among other things, the scheduling doubled 
the statutory maximum term of imprisonment available for trafficking in 
the pharmaceuticals that were previously controlled under Schedule III 
from 10 years to 20 years. The change also rendered obsolete the 
entries in the Drug Quantity Table and Drug Equivalency Table in Sec.  
2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) that set a marihuana equivalency for the pharmaceuticals 
that were previously controlled under Schedule III.
    As a result of these administrative actions, all pharmaceuticals 
that include hydrocodone are now subject to the same statutory 
penalties. There is wide variation in the amount of hydrocodone 
available in these pharmaceuticals and in the amount of other 
ingredients (such as binders, coloring, acetaminophen, etc.) they 
contain. This variation raises significant proportionality issues 
within Sec.  2D1.1, where drug quantity for hydrocodone offenses has 
previously been calculated based on the weight of the entire substance 
that contains hydrocodone or on the number of pills. Neither of these 
calculations directly took into account the amount of actual 
hydrocodone in the pills.
    The amendment addresses these changed circumstances by setting a 
new marihuana equivalency for hydrocodone based on the weight of the 
hydrocodone alone. Without this change, defendants with less actual 
hydrocodone could have received a higher guideline range than those 
with more hydrocodone because pills with less hydrocodone can sometimes 
contain more non-hydrocodone ingredients, leading the lower-dose pills 
to weigh more.
    In setting the marihuana equivalency, the Commission considered: 
Potency of the drug, medical use of the drug, and patterns of abuse and 
trafficking, such as prevalence of abuse, consequences of misuse 
including death or serious bodily injury from use, and incidence of 
violence associated with its trafficking. The Commission noted that the 
Drug Enforcement Administration's rescheduling decision relied in part 
on the close relationship between hydrocodone and oxycodone, a similar 
and commonly-prescribed drug that was already controlled under Schedule 
II. Scientific literature, public comment, and testimony supported the 
conclusion that the potency, medical use, and patterns of abuse and 
trafficking of hydrocodone are very similar to oxycodone. In 
particular, the Commission heard testimony from abuse liability 
specialists and reviewed scientific literature indicating that, in 
studies conducted under standards established by the Food and Drug 
Administration for determining the abuse liability of a particular 
drug, the potencies of hydrocodone and oxycodone when abused are 
virtually identical, even though some physicians who prescribe the two 
drugs in a clinical setting might not prescribe them in equal doses. 
Public comment indicated that both hydrocodone and oxycodone are among 
the top ten drugs most frequently encountered by law enforcement and 
that their methods of diversion and rates of diversion per kilogram of 
available drug are similar. Public comment and review of the scientific 
literature also indicated that the users of the two drugs share similar 
characteristics, and that some users may use them interchangeably, a 
situation which may become more common as the more powerful 
pharmaceuticals recently approved by the Food and Drug Administration 
become available.
    Based on proportionality considerations and the Commission's 
assessment that, for purposes of the drug guideline, hydrocodone and 
oxycodone should be treated equivalently, the amendment adopts a 
marihuana equivalency for hydrocodone (actual) that is the same as the 
existing equivalency for oxycodone (actual): 1 gram equals 6,700 grams 
of marihuana.
    5. Amendment: The Commentary to Sec.  3B1.2 captioned ``Application 
Notes'' is amended in Note 3(A) by inserting after ``that makes him 
substantially less culpable than the average participant'' the 
following: ``in the criminal activity'', by striking ``concerted'' and 
inserting ``the'', by striking ``is not precluded from consideration 
for'' each place such term appears and inserting ``may receive'', by 
striking ``role'' both places such term appears and inserting 
``participation'', and by striking ``personal gain from a fraud offense 
and who had limited knowledge'' and inserting ``personal gain from a 
fraud offense or who had limited knowledge'';

in Note 3(C) by inserting at the end the following new paragraphs:
    ``In determining whether to apply subsection (a) or (b), or an 
intermediate adjustment, the court should consider the following non-
exhaustive list of factors:
    (i) the degree to which the defendant understood the scope and 
structure of the criminal activity;
    (ii) the degree to which the defendant participated in planning or 
organizing the criminal activity;
    (iii) the degree to which the defendant exercised decision-making 
authority or influenced the exercise of decision-making authority;
    (iv) the nature and extent of the defendant's participation in the 
commission of the criminal activity, including the acts the defendant 
performed and the responsibility and discretion the defendant had in 
performing those acts;
    (v) the degree to which the defendant stood to benefit from the 
criminal activity.
    For example, a defendant who does not have a proprietary interest 
in the criminal activity and who is simply being paid to perform 
certain tasks should be considered for an adjustment under this 
guideline.
    The fact that a defendant performs an essential or indispensable 
role in the criminal activity is not determinative. Such a defendant 
may receive an adjustment under this guideline if he or she is 
substantially less culpable than the average participant in the 
criminal activity.'';
    in Note 4 by striking ``concerted'' and inserting ``the criminal'';
    and in Note 5 by inserting after ``than most other participants'' 
the following: ``in the criminal activity''.
    Reason for Amendment: This amendment is a result of the 
Commission's study of Sec.  3B1.2 (Mitigating Role). The Commission 
conducted a review of cases involving low-level offenders, analyzed 
case law, and considered public comment and testimony. Overall, the 
study found that mitigating role is applied inconsistently and more 
sparingly than the Commission intended. In drug cases, the Commission's 
study confirmed that

[[Page 25793]]

mitigating role is applied inconsistently to drug defendants who 
performed similar low-level functions (and that rates of application 
vary widely from district to district). For example, application of 
mitigating role varies along the southwest border, with a low of 14.3 
percent of couriers and mules receiving the mitigating role adjustment 
in one district compared to a high of 97.2 percent in another. 
Moreover, among drug defendants who do receive mitigating role, there 
are differences from district to district in application rates of the 
2-, 3-, and 4-level adjustments. In economic crime cases, the study 
found that the adjustment was often applied in a limited fashion. For 
example, the study found that courts often deny mitigating role to 
otherwise eligible defendants if the defendant was considered 
``integral'' to the successful commission of the offense.
    This amendment provides additional guidance to sentencing courts in 
determining whether a mitigating role adjustment applies. Specifically, 
it addresses a circuit conflict and other case law that may be 
discouraging courts from applying the adjustment in otherwise 
appropriate circumstances. It also provides a non-exhaustive list of 
factors for the court to consider in determining whether an adjustment 
applies and, if so, the amount of the adjustment.
    Section 3B1.2 provides an adjustment of 2, 3, or 4 levels for a 
defendant who plays a part in committing the offense that makes him or 
her ``substantially less culpable than the average participant.'' 
However, there are differences among the circuits about what 
determining the ``average participant'' requires. The Seventh and Ninth 
Circuits have concluded that the ``average participant'' means only 
those persons who actually participated in the criminal activity at 
issue in the defendant's case, so that the defendant's relative 
culpability is determined only by reference to his or her co-
participants in the case at hand. See, e.g., United States v. Benitez, 
34 F.3d 1489, 1498 (9th Cir. 1994); United States v. Cantrell, 433 F.3d 
1269, 1283 (9th Cir. 2006); United States v. DePriest, 6 F.3d 1201, 
1214 (7th Cir. 1993). The First and Second Circuits have concluded that 
the ``average participant'' also includes ``the universe of persons 
participating in similar crimes.'' See United States v. Santos, 357 
F.3d 136, 142 (1st Cir. 2004); see also United States v. Rahman, 189 
F.3d 88, 159 (2d Cir. 1999). Under this latter approach, courts will 
ordinarily consider the defendant's culpability relative both to his 
co-participants and to the typical offender.
    The amendment generally adopts the approach of the Seventh and 
Ninth Circuits, revising the commentary to specify that, when 
determining mitigating role, the defendant is to be compared with the 
other participants ``in the criminal activity.'' Focusing the court's 
attention on the individual defendant and the other participants is 
more consistent with the other provisions of Chapter Three, Part B. 
See, e.g., Sec.  3B1.2 (the adjustment is based on ``the defendant's 
role in the offense''); Sec.  3B1.2, comment. (n.3(C)) (a determination 
about mitigating role ``is heavily dependent upon the facts of the 
particular case''); Ch. 3, Pt. B, intro. comment. (the determination 
about mitigating role ``is to be made on the basis of all conduct 
within the scope of Sec.  1B1.3 (Relevant Conduct)'').
    Next, the amendment addresses cases in which the defendant was 
``integral'' or ``indispensable'' to the commission of the offense. 
Public comment suggested, and a review of case law confirmed, that in 
some cases a defendant may be denied a mitigating role adjustment 
solely because he or she was ``integral'' or ``indispensable'' to the 
commission of the offense. See, e.g., United States v. Skinner, 690 
F.3d 772, 783-84 (6th Cir. 2012) (a ``defendant who plays a lesser role 
in a criminal scheme may nonetheless fail to qualify as a minor 
participant if his role was indispensible or critical to the success of 
the scheme''); United States v. Panaigua-Verdugo, 537 F.3d 722, 725 
(7th Cir. 2008) (defendant ``played an integral part in the 
transactions and therefore did not deserve a minor participant 
reduction''); United States v. Deans, 590 F.3d 907, 910 (8th Cir. 2010) 
(``Numerous decisions have upheld the denial of minor role adjustments 
to defendants who . . . play a critical role''); United States v. 
Carter, 971 F.2d 597, 600 (10th Cir. 1992) (because defendant was 
``indispensible to the completion of the criminal activity . . . to 
debate which one is less culpable than the others . . . is akin to the 
old argument over which leg of a three-legged stool is the most 
important leg.''). However, a finding that the defendant was essential 
to the offense does not alter the requirement, expressed in Note 3(A), 
that the court must assess the defendant's culpability relative to the 
average participant in the offense. Accordingly, the amendment revises 
the commentary to emphasize that ``the fact that a defendant performs 
an essential or indispensable role in the criminal activity is not 
determinative'' and that such a defendant may receive a mitigating role 
adjustment, if he or she is otherwise eligible.
    The amendment also revises two paragraphs in Note 3(A) that 
illustrate how mitigating role interacts with relevant conduct 
principles in Sec.  1B1.3. Specifically, the illustrations provide that 
certain types of defendants are ``not precluded from consideration 
for'' a mitigating role adjustment. The amendment revises these 
paragraphs to state that these types of defendants ``may receive'' a 
mitigating role adjustment. The Commission determined that the double-
negative tone (``not precluded'') may have had the unintended effect of 
discouraging courts from applying the mitigating role adjustment in 
otherwise appropriate circumstances.
    Finally, the amendment provides a non-exhaustive list of factors 
for the court to consider in determining whether to apply a mitigating 
role adjustment and, if so, the amount of the adjustment. The factors 
direct the court to consider the degree to which the defendant 
understood the scope and structure of the criminal activity, 
participated in planning or organizing the criminal activity, and 
exercised decision-making authority, as well as the acts the defendant 
performed and the degree to which he or she stood to benefit from the 
criminal activity. The Commission was persuaded by public comment and a 
detailed review of cases involving low-level offenders, particularly in 
fraud cases, that providing a list of factors will give the courts a 
common framework for determining whether to apply a mitigating role 
adjustment (and, if so, the amount of the adjustment) and will help 
promote consistency.
    The amendment further provides, as an example, that a defendant who 
does not have a proprietary interest in the criminal activity and who 
is simply being paid to perform certain tasks should be considered for 
a mitigating role adjustment.
    6. Amendment: The Commentary to Sec.  2L1.2 captioned ``Application 
Notes'' is amended in Note 4(B) by striking ``not counted as a single 
sentence'' and inserting ``not treated as a single sentence''.
    Section 4A1.1(e) is amended by striking ``such sentence was counted 
as a single sentence'' and inserting ``such sentence was treated as a 
single sentence''.
    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended in Note 5 by striking ``are counted as a single sentence'' and 
inserting ``are treated as a single sentence''; and by striking ``are 
counted as a single prior

[[Page 25794]]

sentence'' and inserting ``are treated as a single prior sentence''.
    Section 4A1.2(a)(2) is amended by striking ``those sentences are 
counted separately or as a single sentence'' and inserting ``those 
sentences are counted separately or treated as a single sentence''; by 
striking ``Count any prior sentence'' and inserting ``Treat any prior 
sentence''; and by striking ``if prior sentences are counted as a 
single sentence'' and inserting ``if prior sentences are treated as a 
single sentence''.
    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended in Note 3 by redesignating Note 3 as Note 3(B), and by 
inserting at the beginning the following:
    `` Application of `Single Sentence' Rule (Subsection (a)(2)).--
    (A) Predicate Offenses.--In some cases, multiple prior sentences 
are treated as a single sentence for purposes of calculating the 
criminal history score under Sec.  4A1.1(a), (b), and (c). However, for 
purposes of determining predicate offenses, a prior sentence included 
in the single sentence should be treated as if it received criminal 
history points, if it independently would have received criminal 
history points. Therefore, an individual prior sentence may serve as a 
predicate under the career offender guideline (see Sec.  4B1.2(c)) or 
other guidelines with predicate offenses, if it independently would 
have received criminal history points. However, because predicate 
offenses may be used only if they are counted ``separately'' from each 
other (see Sec.  4B1.2(c)), no more than one prior sentence in a given 
single sentence may be used as a predicate offense.
    For example, a defendant's criminal history includes one robbery 
conviction and one theft conviction. The sentences for these offenses 
were imposed on the same day, eight years ago, and are treated as a 
single sentence under Sec.  4A1.2(a)(2). If the defendant received a 
one-year sentence of imprisonment for the robbery and a two-year 
sentence of imprisonment for the theft, to be served concurrently, a 
total of 3 points is added under Sec.  4A1.1(a). Because this 
particular robbery met the definition of a felony crime of violence and 
independently would have received 2 criminal history points under Sec.  
4A1.1(b), it may serve as a predicate under the career offender 
guideline.
    Note, however, that if the sentences in the example above were 
imposed thirteen years ago, the robbery independently would have 
received no criminal history points under Sec.  4A1.1(b), because it 
was not imposed within ten years of the defendant's commencement of the 
instant offense. See Sec.  4A1.2(e)(2). Accordingly, it may not serve 
as a predicate under the career offender guideline.'';
    and in Note 3(B) (as so redesignated) by striking ``Counting 
multiple prior sentences as a single sentence'' and inserting 
``Treating multiple prior sentences as a single sentence''; and by 
striking ``and the resulting sentences were counted as a single 
sentence'' and inserting ``and the resulting sentences were treated as 
a single sentence''.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking ``the sentences for the two prior 
convictions will be counted as a single sentence'' and inserting ``the 
sentences for the two prior convictions will be treated as a single 
sentence''.
    Reason for Amendment: This amendment responds to a circuit conflict 
regarding the meaning of the ``single sentence'' rule, set forth in 
subsection (a)(2) of Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History), and its implications for the career 
offender guideline and other guidelines that provide sentencing 
enhancements for predicate offenses.
    When the defendant's criminal history includes two or more prior 
sentences that meet certain criteria specified in Sec.  4A1.2(a)(2), 
those prior sentences are counted as a ``single sentence'' rather than 
separately. Generally, this operates to reduce the cumulative impact of 
prior sentences in determining a defendant's criminal history score. 
Courts, however, are divided over whether this ``single sentence'' rule 
also causes certain prior convictions that ordinarily would qualify as 
predicate offenses under the career offender guideline to be 
disqualified from serving as predicate offenses. See Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1), comment. (n.3).
    In 2010, in King v. United States, the Eighth Circuit held that 
when two or more prior sentences are treated as a single sentence under 
the guidelines, all the criminal history points attributable to the 
single sentence are assigned to only one of the prior sentences--
specifically, the one that was the longest. King, 595 F.3d 844, 852 
(8th Cir. 2010). Accordingly, only that prior sentence may be 
considered a predicate offense for purposes of the career offender 
guideline. Id. at 849, 852.
    In 2014, in United States v. Williams, a panel of the Sixth Circuit 
considered and rejected King, because it permitted the defendant to 
``evade career offender status because he committed more crimes.'' 
Williams, 753 F.3d 626, 639 (6th Cir. 2014) (emphasis in original). See 
also United States v. Cornog, 945 F.2d 1504, 1506 n.3 (11th Cir. 1991) 
(``It would be illogical . . . to ignore a conviction for a violent 
felony just because it happened to be coupled with a nonviolent felony 
conviction having a longer sentence.'').
    After the Williams decision, a different panel of the Eighth 
Circuit agreed with the Sixth Circuit's analysis but was not in a 
position to overrule the earlier panel's decision in King. See Donnell 
v. United States, 765 F.3d 817, 820 (8th Cir. 2014). The Eighth Circuit 
has applied the analysis from King to a case involving the firearms 
guideline and to a case in which the prior sentences were consecutive 
rather than concurrent. See, e.g., Pierce v. United States, 686 F.3d 
529, 533 n.3 (8th Cir. 2012) (firearms); United States v. Parker, 762 
F.3d 801, 808 (8th Cir. 2014) (consecutive sentences). This issue has 
also been addressed by other courts, some which have followed the Sixth 
Circuit's approach in Williams. See, e.g., United States v. Carr, 2013 
WL 4855341 (N.D. Ga. 2013); United States v. Agurs, 2014 WL 3735584 
(W.D. Pa., July 28, 2014). Other decisions have been consistent with 
the Eighth Circuit's approach in King. See, e.g., United States v. 
Santiago, 387 F. App'x 223 (3d Cir. 2010); United States v. McQueen, 
2014 WL 3749215 (E.D. Wash., July 28, 2014).
    The amendment generally follows the Sixth Circuit's approach in 
Williams. It amends the commentary to Sec.  4A1.2 to provide that, for 
purposes of determining predicate offenses, a prior sentence included 
in a single sentence should be treated as if it received criminal 
history points if it independently would have received criminal history 
points. It also provides examples, including an example to illustrate 
the potential impact of the applicable time periods prescribed in Sec.  
4A1.2(e). Finally, Sec. Sec.  4A1.1 (Criminal History Category) and 
4A1.2 are revised stylistically so that sentences ``counted'' as a 
single sentence are referred to instead as sentences ``treated'' as a 
single sentence.
    The amendment ensures that those defendants who have committed more 
crimes, in addition to a predicate offense, remain subject to enhanced 
penalties under certain guidelines such as the career offender 
guideline. Conversely, by clarifying how the single sentence rule 
interacts with the time limits set forth in Sec.  4A1.2(e), the 
amendment provides that when a prior sentence was so remote in time 
that it does not independently receive criminal history points, it 
cannot serve as a predicate offense.

[[Page 25795]]

    7. Amendment: The Commentary to Sec.  1B1.11 captioned 
``Background'' is amended by striking ``144 S. Ct.'' and inserting 
``133 S. Ct.''.
    The Commentary to Sec.  2B4.1 captioned ``Statutory Provisions'' is 
amended by striking ``41 U.S.C. 53, 54'' and inserting ``41 U.S.C. 
8702, 8707''.
    The Commentary to Sec.  2B4.1 captioned ``Background'' is amended 
by striking ``41 U.S.C. 51, 53-54'' and inserting ``41 U.S.C. 8702, 
8707''.
    The Commentary to Sec.  2C1.8 captioned ``Statutory Provisions'' is 
amended by striking ``2 U.S.C.'' and all that follows through ``441k;'' 
and after ``18 U.S.C. 607'' inserting ``; 52 U.S.C. 30109(d), 30114, 
30116, 30117, 30118, 30119, 30120, 30121, 30122, 30123, 30124(a), 
30125, 30126''; and by striking ``Statutory Index (Appendix A)'' and 
inserting ``Appendix A (Statutory Index)''.
    The Commentary to Sec.  2C1.8 captioned ``Application Notes'' is 
amended in Note 1 by striking ``2 U.S.C. 441e(b)'' and inserting ``52 
U.S.C. 30121(b)''; by striking ``2 U.S.C. 431 et seq'' and inserting 
``52 U.S.C. 30101 et seq.''; and by striking ``(2 U.S.C. 431(8) and 
(9))'' and inserting ``(52 U.S.C. 30101(8) and (9))''.
    Section 2D1.11(e)(7) is amended in the line referenced to 
Norpseudoephedrine by striking ``400'' and inserting ``400 G''.
    The Commentary to Sec.  2H2.1 captioned ``Statutory Provisions'' is 
amended by striking ``42 U.S.C. 1973i, 1973j(a), (b)'' and inserting 
``52 U.S.C. 10307, 10308(a), (b)''.
    The Commentary to Sec.  2H4.2 captioned ``Application Notes'' is 
amended in Note 2 by striking ``et. seq.'' and inserting ``et seq.''.
    The Commentary to Sec.  2M3.9 is amended by striking ``Sec.  421'' 
each place such term appears and inserting ``Sec.  3121''; and by 
striking ``Sec.  421(d)'' and inserting ``Sec.  3121(d)''.
    The Commentary following Sec.  3D1.5 captioned ``Illustrations of 
the Operation of the Multiple-Count Rules'' is amended by striking the 
heading as follows:
    ``Illustrations of the Operation of the Multiple-Count Rules'',
    and inserting the following new heading:
    ``Concluding Commentary to Part D of Chapter Three
    Illustrations of the Operation of the Multiple-Count Rules'';
    in Example 1 by striking ``convicted on'' and inserting ``convicted 
of''; and by striking ``$12,000'' and inserting ``$21,000'';
    in Example 2 by striking ``Defendant C'' and inserting ``Defendant 
B''; by striking ``convicted on'' and inserting ``convicted of''; and 
by striking ``offense level for bribery (22)'' and inserting ``offense 
level for bribery (20)'';
    and in Example 3 by striking ``Defendant D'' and inserting 
``Defendant C''; by striking ``$27,000'', ``$12,000'', ``$15,000'', and 
``$20,000'' and inserting ``$1,000'' in each place such terms appear; 
by striking ``$74,000'' and inserting ``$4,000''; and by striking 
``16'' both places such term appears and inserting ``9''.
    The Commentary to Sec.  5E1.2 captioned ``Application Notes'' is 
amended in Note 5 by striking ``2 U.S.C. 437g(d)(1)(D)'' and inserting 
``52 U.S.C. 30109(d)(1)(D)''; and by striking ``2 U.S.C. 441f'' and 
inserting ``52 U.S.C. 30122''.
    Appendix A (Statutory Index) is amended by striking the following 
line references:

``2 U.S.C. Sec.  437g(d) 2C1.8
2 U.S.C. Sec.  439a 2C1.8
2 U.S.C. Sec.  441a 2C1.8
2 U.S.C. Sec.  441a-1 2C1.8
2 U.S.C. Sec.  441b 2C1.8
2 U.S.C. Sec.  441c 2C1.8
2 U.S.C. Sec.  441d 2C1.8
2 U.S.C. Sec.  441e 2C1.8
2 U.S.C. Sec.  441f 2C1.8
2 U.S.C. Sec.  441g 2C1.8
2 U.S.C. Sec.  441h(a) 2C1.8
2 U.S.C. Sec.  441i 2C1.8
2 U.S.C. Sec.  441k 2C1.8'',

    and inserting at the end the following new line references:

``52 U.S.C. Sec.  30109(d) 2C1.8
52 U.S.C. Sec.  30114 2C1.8
52 U.S.C. Sec.  30116 2C1.8
52 U.S.C. Sec.  30117 2C1.8
52 U.S.C. Sec.  30118 2C1.8
52 U.S.C. Sec.  30119 2C1.8
52 U.S.C. Sec.  30120 2C1.8
52 U.S.C. Sec.  30121 2C1.8
52 U.S.C. Sec.  30122 2C1.8
52 U.S.C. Sec.  30123 2C1.8
52 U.S.C. Sec.  30124(a) 2C1.8
52 U.S.C. Sec.  30125 2C1.8
52 U.S.C. Sec.  30126 2C1.8'';

    by striking the following line references:

``42 U.S.C. Sec.  1973i(c) 2H2.1
42 U.S.C. Sec.  1973i(d) 2H2.1
42 U.S.C. Sec.  1973i(e) 2H2.1
42 U.S.C. Sec.  1973j(a) 2H2.1
42 U.S.C. Sec.  1973j(b) 2H2.1
42 U.S.C. Sec.  1973j(c) 2X1.1
42 U.S.C. Sec.  1973aa 2H2.1
42 U.S.C. Sec.  1973aa-1 2H2.1
42 U.S.C. Sec.  1973aa-1a 2H2.1
42 U.S.C. Sec.  1973aa-3 2H2.1
42 U.S.C. Sec.  1973bb 2H2.1
42 U.S.C. Sec.  1973gg-10 2H2.1'',

    and inserting after the line referenced to 50 U.S.C. App. Sec.  
2410 the following new line references:

``52 U.S.C. Sec.  10307(c) 2H2.1
52 U.S.C. Sec.  10307(d) 2H2.1
52 U.S.C. Sec.  10307(e) 2H2.1
52 U.S.C. Sec.  10308(a) 2H2.1
52 U.S.C. Sec.  10308(b) 2H2.1
52 U.S.C. Sec.  10308(c) 2X1.1
52 U.S.C. Sec.  10501 2H2.1
52 U.S.C. Sec.  10502 2H2.1
52 U.S.C. Sec.  10503 2H2.1
52 U.S.C. Sec.  10505 2H2.1
52 U.S.C. Sec.  10701 2H2.1
52 U.S.C. Sec.  20511 2H2.1'';

    and by striking the line referenced to 50 U.S.C. 421 and inserting 
after the line referenced to 50 U.S.C. 1705 the following new line 
reference:

``50 U.S.C. Sec.  3121 2M3.9''.

    Reason for Amendment: This amendment makes certain technical 
changes to the Guidelines Manual.
    First, the amendment sets forth technical changes to reflect the 
editorial reclassification of certain sections in the United States 
Code. Effective February 2014, the Office of the Law Revision Counsel 
transferred provisions relating to voting and elections from titles 2 
and 42 to a new title 52. It also transferred provisions of the 
National Security Act of 1947 from one place to another in title 50. To 
reflect the new section numbers of the reclassified provisions, changes 
are made to--
    (1) the Commentary to Sec.  2C1.8 (Making, Receiving, or Failing to 
Report a Contribution, Donation, or Expenditure in Violation of the 
Federal Election Campaign Act; Fraudulently Misrepresenting Campaign 
Authority; Soliciting or Receiving a Donation in Connection with an 
Election While on Certain Federal Property);
    (2) the Commentary to Sec.  2H2.1 (Obstructing an Election or 
Registration);
    (3) the Commentary to Sec.  2M3.9 (Disclosure of Information 
Identifying a Covert Agent);
    (4) Application Note 5 to Sec.  5E1.2 (Fines for Individual 
Defendants); and
    (5) Appendix A (Statutory Index).
    Second, it makes stylistic and technical changes to the Commentary 
following Sec.  3D1.5 (Determining the Total Punishment) captioned 
``Illustrations of the Operation of the Multiple-Count Rules'' to 
better reflect its purpose as a concluding commentary to Part D of 
Chapter Three.
    Finally, it makes clerical changes to--
    (1) the Background Commentary to Sec.  1B1.11 (Use of Guidelines 
Manual in Effect on Date of Sentencing (Policy Statement)), to correct 
a typographical error in a U.S. Reports citation;
    (2) the Commentary to Sec.  2B4.1 (Bribery in Procurement of Bank 
Loan and Other Commercial Bribery), to correct certain United States 
Code citations to correspond with their respective references in 
Appendix A

[[Page 25796]]

that were revised by Amendment 769 (effective November 1, 2012);
    (3) subsection (e)(7) to Sec.  2D1.11 (Unlawfully Distributing, 
Importing, Exporting or Possessing a Listed Chemical; Attempt or 
Conspiracy), to add a missing measurement unit to the line referencing 
Norpseudoephedrine; and
    (4) Application Note 2 to Sec.  2H4.2 (Willful Violations of the 
Migrant and Seasonal Agricultural Worker Protection Act), to correct a 
typographical error in an abbreviation.

[FR Doc. 2015-10516 Filed 5-4-15; 8:45 am]
 BILLING CODE 2210-40-P