Sentencing Guidelines for United States Courts, 2295-2312 [2016-00766]

Agencies

• United States Sentencing Commission

[Federal Register Volume 81, Number 10 (Friday, January 15, 2016)]
[Notices]
[Pages 2295-2312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00766]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

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

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, the United States Sentencing Commission is considering 
promulgating certain amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice also sets forth a number of 
issues for comment, some of which are set forth together with the 
proposed amendments, and one of which (regarding retroactive 
application of proposed amendments) is set forth in the SUPPLEMENTARY 
INFORMATION portion of this notice.
    The proposed amendments and issues for comment in this notice are 
as follows:
    (1) A multi-part proposed amendment to the Guidelines Manual to 
respond to recently enacted legislation and miscellaneous guideline 
issues, including (A) revisions to Appendix A (Statutory Index) to 
respond to new offenses established by the Uniting and Strengthening 
America by Fulfilling Rights and Ensuring Effective Discipline Over 
Monitoring Act (USA FREEDOM Act) of 2015, Public Law 114-23 (June 2, 
2015), and related issues for comment; (B) revisions to Appendix A 
(Statutory Index) to respond to changes made by the Bipartisan Budget 
Act of 2015, Public Law 114-74 (Nov. 2, 2015), to existing criminal 
statutes, and related issues for comment; (C) a revision to Appendix A 
(Statutory Index) to reference offenses under 18 U.S.C. 1715 (Firearms 
as nonmailable items) to Sec.  2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition) and a revision to Sec.  2K2.1 to 
establish a base offense level for such offenses, and a related issue 
for comment; and (D) a technical amendment to the Background Commentary 
to Sec.  2T1.6 (Failing to Collect or Truthfully Account for and Pay 
Over Tax);
    (2) a two-part proposed amendment to the policy statement 
pertaining to ``compassionate release,'' Sec.  1B1.13 (Reduction in 
Term of Imprisonment as a Result of Motion by Director of Bureau of 
Prisons), including (A) a detailed request for comment on whether any 
changes should be made to the policy statement and (B) a proposed 
amendment illustrating one possible set of changes to the policy 
statement, i.e., to reflect the criteria set forth in the program 
statement used by the Bureau of Prisons;
    (3) a proposed amendment to Sec. Sec.  5B1.3 (Conditions of 
Probation) and 5D1.3 (Conditions of Supervised Release) to revise, 
clarify, and rearrange the provisions in the Guidelines Manual on

[[Page 2296]]

conditions of probation and supervised release, and related issues for 
comment;
    (4) a proposed amendment to Sec.  2E3.1 (Gambling; Animal Fighting 
Offenses) to provide higher penalties for animal fighting offenses and 
to respond to two new offenses relating to attending an animal fighting 
venture that were established by section 12308 of the Agricultural Act 
of 2014, Public Law 113-79 (Feb. 7, 2014), and related issues for 
comment;
    (5) a proposed amendment to the child pornography guidelines, 
Sec. Sec.  2G2.1 (Sexually Exploiting a Minor by Production of Sexually 
Explicit Visual or Printed Material; Custodian Permitting Minor to 
Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage 
in Production), 2G2.2 (Trafficking in Material Involving the Sexual 
Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, 
or Advertising Material Involving the Sexual Exploitation of a Minor; 
Possessing Material Involving the Sexual Exploitation of a Minor with 
Intent to Traffic; Possessing Material Involving the Sexual 
Exploitation of a Minor), and 2G2.6 (Child Exploitation Enterprises), 
to address circuit conflicts and application issues that have arisen 
when applying these guidelines, including issues in (A) application of 
the vulnerable victim adjustment when the offense involves minors who 
are unusually young and vulnerable (such as infants or toddlers) and 
(B) application of the tiered distribution enhancement and, in 
particular, determining the appropriate tier of enhancement to apply 
when the offense involves a peer-to-peer file-sharing program or 
network, and related issues for comment; and
    (6) a multi-part proposed amendment to the guidelines for 
immigration offenses, including (A) revisions to Sec.  2L1.1 
(Smuggling, Transporting, or Harboring an Unlawful Alien) to provide 
options for raising the base offense level for alien smuggling offenses 
and address offenses involving unaccompanied minors in alien smuggling 
offenses, and a related issue for comment, and (B) revisions to Sec.  
2L1.2 (Unlawfully Entering or Remaining in the United States) to (i) 
generally reduce the use of the ``categorical approach'' in applying 
the guidelines by measuring the seriousness of a defendant's prior 
conviction by the length of the sentence imposed on the prior 
conviction rather than by the type of offense (e.g., ``crime of 
violence''); (ii) provide higher alternative base offense levels for 
defendants who have one or more prior convictions for illegal reentry 
offenses; (iii) provide a new tiered enhancement for defendants who 
engage in criminal conduct after reentering the United States; (iv) 
correspondingly reduce the existing tiered enhancement at subsection 
(b)(1) for defendants who had one or more prior convictions before 
being deported; and (v) related issues for comment.

DATES: (1) Written Public Comment.--Written public comment regarding 
the proposed amendments and issues for comment set forth in this 
notice, including public comment regarding retroactive application of 
any of the proposed amendments, should be received by the Commission 
not later than March 21, 2016.
    (2) Public Hearings.--The Commission plans to hold public hearings 
regarding the proposed amendments and issues for comment set forth in 
this notice on February 17, 2016, and March 16, 2016. Further 
information regarding the public hearings, including requirements for 
testifying and providing written testimony, as well as the location, 
time, and scope of the hearings, will be provided by the Commission on 
its Web site at www.ussc.gov.

ADDRESSES: Public comment should be sent to the Commission by 
electronic mail or regular mail. The email address for public comment 
is Public_Comment@ussc.gov. The regular mail address for public comment 
is United States Sentencing Commission, One Columbus Circle NE., Suite 
2-500, Washington, DC 20002-8002, Attention: Public Affairs.

FOR FURTHER INFORMATION CONTACT: Matt Osterrieder, Legislative 
Specialist, (202) 502-4500, pubaffairs@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 courts pursuant to 28 U.S.C. 994(a). The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline 
amendments to the Congress not later than the first day of May each 
year pursuant to 28 U.S.C. 994(p).
    The proposed amendments in this notice are presented in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline or commentary. Bracketed text within a 
proposed amendment indicates a heightened interest on the Commission's 
part in comment and suggestions regarding alternative policy choices; 
for example, a proposed enhancement of [2][4][6] levels indicates that 
the Commission is considering, and invites comment on, alternative 
policy choices regarding the appropriate level of enhancement. 
Similarly, bracketed text within a specific offense characteristic or 
application note means that the Commission specifically invites comment 
on whether the proposed provision is appropriate. Second, the 
Commission has highlighted certain issues for comment and invites 
suggestions on how the Commission should respond to those issues.
    The Commission requests public comment regarding whether, pursuant 
to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any proposed amendment 
published in this notice should be included in subsection (d) of Sec.  
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range (Policy Statement)) as an amendment that may be applied 
retroactively to previously sentenced defendants. The Commission lists 
in Sec.  1B1.10(d) the specific guideline amendments that the court may 
apply retroactively under 18 U.S.C. 3582(c)(2). The background 
commentary to Sec.  1B1.10 lists the purpose of the amendment, the 
magnitude of the change in the guideline range made by the amendment, 
and the difficulty of applying the amendment retroactively to determine 
an amended guideline range under Sec.  1B1.10(b) as among the factors 
the Commission considers in selecting the amendments included in Sec.  
1B1.10(d). To the extent practicable, public comment should address 
each of these factors.
    Publication of a proposed amendment requires the affirmative vote 
of at least three voting members and is deemed to be a request for 
public comment on the proposed amendment. See Rules 2.2 and 4.4 of the 
Commission's Rules of Practice and Procedure. In contrast, the 
affirmative vote of at least four voting members is required to 
promulgate an amendment and submit it to Congress. See Rule 2.2; 28 
U.S.C. 994(p).
    Additional information pertaining to the proposed amendments 
described in this notice may be accessed through the Commission's Web 
site at www.ussc.gov

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

Patti B. Saris,
Chair.

1. Miscellaneous

    Synopsis of Proposed Amendment: This proposed amendment responds to 
recently enacted legislation and miscellaneous guideline issues.

[[Page 2297]]

A. USA FREEDOM Act of 2015

    Part A of the proposed amendment responds to the Uniting and 
Strengthening America by Fulfilling Rights and Ensuring Effective 
Discipline Over Monitoring Act (USA FREEDOM Act) of 2015, Pub. L. 114-
23 (June 2, 2015), which, among other things, set forth changes to 
statutes related to maritime navigation and provided new and expanded 
criminal offenses to implement certain provisions in international 
conventions relating to maritime and nuclear terrorism. The Act also 
added these new offenses to the list of offenses specifically 
enumerated at 18 U.S.C. 2332b(g)(5) as federal crimes of terrorism.
    The USA FREEDOM Act created a new criminal offense at 18 U.S.C. 
2280a (Violence against maritime navigation and maritime transport 
involving weapons of mass destruction) to prohibit certain terrorism 
acts and threats against maritime navigation committed in a manner that 
causes or is likely to cause death, serious injury, or damage, when the 
purpose of the conduct is to intimidate a population or to compel a 
government or international organization to do or abstain from doing 
any act. The prohibited acts include (i) the use against or on a ship, 
or discharge from a ship, of any explosive or radioactive material, 
biological, chemical, or nuclear weapon or other nuclear explosive 
device; (ii) the discharge from a ship of oil, liquefied natural gas, 
or other hazardous or noxious substance; (iii) any use of a ship that 
causes death or serious injury or damage; and (iv) the transportation 
aboard a ship of any explosive or radioactive material. Section 2280a 
also prohibits the transportation on board a ship of any biological, 
chemical or nuclear weapon or other nuclear explosive device, and any 
components, delivery means, or materials for a nuclear weapon or other 
nuclear explosive device, under specified circumstances, but this 
conduct does not contain a mens rea requirement. Further, section 2280a 
prohibits the transportation onboard a ship of a person who committed 
an offense under section 2280 or 2280a, with the intent of assisting 
that person evade criminal prosecution. The penalties for violations of 
section 2280a are a fine, imprisonment for no more than 20 years, or 
both, or, if the death of a person results, imprisonment for any term 
of years or life. Section 2280a also prohibits threats to commit the 
offenses not related to transportation on board a ship and provides a 
penalty of imprisonment of up to five years.
    Part A of the proposed amendment addresses these new offenses at 
section 2280a by referencing them in Appendix A (Statutory Index) to 
the following Chapter Two guidelines: Sec. Sec.  2A1.1 (First Degree 
Murder); 2A1.2 (Second Degree Murder); 2A1.3 (Voluntary Manslaughter); 
2A1.4 (Involuntary Manslaughter); 2A2.1 (Assault with Intent to Commit 
Murder; Attempted Murder); 2A2.2 (Aggravated Assault), 2A2.3 (Assault); 
2A6.1 (Threatening or Harassing Communications); 2B1.1 (Fraud); 2B3.2 
(Extortion); 2K1.3 (Unlawful Receipt, Possession, or Transportation of 
Explosive Materials; Prohibited Transactions Involving Explosive 
Materials); 2K1.4 (Arson); 2M5.2 (Exportation of Arms, Munitions, or 
Military Equipment or Services Without Required Validated Export 
License); 2M5.3 (Providing Material Support or Resources to Designated 
Foreign Terrorist Organizations or Specially Designated Global 
Terrorists, or For a Terrorist Purpose); 2M6.1 (Nuclear, Biological, 
and Chemical Weapons, and Other Weapons of Mass Destruction); 2Q1.1 
(Knowing Endangerment Resulting From Mishandling Hazardous or Toxic 
Substances, Pesticides or Other Pollutants); 2Q1.2 (Mishandling of 
Hazardous or Toxic Substances or Pesticides); 2X1.1 (Conspiracy); 2X2.1 
(Aiding and Abetting); and 2X3.1 (Accessory After the Fact).
    The USA FREEDOM Act also created a new criminal offense at 18 
U.S.C. Sec.  2281a (Additional offenses against maritime fixed 
platforms) to prohibit certain maritime terrorism acts that occur 
either on a fixed platform or to a fixed platform committed in a manner 
that may cause death, serious injury, or damage, when the purpose of 
the conduct is to intimidate a population or to compel a government or 
international organization to do or abstain from doing any act. Section 
2281a prohibits specific conduct, including (i) the use against or 
discharge from a fixed platform, of any explosive or radioactive 
material, or biological, chemical, or nuclear weapon and (ii) the 
discharge from a fixed platform of oil, liquefied natural gas, or 
another hazardous or noxious substance. The penalties for violations of 
section 2281a are a fine, imprisonment for no more than 20 years, or 
both, or, if the death of a person results, imprisonment for any term 
of years or life. Section 2281a also prohibits threats to commit the 
offenses related to acts on or against fixed platforms and provides a 
penalty of imprisonment of up to five years.
    Part A of the proposed amendment amends Appendix A (Statutory 
Index) so the new offenses at 18 U.S.C. 2281a are referenced to 
Sec. Sec.  2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A6.1, 
2B1.1, 2B3.2, 2K1.4, 2M6.1, 2Q1.1, 2Q1.2, and 2X1.1.
    In addition, the USA FREEDOM Act created a new criminal offense at 
18 U.S.C. 2332i that prohibits (i) the possession or production of 
radioactive material or a device with the intent to cause death or 
serious bodily injury or to cause substantial damage to property or the 
environment; and (ii) the use of a radioactive material or a device, or 
the use, damage, or interference with the operation of a nuclear 
facility that causes the release of radioactive material, radioactive 
contamination, or exposure to radiation with the intent (or knowledge 
that such act is likely) to cause death or serious bodily injury or 
substantial damage to property or the environment, or with the intent 
to compel a person, international organization or country to do or 
refrain from doing an act. Section 2332i also prohibits threats to 
commit any such acts. The penalties for violations of section 2332i are 
a fine for not more than $2,000,000 and imprisonment for any term of 
years or life.
    Part A of the proposed amendment amends Appendix A (Statutory 
Index) to reference the new offenses at 18 U.S.C. 2332i to Sec. Sec.  
2A6.1, 2K1.4, 2M2.1 (Destruction of, or Production of Defective, War 
Material, Premises, or Utilities), 2M2.3 (Destruction of, or Production 
of Defective, National Defense Material, Premises, or Utilities), and 
2M6.1.
    Finally, Part A makes clerical changes to Application Note 1 to 
Sec.  2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other 
Weapons of Mass Destruction) to reflect the redesignation of a section 
in the United States Code by the USA FREEDOM Act.
    Part A of the proposed amendment also sets forth two issues for 
comment.

B. Bipartisan Budget Act of 2015

    Part B of the proposed amendment responds to the Bipartisan Budget 
Act of 2015, Pub. L. 114-74 (Nov. 2, 2015), which, among other things, 
amended three existing criminal statutes concerned with fraudulent 
claims under certain Social Security programs.
    The three criminal statutes amended by the Bipartisan Budget Act of 
2015 are sections 208 (Penalties [for fraud involving the Federal Old-
Age and Survivors Insurance Trust Fund]), 811 (Penalties for fraud 
[involving special benefits for certain World War II veterans]), and 
1632 (Penalties for fraud [involving supplemental security income for 
the aged, blind, and

[[Page 2298]]

disabled]) of the Social Security Act (42 U.S.C. 408, 1011, and 1383a, 
respectively). The three amended statutes are currently referenced in 
Appendix A (Statutory Index) of the Guidelines Manual to Sec.  2B1.1 
(Theft, Property Destruction, and Fraud). The Act added new 
subdivisions criminalizing conspiracy to commit fraud for selected 
offense conduct already in the three statutes. For each of the three 
statutes, the new subdivision provides that whoever ``conspires to 
commit any offense described in any of [the] paragraphs'' enumerated 
shall be imprisoned for not more than five years, the same statutory 
maximum penalty applicable to the substantive offense.
    Part B amends Appendix A (Statutory Index) so that sections 408, 
1011, and 1383a of Title 42 are referenced not only to Sec.  2B1.1 but 
also to Sec.  2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered 
by a Specific Office Guideline)).
    Part B of the proposed amendment also includes issues for comment.

C. 18 U.S.C. 1715 (Firearms as Nonmailable Items)

    Section 1715 of title 18, United States Code (Firearms as 
nonmailable items), makes it unlawful to deposit for mailing or 
delivery by the mails pistols, revolvers, and other firearms capable of 
being concealed on the person and declared nonmailable (as prescribed 
by Postal Service regulations). For any violation of section 1715, the 
statutory maximum term of imprisonment is two years. The current 
Guidelines Manual does not provide a guideline reference in Appendix A 
for offenses under section 1715.
    The Department of Justice in its annual letter to the Commission 
has proposed that section 1715 offenses should be assigned a guideline 
reference, base offense level, and appropriate specific offense 
characteristics. The Department indicates that in recent years the 
United States Attorney's Office for the Virgin Islands has brought 
several cases charging section 1715, where firearms were illegally 
brought onto the islands by simply mailing them from mainland United 
States.
    Part C of the proposed amendment amends Appendix A (Statutory 
Index) to reference offenses under section 1715 to Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition). 
It also adds 18 U.S.C. 1715 to subsection (a)(8) of Sec.  2K2.1, 
establishing a base offense level of 6 for such offenses.
    Part C of the proposed amendment also includes an issue for comment 
regarding section 1715 offenses and whether other changes to the 
guidelines are appropriate to address these offenses.

D. Technical Amendment to Sec.  2T1.6

    The Internal Revenue Code (Title 26, United States Code) requires 
employers to withhold from their employees' paychecks money 
representing the employees' personal income and Social Security taxes. 
The Code directs the employer to collect taxes as wages are paid, but 
only requires a periodic payment of such taxes to the IRS. If an 
employer willfully fails to collect, truthfully account for, or pay 
over such taxes, 26 U.S.C. 7202 provides both civil and criminal 
remedies. Section 7202 provides as criminal penalty a term of 
imprisonment with a statutory maximum of five years.
    Section 7202 is referenced in Appendix A (Statutory Index) to Sec.  
2T1.6 (Failing to Collect or Truthfully Account for and Pay Over Tax). 
The Background commentary to Sec.  2T1.6 states that ``[t]he offense is 
a felony that is infrequently prosecuted.'' The Department of Justice 
in its annual letter to the Commission has proposed that the 
``infrequently prosecuted'' statement should be deleted. The Department 
points out that while that statement may have been accurate when the 
relevant commentary was originally written (in 1987), the number of 
prosecutions under section 7202 have since increased substantially. The 
use of Sec.  2T1.6 increased from three cases in 2002 to 46 cases in 
2014. See United States Sentencing Commission, Use of Guidelines and 
Specific Offense Characteristics: Guideline Calculation Based (Fiscal 
Year 2002), at https://www.ussc.gov/research-and-publications/federal-sentencing-statistics/guideline-application-frequencies/guideline-application-frequencies-2002; United States Sentencing Commission, Use 
of Guidelines and Specific Offense Characteristics: Guideline 
Calculation Based (Fiscal Year 2014), at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/guideline-application-frequencies/2014/Use_of_SOC_Guideline_Based.pdf.
    Part D of the proposed amendment amends the Background Commentary 
to Sec.  2T6.1 to delete the sentence that states ``The offense is a 
felony that is infrequently prosecuted.''

Proposed Amendment:

(A) USA FREEDOM Act of 2015

    The Commentary to Sec.  2M6.1 captioned ``Application Notes'' is 
amended in Note 1 by striking ``831(f)(2)'' and inserting 
``831(g)(2)'', and by striking ``831(f)(1)'' and inserting 
``831(g)(1)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. Sec.  2280 the following:
    ``18 U.S.C. Sec.  2280a 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 
2A2.3, 2A6.1, 2B1.1, 2B3.2, 2K1.3, 2K1.4, 2M5.2, 2M5.3, 2M6.1, 2Q1.1, 
2Q1.2, 2X1.1, 2X2.1, 2X3.1'';
    by inserting after the line referenced to 18 U.S.C. Sec.  2281 the 
following:
    ``18 U.S.C. 2281a 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 
2A6.1, 2B1.1, 2B3.2, 2K1.4, 2M6.1, 2Q1.1, 2Q1.2, 2X1.1'';
    and by inserting after the line referenced to 18 U.S.C. 2332h the 
following:
    ``18 U.S.C. 2332i 2A6.1, 2K1.4, 2M2.1, 2M2.3, 2M6.1''.

Issues for Comment:

    1. The USA FREEDOM Act was enacted as a reauthorization of the USA 
PATRIOT Act, Pub. L. 107-56 (October 26, 2001), relating to the 
collection of telephone metadata by various national security agencies. 
Title VII of the Act also amended four existing criminal statutes and 
created three new criminal statutes to implement certain provisions in 
international conventions relating to maritime and nuclear terrorism. 
One of the existing criminal statutes amended by the USA FREEDOM Act 
was 18 U.S.C. 2280. Although the Act did not amend the substantive 
offense conduct in section 2280, it added 19 new definitions and terms 
to the statute and made them applicable to other criminal statutes, 
including the new offenses created by the Act.
    The Commission seeks comment on whether the guidelines should be 
amended to address the changes made by the USA FREEDOM Act. Are the 
existing provisions in the guidelines adequate to address the changes 
to existing criminal statutes and the new offenses created by the Act? 
If not, how should the Commission amend the guidelines to address them?
    2. The proposed amendment would reference the offenses under 18 
U.S.C. 2280a, 18 U.S.C. 2281a, and 18 U.S.C. 2332i to various 
guidelines. The Commission invites comment on offenses under these new 
statutes, including in particular the conduct involved in such offenses 
and the nature

[[Page 2299]]

and seriousness of the harms posed by such offenses. Do the guidelines 
covered by the proposed amendment adequately account for these 
offenses? If not, what revisions to the guidelines would be appropriate 
to account for these offenses? In particular, should the Commission 
provide one or more new alternative base offense levels, specific 
offense characteristics, or departure provisions in one or more of 
these guidelines to better account for these offenses? If so, what 
should the Commission provide?
    In addition, the Commission seeks comment on whether the Commission 
should reference these new offenses to other guidelines instead of, or 
in addition to, the guidelines covered by the proposed amendment. 
Alternatively, should the Commission defer action in response to these 
new offenses this amendment cycle, undertake a broader review of the 
guidelines pertaining to offenses involving terrorism and weapons of 
mass destruction, and include responding to the new offenses as part of 
that broader review?

(B) Bipartisan Budget Act of 2015

    Appendix A (Statutory Index) is amended in each of the lines 
referenced to 42 U.S.C. 408, 1011, and 1383a(a) by inserting ``, 
2X1.1'' at the end.

Issues for Comment:

    1. Part B of the proposed amendment would reference the new 
conspiracy offenses under 42 U.S.C. 408, 1011, and 1383a to Sec.  2X1.1 
(Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Office 
Guideline)). The Commission invites comment on whether the guidelines 
covered by the proposed amendment adequately account for these 
offenses. If not, what revisions to the guidelines would be appropriate 
to account for these offenses?
    2. In addition to the amendments to the criminal statutes described 
above, the Bipartisan Budget Act of 2015 also amended sections 408, 
1011, and 1383a of Title 42 to add increased penalties for certain 
persons who commit fraud offenses under the relevant social security 
programs. The Act included a provision in all three statutes 
identifying such persons as:
    a person who receives a fee or other income for services performed 
in connection with any determination with respect to benefits under 
this title (including a claimant representative, translator, or current 
or former employee of the Social Security Administration), or who is a 
physician or other health care provider who submits, or causes the 
submission of, medical or other evidence in connection with any such 
determination . . . .
    In light of this new provision, a person who meets this criteria 
and is convicted of a fraud offense under one of the three amended 
statutes may be imprisoned for not more than ten years, double the 
otherwise applicable five-year penalty for other offenders. The new 
increased penalties apply to all of the fraudulent conduct in 
subsection (a) of the three statutes.
    The Commission seeks comment on whether the guidelines should be 
amended to address cases involving defendants convicted of a fraud 
offense under one of the three amended statutes and who meet this new 
criteria set forth by the Bipartisan Budget Act of 2015. Are the 
existing provisions in the guidelines, such as the provisions at Sec.  
2B1.1 and the Chapter Three adjustment at Sec.  3B1.3 (Abuse of 
Position of Trust or Use of Special Skill), adequate to address these 
cases? If not, how should the Commission amend the guidelines to 
address them?

(C) 18 U.S.C. 1715 (Firearms as Non-mailable Items)

    Section 2K2.1 is amended in subsection (a)(8) by inserting ``, or 
Sec.  1715'' before the period at the end.
    The Commentary to Sec.  2K2.1 captioned ``Statutory Provisions'' is 
amended by inserting after ``(k)-(o),'' the following: ``1715,''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 1712 the following:
    ``18 U.S.C. 1715 2K2.1''.

Issue for Comment:

    1. Part C of the proposed amendment would reference offenses under 
18 U.S.C. 1715 to Sec.  2K2.1. The Commission invites comment on 
offenses under section 1715, including in particular the conduct 
involved in such offenses and the nature and seriousness of the harms 
posed by such offenses. What guideline or guidelines are appropriate 
for these offenses? Does Sec.  2K2.1 adequately account for these 
offenses? To the extent the Commission does provide a reference to one 
or more guidelines, what revisions, if any, to those guidelines would 
be appropriate to account for offenses under section 1715?

(D) Technical Amendment to Sec.  2T1.6

    The Commentary to Sec.  2T1.6 captioned ``Background'' is amended 
by striking ``The offense is a felony that is infrequently 
prosecuted.''.

2. Compassionate Release

    Synopsis of Proposed Amendment: In August 2015, the Commission 
indicated that one of its policy priorities would be ``possible 
consideration of amending the policy statement pertaining to 
`compassionate release,' Sec.  1B1.13 (Reduction in Term of 
Imprisonment as a Result of Motion by Director of Bureau of Prisons).'' 
See United States Sentencing Commission, ``Notice of Final 
Priorities,'' 80 FR 48957 (Aug. 14, 2015). The Commission is publishing 
this proposed amendment to inform the Commission's consideration of the 
issues related to this policy priority.
    The proposed amendment contains two parts. Part A sets forth a 
detailed request for comment on whether any changes should be made to 
the Commission's policy statement at Sec.  1B1.13 (Reduction in Term of 
Imprisonment as a Result of Motion by Director of Bureau of Prisons). 
Part B illustrates one possible set of changes to the policy statement 
at Sec.  1B1.13.

(A) Request for Public Comment on Whether Any Changes Should Be Made to 
the Commission's Policy Statement at Sec.  1B1.13 (Reduction in Term of 
Imprisonment as a Result of Motion by Director of Bureau of Prisons)

Issue for Comment:

    1. Statutory Provisions Related to Compassionate Release. Section 
3582(c)(1)(A) of title 18, United States Code, authorizes a federal 
court, upon motion of the Director of the Bureau of Prisons, to reduce 
the term of imprisonment of a defendant in certain circumstances, i.e., 
if ``extraordinary and compelling reasons'' warrant such a reduction or 
the defendant is at least 70 years of age and meets certain other 
criteria. Such a reduction must be consistent with applicable policy 
statements issued by the Sentencing Commission. See 18 U.S.C. 
3582(c)(1); see also 28 U.S.C. 994(t) (stating that the Commission, in 
promulgating any such policy statements, ``shall describe what should 
be considered extraordinary and compelling reasons for sentence 
reduction, including the criteria to be applied and a list of specific 
examples'').
    Policy Statement at Sec.  1B1.13. The Commission's policy 
statement, Sec.  1B1.13 (Reduction in Term of Imprisonment as a Result 
of Motion by Director of Bureau of Prisons), provides that 
``extraordinary and compelling reasons'' exist if (1) the defendant is 
suffering from a terminal illness; (2) the defendant is suffering from 
certain permanent physical or medical conditions, or experiencing

[[Page 2300]]

deteriorating physical or mental health because of the aging process; 
or (3) the defendant has a minor child and the defendant's only family 
member capable of caring for the child has died or is incapacitated. 
See Sec.  1B1.13, comment. (n.1(A)(i)-(iii)). In addition, the policy 
statement provides that extraordinary and compelling reasons exist if, 
as determined by the Director of the Bureau of Prisons, there exists in 
the defendant's case an extraordinary and compelling reason other than, 
or in combination with, the reasons described above. See Sec.  1B1.13, 
comment. (n.1(A)(iv)). The policy statement was last amended in 2007 to 
provide the current criteria to be applied and a list of the specific 
circumstances which constitute ``extraordinary and compelling reasons'' 
for compassionate release consideration.
    Bureau of Prisons Program Statement on Compassionate Release. On 
August 12, 2013, the Bureau of Prisons issued a new program statement, 
5050.49, that changes how the Bureau implements section 3582(c)(1)(A). 
Among other things, the new program statement expands and details the 
range of circumstances that the Bureau may consider ``extraordinary and 
compelling reasons'' warranting such a reduction. Under the program 
statement, a sentence reduction may be based on the defendant's medical 
circumstances (e.g., a terminal or debilitating medical condition; see 
5050.49(3)(a)-(b)) or on certain non-medical circumstances (e.g., an 
elderly defendant, the death or incapacitation of the family member 
caregiver, or the incapacitation of the defendant's spouse or 
registered partner; see 5050.49(4),(5),(6)).
    Report of the Department of Justice's Office of the Inspector 
General. In May 2015, the Department of Justice's Office of the 
Inspector General (OIG) released a report on the Bureau of Prisons' 
implementation of the compassionate release program provisions related 
to elderly inmates. See U.S. Department of Justice, Office of the 
Inspector General, The Impact of the Aging Inmate Population on the 
Federal Bureau of Prisons, E-15-05 (May 2015), available at https://oig.justice.gov/reports/2015/e1505.pdf. The report found that while 
aging inmates (age 50 years or older) make up a disproportionate share 
of the inmate population, are more costly to incarcerate (primarily due 
to medical needs), engage in less misconduct while in prison, and have 
a lower rate of re-arrest once released than their younger 
counterparts, ``BOP policies limit the number of aging inmates who can 
be considered for early release and, as a result, few are actually 
released early.'' In addition, the report found that the eligibility 
requirements for both medical and non-medical provisions as applied to 
inmates 65 years or older are ``unclear'' and ``confusing.''
    In light of its review, the OIG recommended that the Bureau of 
Prisons should consider revising its compassionate release program to 
facilitate the release of appropriate elderly inmates. The report 
provided the following specific recommendations, among others: (1) 
Revising the inmate age provisions to define an aging inmate as age 50 
or above; and (2) revising the time-served provision for those inmates 
65 and older without medical conditions to remove the requirement that 
they serve 10 years, and require only that they serve 75 percent of 
their sentence. In April 2015, the Bureau of Prisons responded to a 
draft of the OIG report and concurred with each of the recommendations 
made by the OIG.
    Issue for Comment. The Commission seeks comment whether any changes 
should be made to the Commission's policy statement at Sec.  1B1.13 
(Reduction in Term of Imprisonment as a Result of Motion by Director of 
Bureau of Prisons). Should the Commission amend the current policy 
statement describing what constitutes ``extraordinary and compelling 
reasons'' and, if so, how?
    Should the list of extraordinary and compelling reasons in the 
Guidelines Manual closely track the criteria set forth by the Bureau of 
Prisons in its program statement? Should the Commission develop further 
criteria and examples of what circumstances constitute ``extraordinary 
and compelling reasons''? If so, what specific criteria and examples 
should the Commission provide? Should the Commission further define and 
expand the medical and non-medical criteria provided in the Bureau's 
program statement?
    In addition, the Commission seeks comment on how, if at all, the 
policy statement at Sec.  1B1.13 should be revised to address the 
recommendations in the OIG report. Should the Commission adopt the 
recommendations in the OIG report as part of its revision of the policy 
statement at Sec.  1B1.13? Should the Commission expand upon these 
recommendations to revise the Bureau's requirements that limit the 
availability of compassionate release for aging inmates? Alternatively, 
should the Commission defer action on this issue during this amendment 
cycle to consider any possible changes that the Bureau of Prisons might 
promulgate to its compassionate release program statement in response 
to the OIG report?
    Finally, the Commission adopted the policy statement at Sec.  
1B1.13 to implement the directive in 28 U.S.C. 994(t). As noted above, 
the directive requires the Commission to ``describe what should be 
considered extraordinary and compelling reasons for sentence reduction, 
including the criteria to be applied and a list of specific examples.'' 
The Commission also has authority to promulgate general policy 
statements regarding application of the guidelines or other aspects of 
sentencing that in the view of the Commission would further the 
purposes of sentencing (18 U.S.C. 3553(a)(2)), including, among other 
things, the appropriate use of the sentence modification provisions set 
forth in 18 U.S.C. 3582(c). See 28 U.S.C. 994(a)(2)(C). Under this 
general authority, should the Commission further develop the policy 
statement at Sec.  1B1.13 to provide additional guidance or limitations 
regarding the circumstance in which sentences may be reduced as a 
result of a motion by the Director of the Bureau of Prisons? If so, 
what should the specific guidance or limitations be? For example, 
should the Commission provide that the Director of the Bureau of 
Prisons should not withhold a motion under 18 U.S.C. 3582(c)(1)(A) if 
the defendant meets any of the circumstances listed as ``extraordinary 
and compelling reasons'' in Sec.  1B1.13?

(B) Proposed Amendment

    Synopsis of Proposed Amendment: This part of the proposed amendment 
illustrates one possible set of changes to the Commission's policy 
statement at Sec.  1B1.13. The proposed amendment would revise the list 
of ``extraordinary and compelling reasons'' for compassionate release 
consideration in the Commentary to Sec.  1B1.13 to reflect the criteria 
set forth in the Bureau of Prisons' program statement. The language 
used in this part parallels the language in the Bureau's program 
statement.

Proposed Amendment:

    The Commentary to Sec.  1B1.13 captioned ``Application Notes'' is 
amended in Note 1(A) by striking ``following circumstances'' and 
inserting ``circumstances set forth below''; by redesignating clause 
(iv) as clause (viii); by striking clauses (i) through (iii) and 
inserting the following:
    ``(i) The defendant (I) has been diagnosed with a terminal, 
incurable disease; and (II) has a life expectancy of 18 months or less.
    (ii) The defendant has an incurable, progressive illness.

[[Page 2301]]

    (iii) The defendant has suffered a debilitating injury from which 
he or she will not recover.
    (iv) The defendant meets the following criteria--
    (I) the defendant is at least 65 years old;
    (II) the defendant has served at least 50 percent of his or her 
sentence;
    (III) the defendant suffers from a chronic or serious medical 
condition related to the aging process;
    (IV) the defendant is experiencing deteriorating mental or physical 
health that substantially diminishes his or her ability to function in 
a correctional facility; and
    (V) conventional treatment promises no substantial improvement to 
the defendant's mental health or physical condition.
    (v) The defendant (I) is at least 65 years old; and (II) has served 
at least 10 years or 75 percent of his or her sentence, whichever is 
greater.
    (vi) The death or incapacitation of the family member caregiver of 
the defendant's child.
    [``Incapacitation'' means the family member caregiver suffered a 
severe injury or suffers from a severe illness that renders the 
caregiver incapable of caring for the child. ``Child'' means an 
individual who had not attained the age of 18 years.]
    (vii) The incapacitation of the defendant's spouse or registered 
partner when the defendant would be the only available caregiver for 
the spouse or registered partner.
    [``Incapacitation'' means the spouse or registered partner (I) has 
suffered a serious injury or suffers from a debilitating physical 
illness and the result of the injury or illness is that the spouse or 
registered partner is completely disabled, meaning that the spouse or 
registered partner cannot carry on any self-care and is totally 
confined to a bed or chair; or (II) has a severe cognitive deficit, 
caused by an illness or injury, that has severely affected the spouse's 
or registered partner's mental capacity or function but may not be 
confined to a bed or chair. ``Spouse'' means an individual in a 
relationship with the defendant, where that relationship has been 
legally recognized as a marriage, including a legally-recognized 
common-law marriage. ``Registered partner'' means an individual in 
relationship with the defendant, where the relationship has been 
legally recognized as a civil union or registered domestic 
partnership.]'';
    and in clause (viii), as so redesignated, by striking ``(i), (ii), 
and (iii)'' and inserting ``(i) through (vii)''.

3. Conditions of Probation and Supervised Release

    Synopsis of Proposed Amendment: This proposed amendment revises, 
clarifies, and rearranges the conditions of probation and supervised 
release. It is a result of the Commission's multi-year review of 
federal sentencing practices relating to conditions of probation and 
supervised release. See United States Sentencing Commission, ``Notice 
of Final Priorities,'' 80 FR 48957 (Aug. 14, 2015). It is also informed 
by a series of opinions issued by the Seventh Circuit in recent years.
    Specifically, the Seventh Circuit has found several of the standard 
conditions to be unduly vague, overbroad, or inappropriately applied. 
See, e.g., United States v. Adkins, 743 F.3d 176 (7th Cir. 2014); 
United States v. Goodwin, 717 F.3d 511 (7th Cir. 2013); United States 
v. Quinn, 698 F.3d 651 (7th Cir. 2012); United States v. Siegel, 753 
F.3d 705 (7th Cir. 2014). The Seventh Circuit has also suggested that 
the language of the conditions be revised to be more comprehensible to 
defendants and probation officers, and to contain a stated mens rea 
requirement where one was lacking. United States v. Kappes, 782 F.3d 
828, 848 (7th Cir. 2015) (``We have suggested that sentencing judges 
define the crucial terms in a condition in a way that provides clear 
notice to the defendant (preferably through objective rather than 
subjective terms), and/or includes a mens rea requirement (such as 
intentional conduct). We have further suggested that the judge make 
sure that each condition imposed is simply worded, bearing in mind 
that, with rare exceptions, neither the defendant nor the probation 
officer is a lawyer and that when released from prison the defendant 
will not have a lawyer to consult.'' (quotation and alteration marks 
omitted)).

The Statutory and Guidelines Framework

    When imposing a sentence of probation, the court is required to 
impose certain conditions of probation listed by statute. See 18 U.S.C. 
3563(a). In addition, the court has discretion to impose additional 
conditions of probation ``to the extent that such conditions are 
reasonably related to the factors set forth in sections 3553(a)(1) and 
(a)(2) and to the extent that such conditions involve only such 
deprivations of liberty or property as are reasonably necessary for the 
purposes indicated in section 3553(a)(2).'' See 18 U.S.C. 3563(b). 
Similarly, when imposing a sentence of supervised release, the court is 
required to impose certain conditions of supervised release listed by 
statute, and the court has discretion to impose additional conditions 
of supervised release, to the extent that the additional condition ``is 
reasonably related to the factors set forth in section 3553(a)(1), 
(a)(2)(B), (a)(2)(C), and (a)(2)(D)'' and ``involves no greater 
deprivation of liberty than is reasonably necessary for the purposes 
set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D).'' See 18 
U.S.C. 3583(d). The additional condition of supervised release must 
also be consistent with any pertinent policy statements issued by the 
Sentencing Commission. See 18 U.S.C. 3583(d)(3).
    In addition, the court is required to direct that the probation 
officer provide the defendant with a written statement that sets forth 
all the conditions to which he or she is subject, which must be 
``sufficiently clear and specific to serve as a guide for the 
defendant's conduct and for such supervision as is required.'' See 18 
U.S.C. 3563(d), 3583(f). The Judgment in a Criminal Case Form, AO 245B, 
sets forth a series of mandatory and ``standard'' conditions in 
standardized form and provides space for the court to impose additional 
``standard'' and ``special'' conditions devised by the court.
    The Commission is directed by its organic statute to promulgate 
policy statements on the appropriate use of the conditions of probation 
and supervised release. See 28 U.S.C. 994(a)(2)(B). Sections 5B1.3 
(Conditions of Probation) and 5D1.3 (Conditions of Supervised Release) 
implement this directive. Subsections (a) and (b) of Sec.  5B1.3 set 
forth the conditions of probation that are required by statute. 
Subsections (c), (d), and (e) of Sec.  5B1.3 provide guidance on 
discretionary conditions of probation, which are categorized as 
``standard'' conditions, ``special'' conditions, and ``additional'' 
special conditions, respectively. Subsections (a) through (e) of Sec.  
5D1.3 follow the same structure in setting forth the mandatory 
conditions of supervised release and providing guidance on 
discretionary conditions of supervised release.

The Proposed Changes to Sec. Sec.  5B1.3 and 5D1.3

    The changes made by the proposed amendment would revise, clarify, 
and rearrange the provisions in the Guidelines Manual on conditions of 
probation and supervised release. These changes would not necessarily 
affect the conditions of probation and supervised release as set forth 
in the Judgment in a Criminal Case Form, AO 245B. However, in light of 
the responsibilities

[[Page 2302]]

of the Judicial Conference of the United States and the Administrative 
Office of the United States Courts in this area, the Commission works 
with the Criminal Law Committee and the Probation and Pretrial Services 
Office on these issues and anticipates that the Commission's work on 
this proposed amendment may inform their consideration of possible 
changes to the judgment form.
    In general, the changes are intended to make the conditions more 
focused and precise as well as easier for defendants to understand and 
probation officers to enforce. For some conditions that do not have a 
mens rea standard, a ``knowing'' standard is inserted.
    First, the proposed amendment amends the ``mandatory'' conditions 
set forth in subsection (a) of Sec. Sec.  5B1.3 and 5D1.3. It inserts 
new language directing that, if there is a court-established payment 
schedule for making restitution or paying a special assessment, the 
defendant shall adhere to the schedule. See 18 U.S.C. 3572(d). This new 
language is similar to paragraph (14) of the ``standard'' conditions; 
accordingly, paragraph (14) of the ``standard'' conditions is deleted, 
as described below.
    Second, the proposed amendment amends the ``standard'' conditions 
set forth in subsection (c) of Sec. Sec.  5B1.3 and 5D1.3. Paragraphs 
(1)-(3), (5)-(6), and (9)-(13) are revised, clarified, and rearranged 
into a new set of paragraphs (1) through (12). A new paragraph (13) is 
added, which provides that the defendant ``must follow the instructions 
of the probation officer related to the conditions of supervision.''
    Several provisions are moved from the ``standard'' conditions list 
to the ``special'' conditions list, or vice versa. Specifically, 
paragraph (1) of the ``special'' conditions list (relating to 
possession of a firearm or dangerous weapon) is moved to the 
``standard'' conditions list. Paragraphs (4) and (7) of the 
``standard'' conditions list (relating to support of dependents and 
child support, and alcohol use, respectively) are moved to the 
``special'' conditions list. In addition, as mentioned above, paragraph 
(14) on the ``standard'' conditions list (relating to payment of 
special assessment) is incorporated into the ``mandatory'' conditions 
list. Finally, paragraph (8) of the ``standard'' conditions list 
(relating to frequenting places where controlled substances are 
trafficked) is deleted.
    Third, the proposed amendment adds two new provisions to the 
``special'' conditions set forth in subsection (d) of Sec. Sec.  5B1.3 
and 5D1.3. The first new provision, based on paragraph (7) of the 
``standard'' conditions, would specify that the defendant must not use 
or possess alcohol. The second new provision, based on paragraph (4) of 
the ``standard'' conditions, would specify that, if the defendant has 
one or more dependents, the defendant must support his or her 
dependents; and if the defendant is ordered by the government to make 
child support payments or to make payments to support a person caring 
for a child, the defendant must make the payments and comply with the 
other terms of the order.
    Issues for comment are also included.

Proposed Amendment:

    Section 5B1.3 is amended in subsection (a)(6) by inserting before 
the semicolon at the end the following: ``. If there is a court-
established payment schedule for making restitution or paying the 
assessment (see 18 U.S.C. 3572(d)), the defendant shall adhere to the 
schedule'';
    in subsection (b) by striking ``The'' and inserting the following:

``Discretionary Conditions

    The'';
    in subsection (c) by striking ``(Policy Statement) The'' and 
inserting the following:

`` `Standard' Conditions (Policy Statement)

    The'';
    and by striking paragraphs (1) through (14) and inserting the 
following:
    ``(1) The defendant must report to the probation office in the 
federal judicial district where he or she is authorized to reside 
within 72 hours of the time the defendant was sentenced, unless the 
probation officer tells the defendant to report to a different 
probation office or within a different time frame.
    (2) After initially reporting to the probation office, the 
defendant will receive instructions from the court or the probation 
officer about how and when to report to the probation officer, and the 
defendant must report to the probation officer as instructed.
    (3) The defendant must not knowingly leave the federal judicial 
district where he or she is authorized to reside without first getting 
permission from the court or the probation officer.
    (4) The defendant must [answer truthfully][be truthful when 
responding to] the questions asked by the probation officer.
    (5) The defendant must live at a place approved by the probation 
officer. If the defendant plans to change where he or she lives or 
anything about his or her living arrangements (such as the people the 
defendant lives with), the defendant must notify the probation officer 
at least 10 calendar days before the change. If notifying the probation 
officer in advance is not possible due to unanticipated circumstances, 
the defendant must notify the probation officer within 72 hours of 
becoming aware of a change or expected change.
    (6) The defendant must allow the probation officer to visit the 
defendant at his or her home or elsewhere, and the defendant must 
permit the probation officer to take any items prohibited by the 
conditions of the defendant's supervision that he or she observes in 
plain view.
    (7) The defendant must work full time (at least 30 hours per week) 
at a lawful type of employment, unless the probation officer excuses 
the defendant from doing so. If the defendant does not have full-time 
employment he or she must try to find full-time employment, unless the 
probation officer excuses the defendant from doing so. If the defendant 
plans to change where the defendant works or anything about his or her 
work (such as the position or the job responsibilities), the defendant 
must notify the probation officer at least 10 calendar days before the 
change. If notifying the probation officer in advance is not possible 
due to unanticipated circumstances, the defendant must notify the 
probation officer within 72 hours of becoming aware of a change or 
expected change.
    (8) The defendant must not communicate or interact with someone the 
defendant knows is engaged in criminal activity. If the defendant knows 
someone has been convicted of a felony, the defendant must not 
knowingly communicate or interact with that person without first 
getting the permission of the probation officer.
    (9) If the defendant is arrested or has any official contact with a 
law enforcement officer, the defendant must notify the probation 
officer within 72 hours.
    (10) The defendant must not own, possess, or have access to a 
firearm, ammunition, destructive device, or dangerous weapon (i.e., 
anything that was designed, or was modified for, the specific purpose 
of causing bodily injury or death to another person, such as nunchakus 
or tasers).
    (11) The defendant must not act or make any agreement with a law 
enforcement agency to act as a confidential human source or informant 
without first getting the permission of the court.
    (12) If the probation officer determines that the defendant poses a 
risk to another person (including an organization), the probation 
officer may require the defendant to tell the person

[[Page 2303]]

about the risk and the defendant must comply with that instruction. The 
probation officer may contact the person and confirm that the defendant 
has told the person about the risk.
    (13) The defendant must follow the instructions of the probation 
officer related to the conditions of supervision.'';
    and in subsection (d) by striking ``(Policy Statement) The'' and 
inserting the following:
    `` `Special' Conditions (Policy Statement)
    The'';
    by striking paragraph (1) and inserting the following:

``(1) Support of Dependents

    If the defendant--
    (A) has one or more dependents--a condition specifying that the 
defendant must support his or her dependents; and
    (B) is ordered by the government to make child support payments or 
to make payments to support a person caring for a child--a condition 
specifying that the defendant must make the payments and comply with 
the other terms of the order.'';
    and in paragraph (4) by striking ``Program Participation'' in the 
heading; by inserting ``(A)'' before ``a condition requiring''; and by 
inserting ``; and (B) a condition specifying that the defendant must 
not use or possess alcohol'' before the period at the end.
    Section 5D1.3 is amended in subsection (a)(6) by inserting before 
the semicolon at the end the following: ``. If there is a court-
established payment schedule for making restitution or paying the 
assessment (see 18 U.S.C. 3572(d)), the defendant shall adhere to the 
schedule'';
    in subsection (b) by striking ``The'' and inserting the following:

``Discretionary Conditions

    The'';
    in subsection (c) by striking ``(Policy Statement) The'' and 
inserting the following:
    `` `Standard' Conditions (Policy Statement)
    The'';
    and by striking paragraphs (1) through (15) and inserting the 
following:
    ``(1) The defendant must report to the probation office in the 
federal judicial district where he or she is authorized to reside 
within 72 hours of release from imprisonment, unless the probation 
officer tells the defendant to report to a different probation office 
or within a different time frame.
    (2) After initially reporting to the probation office, the 
defendant will receive instructions from the court or the probation 
officer about how and when to report to the probation officer, and the 
defendant must report to the probation officer as instructed.
    (3) The defendant must not knowingly leave the federal judicial 
district where he or she is authorized to reside without first getting 
permission from the court or the probation officer.
    (4) The defendant must [answer truthfully][be truthful when 
responding to] the questions asked by the probation officer.
    (5) The defendant must live at a place approved by the probation 
officer. If the defendant plans to change where he or she lives or 
anything about his or her living arrangements (such as the people the 
defendant lives with), the defendant must notify the probation officer 
at least 10 calendar days before the change. If notifying the probation 
officer in advance is not possible due to unanticipated circumstances, 
the defendant must notify the probation officer within 72 hours of 
becoming aware of a change or expected change.
    (6) The defendant must allow the probation officer to visit the 
defendant at his or her home or elsewhere, and the defendant must 
permit the probation officer to take any items prohibited by the 
conditions of the defendant's supervision that he or she observes in 
plain view.
    (7) The defendant must work full time (at least 30 hours per week) 
at a lawful type of employment, unless the probation officer excuses 
the defendant from doing so. If the defendant does not have full-time 
employment he or she must try to find full-time employment, unless the 
probation officer excuses the defendant from doing so. If the defendant 
plans to change where the defendant works or anything about his or her 
work (such as the position or the job responsibilities), the defendant 
must notify the probation officer at least 10 calendar days before the 
change. If notifying the probation officer in advance is not possible 
due to unanticipated circumstances, the defendant must notify the 
probation officer within 72 hours of becoming aware of a change or 
expected change.
    (8) The defendant must not communicate or interact with someone the 
defendant knows is engaged in criminal activity. If the defendant knows 
someone has been convicted of a felony, the defendant must not 
knowingly communicate or interact with that person without first 
getting the permission of the probation officer.
    (9) If the defendant is arrested or has any official contact with a 
law enforcement officer, the defendant must notify the probation 
officer within 72 hours.
    (10) The defendant must not own, possess, or have access to a 
firearm, ammunition, destructive device, or dangerous weapon (i.e., 
anything that was designed, or was modified for, the specific purpose 
of causing bodily injury or death to another person, such as nunchakus 
or tasers).
    (11) The defendant must not act or make any agreement with a law 
enforcement agency to act as a confidential human source or informant 
without first getting the permission of the court.
    (12) If the probation officer determines that the defendant poses a 
risk to another person (including an organization), the probation 
officer may require the defendant to tell the person about the risk and 
the defendant must comply with that instruction. The probation officer 
may contact the person and confirm that the defendant has told the 
person about the risk.
    (13) The defendant must follow the instructions of the probation 
officer related to the conditions of supervision.
    (14) The defendant shall notify the probation officer of any 
material change in the defendant's economic circumstances that might 
affect the defendant's ability to pay any unpaid amount of restitution, 
fines, or special assessments.'';
    and in subsection (d) by striking ``(Policy Statement) The'' and 
inserting the following:
    `` `Special' Conditions (Policy Statement)
    The'';
    by striking paragraph (1) and inserting the following:

``(1) Support of Dependents

    If the defendant--
    (A) has one or more dependents--a condition specifying that the 
defendant must support his or her dependents; and
    (B) is ordered by the government to make child support payments or 
to make payments to support a person caring for a child -- a condition 
specifying that the defendant must make the payments and comply with 
the other terms of the order.'';

and in paragraph (4) by striking ``Program Participation'' in the 
heading; by inserting ``(A)'' before ``a condition requiring''; and by 
inserting ``; and (B) a condition specifying that the defendant must 
not use or possess alcohol'' before the period at the end.

Issues for Comment:

    1. The Commission seeks comment on the bracketed options in 
paragraph (3) of the ``special'' conditions, which would

[[Page 2304]]

become (4) under the proposed amendment. Specifically, the proposed 
amendment brackets whether the defendant should ``answer truthfully'' 
the questions of the probation officer or, instead, should ``be 
truthful when responding to'' the questions of the probation officer. 
The Commission seeks comment on the policy implications and the Fifth 
Amendment implications of each of these bracketed options. Which 
option, if any, is appropriate? Should the Commission clarify that an 
offender's legitimate invocation of the Fifth Amendment privilege 
against self-incrimination in response to a probation officer's 
question shall not be considered a violation of this special condition?
    2. The Commission seeks comment on the standard condition of 
supervised release in Sec.  5D1.3(c)(15), which states that the 
defendant ``shall notify the probation officer of any material change 
in the defendant's economic circumstances that might affect the 
defendant's ability to pay any unpaid amount of restitution, fines, or 
special assessments.'' Under the proposed amendment, this would remain 
a standard condition and would be redesignated as subsection (c)(14). 
The Commission seeks comment on whether this condition should be made a 
special condition rather than a standard condition.

4. Animal Fighting

    Synopsis of Proposed Amendment: This proposed amendment revises 
Sec.  2E3.1 (Gambling; Animal Fighting Offenses) to provide higher 
penalties for animal fighting offenses and to respond to two new 
offenses, relating to attending an animal fighting venture, established 
by section 12308 of the Agricultural Act of 2014, Public Law 113-79 
(Feb. 7, 2014).
    Animal fighting ventures are prohibited by the Animal Welfare Act, 
7 U.S.C. 2156. Under that statute, an ``animal fighting venture'' is an 
event that involves a fight between at least two animals for purposes 
of sport, wagering, or entertainment. See 7 U.S.C. 2156(g)(1). Section 
2156 prohibits a range of conduct relating to animal fighting ventures, 
including making it unlawful to knowingly--
     sponsor or exhibit an animal in an animal fighting 
venture, see Sec.  2156(a)(1);
     sell, buy, possess, train, transport, deliver, or receive 
an animal for purposes of having the animal participate in an animal 
fighting venture, see Sec.  2156(b);
     advertise an animal (or a sharp instrument designed to be 
attached to the leg of a bird) for use in an animal fighting venture or 
promoting or in any other manner furthering an animal fighting venture, 
see Sec.  2156(c); and
     sell, buy, transport, or deliver a sharp instrument 
designed to be attached to the leg of a bird for use in an animal 
fighting venture, see Sec.  2156(e).
    The criminal penalties for violations of section 2156 are provided 
in 18 U.S.C. 49. For any violation of section 2156 listed above, the 
statutory maximum term of imprisonment is 5 years. See 18 U.S.C. 49(a).
    However, two new types of animal fighting offenses were added by 
the Agricultural Act of 2014. They make it unlawful to knowingly--
     attend an animal fighting venture, see Sec.  
2156(a)(2)(A); or
     cause an individual under 16 to attend an animal fighting 
venture, see Sec.  2156(a)(2)(B).
    The statutory maximum is 3 years if the offense of conviction is 
causing an individual under 16 to attend an animal fighting venture, 
see 18 U.S.C. 49(c), and 1 year if the offense of conviction is 
attending an animal fighting venture, see 18 U.S.C. 49(b).
    All offenses under section 2156 are referenced in Appendix A 
(Statutory Index) to Sec.  2E3.1 (Gambling Offenses; Animal Fighting 
Offenses). Under the penalty structure of that guideline, a defendant 
convicted of an animal fighting offense receives a base offense level 
of 12 if the offense involved gambling--specifically, if the offense 
was engaging in a gambling business, transmitting wagering information, 
or part of a commercial gambling operation--and a base offense level of 
10 otherwise. The guideline contains no specific offense 
characteristics. There is an upward departure provision if an animal 
fighting offense involves exceptional cruelty.

Higher Penalties for Animal Fighting Offenses

    First, the proposed amendment revises Sec.  2E3.1 to provide a base 
offense level of [14][16] if the offense involved an animal fighting 
venture.
    In addition, it revises the existing upward departure provision to 
cover not only offenses involving exceptional cruelty but also offenses 
involving animal fighting on an exceptional scale.

New Offenses Relating to Attending an Animal Fighting Venture

    Next, the proposed amendment responds to the two new offenses 
relating to attendance at an animal fighting venture. It establishes 
new base offense levels for such offenses. Specifically, a base offense 
level of [8][10] in Sec.  2E3.1 would apply if the defendant was 
convicted under section 2156(a)(2)(B) (causing an individual under 16 
to attend an animal fighting venture). The class A misdemeanor at 
section 2156(a)(2)(A) (attending an animal fighting venture) would not 
be referenced in Appendix A (Statutory Index) to Sec.  2E3.1; it would 
receive a base offense level of 6 in Sec.  2X5.2 (Class A Misdemeanors 
(Not Covered by Another Specific Offense Guideline)).
    Issues for comment are also included.

Proposed Amendment:

    Section 2E3.1 is amended in subsection (a) by striking subsection 
(a)(2); by redesignating subsections (a)(1) and (a)(3) as subsections 
(a)(2) and (a)(4), respectively; by striking ``or'' in subsection 
(a)(2), as so redesignated; by inserting before subsection (a)(2) (as 
so redesignated) the following new subsection (a)(1):
    ``(1) [14][16], if the offense involved an animal fighting venture, 
except as provided in subdivision (3) below;'';
    and by inserting before subsection (a)(4), as so redesignated, the 
following new subsection (b)(3):
    ``(3) [8][10], if the defendant was convicted under 7 U.S.C. 
2156(a)(2)(B); or''.
    The Commentary to Sec.  2E3.1 captioned ``Statutory Provisions'' is 
amended by inserting after ``7 U.S.C. 2156'' the following: ``(felony 
provisions only)''.
    The Commentary to Sec.  2E3.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``If the offense involved extraordinary 
cruelty to an animal that resulted in, for example, maiming or death to 
an animal, an upward departure may be warranted.'', and inserting 
``There may be cases in which the offense level determined under this 
guideline substantially understates the seriousness of the offense. In 
such cases, an upward departure may be warranted. For example, an 
upward departure may be warranted if (A) the offense involved 
extraordinary cruelty to an animal; or (B) the offense involved animal 
fighting on an exceptional scale (such as an offense involving an 
unusually large number of animals).''.
    Appendix A (Statutory Index) is amended in the line referenced to 7 
U.S.C. 2156 by inserting after ``Sec.  2156'' the following: ``(felony 
provisions only)''.

Issues for Comment:

    1. The Commission seeks comment on offenses involving animal 
fighting. How prevalent are these offenses, and do the guidelines 
adequately address these offenses? If not, how should the

[[Page 2305]]

Commission revise the guidelines to provide appropriate penalties in 
such cases?
    What, if any, aggravating and mitigating factors are involved in 
these offenses that the guidelines should take into account? Should the 
Commission provide new departure provisions, enhancements, adjustments, 
or minimum offense levels to account for such aggravating or mitigating 
factors? If so, what should the Commission provide, and with what 
penalty levels?
    For example, should the Commission provide an enhancement if the 
defendant possessed a dangerous weapon (including a firearm)? Should 
the Commission provide an enhancement if the defendant was in the 
business of breeding, selling, buying, possessing, training, 
transporting, delivering, or receiving animals for use in animal 
fighting ventures, or brokering such activities?
    2. The proposed amendment includes an upward departure provision if 
the offense involved animal fighting ``on an exceptional scale (such as 
an offense involving an unusually large number of animals).'' What 
additional guidance, if any, should the Commission provide on what 
constitutes animal fighting on an exceptional scale?
    Under the proposed amendment, the factors of exceptional cruelty 
and exceptional scale are departure provisions. Should the Commission 
provide enhancements, rather than departure provisions, for these 
factors? If so, what penalty levels should be provided?
    3. The Commission seeks comment on how the multiple count rules 
should operate when the defendant is convicted of multiple counts of 
animal fighting offenses. How, if at all, should the guideline 
calculation be affected by the presence of multiple counts of 
conviction? For example, should the Commission specify that multiple 
counts involving animal fighting ventures are to be grouped together 
under subsection (d) of Sec.  3D1.2 (Groups of Closely Related Counts)? 
Should the Commission specify that multiple counts involving animal 
fighting ventures are not to be grouped together?

5. Child Pornography Circuit Conflicts

    Synopsis of Proposed Amendment: This proposed amendment addresses 
circuit conflicts and application issues that have arisen when applying 
the guidelines to child pornography offenses. One of the issues 
typically arises under both the child pornography production guideline 
and the child pornography distribution guideline when the offense 
involves victims who are unusually young and vulnerable. The other two 
issues typically arise when the offense involves a peer-to-peer file-
sharing program or network. These issues were noted by the Commission 
in its 2012 report to Congress on child pornography offenses. See 
United States Sentencing Commission, ``Report to the Congress: Federal 
Child Pornography Offenses'' at 33-35 (2012), available at https://www.ussc.gov/news/congressional-testimony-and-reports/sex-offense-topics/report-congress-federal-child-pornography-offenses.

Offenses Involving Unusually Young and Vulnerable Minors

    First, the proposed amendment responds to differences among the 
circuits in cases in which the offense involves minors who are 
unusually young and vulnerable (such as infants or toddlers). The 
production guideline provides a 4-level enhancement if the offense 
involved a minor who had not attained the age of 12 years and a 2-level 
enhancement if the minor had not attained the age of 16 years. See 
Sec.  2G2.1(b)(1). A similar tiered enhancement is contained in Sec.  
2G2.6 (Child Exploitation Enterprises). See Sec.  2G2.6(b)(1). The non-
production guideline provides a 2-level enhancement if the material 
involved a prepubescent minor or a minor who had not attained the age 
of 12 years. See Sec.  2G2.2(b)(2).
    These three guidelines do not provide a further enhancement for 
cases in which the victim was unusually young and vulnerable. However, 
the adjustment at Sec.  3A1.1(b)(1) provides a 2-level increase if the 
defendant knew or should have known that the victim was a ``vulnerable 
victim,'' i.e., a victim ``who is unusually vulnerable due to age, 
physical or mental condition, or who is otherwise particularly 
susceptible to the criminal conduct.'' See Sec.  3A1.1, comment. (n.2). 
The Commentary further provides:
    Do not apply subsection (b) if the factor that makes the person a 
vulnerable victim is incorporated in the offense guideline. For 
example, if the offense guideline provides an enhancement for the age 
of the victim, this subsection would not be applied unless the victim 
was unusually vulnerable for reasons unrelated to age.
    See Sec.  3A1.1, comment. (n.2).
    There are differences among the circuits over whether the 
vulnerable victim adjustment applies when the victim is extremely 
young, such as an infant or toddler. The Ninth Circuit has indicated 
that the under-12 enhancement ``does not take especially vulnerable 
stages of childhood into account'' and that, ``[t]hough the 
characteristics of being an infant or toddler tend to correlate with 
age, they can exist independently of age, and are not the same thing as 
merely not having `attained the age of twelve years.' '' United States 
v. Wright, 373 F.3d 935, 943 (9th Cir. 2004). Accordingly, it held, a 
vulnerable victim adjustment may be applied based on extreme youth and 
small physical size, such as when the victim is in the infant or 
toddler stage. Id. Similarly, the Fifth Circuit has stated, ``we do not 
see any logical reason why a `victim under the age of twelve' 
enhancement should bar application of the `vulnerable victim' 
enhancement when the victim is especially vulnerable, even as compared 
to most children under twelve.'' United States v. Jenkins, 712 F.3d 
209, 214 (5th Cir. 2013).
    The Fourth Circuit, in contrast, has indicated that the vulnerable 
victim adjustment may not be applied based solely on extreme youth or 
on factors that are for conditions that ``necessarily are related to . 
. . age.'' United States v. Dowell, 771 F.3d 162, 175 (4th Cir. 2014). 
The line drawn by the under-12 enhancement ``implicitly preclude[s] 
courts from drawing additional lines below that point,'' and ``once the 
offense involves a child under twelve, any additional considerations 
based solely on age simply are not appropriate to the Guidelines 
calculation.'' Id.
    The proposed amendment generally adopts the approach of the Fifth 
and Ninth Circuits. It amends the Commentary in the child pornography 
guidelines to provide that application of the age enhancement does not 
preclude application of the vulnerable victim adjustment. Specifically, 
if the minor's extreme youth and small physical size made the minor 
especially vulnerable compared to most minors under the age of 12 
years, Sec.  3A1.1(b) applies, assuming the mens rea requirement of 
Sec.  3A1.1(b) is also met (i.e., the defendant knew or should have 
known of this vulnerability).

Two Issues Relating to the Tiered Enhancement for Distribution in Sec.  
2G2.2

    Second, the proposed amendment responds to differences among the 
circuits in applying the tiered enhancement for distribution in Sec.  
2G2.2(b)(3), which provides an enhancement ranging from 2 levels to 7 
levels depending on specific factors.
    There are two related issues that typically arise in child 
pornography cases when the offense involves a peer-to-peer file-sharing 
program or network. The first issue is when a participant's use of a 
peer-to-peer file sharing

[[Page 2306]]

program or network warrants at minimum a 2-level enhancement under 
subsection (b)(3)(F). The second issue is when, if at all, the use of a 
peer-to-peer file sharing program or network warrants a 5-level 
enhancement under (b)(3)(B) instead.
(1) The 2-Level Distribution Enhancement at Subsection (b)(3)(F)
    The Fifth, Tenth, and Eleventh Circuits have each held that the 2-
level distribution enhancement applies if the defendant used a file 
sharing program, regardless of whether he did so purposefully, 
knowingly, or negligently. See, e.g., United States v. Baker, 742 F.3d 
618, 621 (5th Cir. 2014) (the enhancement applies ``regardless of the 
defendant's mental state''); United States v. Ray, 704 F.3d 1307, 1312 
(10th Cir. 2013) (the enhancement ``does not require that a defendant 
know about the distribution capability of the program he is using''; 
the enhancement ``requires no particular state of mind''); United 
States v. Creel, 783 F.3d 1357, 1360 (11th Cir. 2015) (``No element of 
mens rea is expressed or implied . . . The definition requires only 
that the `act . . . relates to the transfer of child pornography.' '').
    The Second, Fourth, and Fifth Circuits, in contrast, have held that 
the 2-level distribution enhancement requires a showing that the 
defendant knew, or at least acted in reckless disregard of, the file 
sharing properties of the program. See, e.g., United States v. Baldwin, 
743 F.3d 357, 361 (2nd Cir. 2015) (requiring knowledge); United States 
v. Robinson, 714 F.3d 466, 468 (7th Cir. 2013) (knowledge); United 
States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009) (knowledge or 
reckless disregard).
    Other circuits appear to follow somewhat different approaches. The 
Eighth Circuit has stated that knowledge is required, but knowledge may 
be inferred from the fact that a file sharing program was used, absent 
``concrete evidence'' of ignorance. United States v. Dodd, 598 F.3d 
449, 452 (8th Cir. 2010). The Sixth Circuit has stated in an 
unpublished opinion that there is a ``presumption'' that ``users of 
file-sharing software understand others can access their files.'' 
United States v. Conner, 521 Fed. App'x 493, 499 (6th Cir. 2013).
    The proposed amendment generally adopts the approach of the Second, 
Fourth, and Fifth Circuits. It amends subsection (b)(3)(F) to provide 
that the 2-level enhancement requires ``knowing'' distribution by the 
defendant.
    As a conforming change, the proposed amendment also revises the 2-
level distribution enhancement at Sec.  2G2.1(b)(3) to provide that the 
enhancement requires that the defendant knowingly distributed.
(2) The 5-Level Distribution Enhancement at Subsection (b)(3)(B)
    The 5-level distribution enhancement at subsection (b)(3)(B) 
applies if the offense involved distribution ``for the receipt, or 
expectation of receipt, of a thing of value, but not for pecuniary 
gain.'' The Commentary provides, as one example, that in a case 
involving the bartering of child pornographic material, the ``thing of 
value'' is the material received in exchange.
    The circuits have taken different approaches to this issue. The 
Fifth Circuit has indicated that when the defendant knowingly uses file 
sharing software, the requirements for the 5-level enhancement are 
generally satisfied. See United States v. Groce, 784 F.3d 291, 294 (5th 
Cir. 2015) (``Generally, when a defendant knowingly uses peer-to-peer 
file sharing software . . . he engages in the kind of distribution 
contemplated by'' the 5-level enhancement).
    The Fourth Circuit appears to have a higher standard. It has 
required the government to show that the defendant (1) ``knowingly made 
child pornography in his possession available to others by some 
means''; and (2) did so ``for the specific purpose of obtaining 
something of valuable consideration, such as more pornography.'' United 
States v. McManus, 734 F.3d 315, 319 (4th Cir. 2013).
    The proposed amendment revises subsection (b)(3)(B) to clarify that 
the enhancement applies if the defendant distributed in exchange for 
any valuable consideration. Specifically, this means that the defendant 
agreed to an exchange with another person under which the defendant 
knowingly distributed to that other person for the specific purpose of 
obtaining something of valuable consideration from that other person, 
such as other child pornographic material, preferential access to child 
pornographic material, or access to a child.

Proposed Amendment:

    Section 2G2.1 is amended in subsection (b)(3) by striking ``offense 
involved distribution'' and inserting ``defendant knowingly 
distributed''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended by redesignating Notes 2 through 6 as Notes 3 through 7, 
respectively, and by inserting after Note 1 the following new Note 2:
    ``2. Interaction of Age Enhancement (Subsection (b)(1)) and 
Vulnerable Victim (Sec.  3A1.1(b)).--If subsection (b)(1) applies, 
Sec.  3A1.1(b) ordinarily would not apply unless the minor was 
unusually vulnerable for reasons unrelated to age. See Sec.  3A1.1, 
comment. (n.2). However, if the minor's extreme youth and small 
physical size made the minor especially vulnerable compared to most 
minors under the age of 12 years, and the defendant knew or should have 
known this, apply Sec.  3A1.1(b).''.
    Section 2G2.2 is amended in subsection (b)(3) by striking ``If the 
offense involved'';
    in subparagraphs (A), (C), (D), and (E) by striking 
``Distribution'' and inserting ``If the offense involved 
distribution'';
    in subparagraph (B) by striking ``Distribution for the receipt, or 
expectation of receipt, of a thing of value,'' and inserting ``If the 
defendant distributed in exchange for any valuable consideration,'';
    and in subparagraph (F) by striking ``Distribution'' and inserting 
``If the defendant knowingly distributed,''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 1 by striking the paragraph that begins `` 
`Distribution for the receipt, or expectation of receipt, of a thing of 
value, but not for pecuniary gain' means'' and inserting `` `The 
defendant distributed in exchange for any valuable consideration' means 
the defendant agreed to an exchange with another person under which the 
defendant knowingly distributed to that other person for the specific 
purpose of obtaining something of valuable consideration from that 
other person, such as other child pornographic material, preferential 
access to child pornographic material, or access to a child.'';
    and by redesignating Notes 2 through 7 as Notes 3 through 8, 
respectively, and by inserting after Note 1 the following new Note 2:
    ``2. Interaction of Age Enhancement (Subsection (b)(2)) and 
Vulnerable Victim (Sec.  3A1.1(b)).--If subsection (b)(2) applies, 
Sec.  3A1.1(b) ordinarily would not apply unless the minor was 
unusually vulnerable for reasons unrelated to age. See Sec.  3A1.1, 
comment. (n.2). However, if the minor's extreme youth and small 
physical size made the minor especially vulnerable compared to most 
minors under the age of 12 years, and the defendant knew or should have 
known this, apply Sec.  3A1.1(b).''.
    The Commentary to Sec.  2G2.6 captioned ``Application Notes'' is 
amended by redesignating Notes 2 and 3 as Notes 3

[[Page 2307]]

and 4, respectively, and by inserting after Note 1 the following new 
Note 2:
    ``2. Interaction of Age Enhancement (Subsection (b)(1)) and 
Vulnerable Victim (Sec.  3A1.1(b)).--If subsection (b)(1) applies, 
Sec.  3A1.1(b) ordinarily would not apply unless the minor was 
unusually vulnerable for reasons unrelated to age. See Sec.  3A1.1, 
comment. (n.2). However, if the minor's extreme youth and small 
physical size made the minor especially vulnerable compared to most 
minors under the age of 12 years, and the defendant knew or should have 
known this, apply Sec.  3A1.1(b).''.

Issues for Comment

    1. With respect to the interaction of the age enhancements and the 
vulnerable victim adjustment, the proposed amendment would respond to 
the circuit conflict by clarifying the circumstances under which the 
vulnerable victim adjustment would also apply. Should the Commission 
use a different approach to resolving the circuit conflict? If so, what 
approach should the Commission use to clarify how the age enhancements 
interact with the vulnerable victim adjustment? For example, should the 
Commission revise the tiered age enhancements to provide an additional 
tier, 2 levels higher than the existing tiers, for cases involving 
unusually young and vulnerable victims, such as infants or toddlers? In 
the alternative, should the Commission provide an upward departure 
provision to address this factor?
    Application Note 2 to Sec.  3A1.1 provides that, ``if the offense 
guideline provides an enhancement for the age of the victim, this 
subsection would not be applied unless the victim was unusually 
vulnerable for reasons unrelated to age.'' Should the Commission revise 
this provision to change or clarify how age enhancements in the 
guidelines (whether for child pornography offenses or otherwise) 
interact with the vulnerable victim adjustment? For example, should the 
Commission change ``unless the victim was unusually vulnerable for 
reasons unrelated to age'' to ``unless the victim was unusually 
vulnerable for reasons not based on age per se''?
    2. With respect to the 2-level distribution enhancement, the 
proposed amendment generally adopts the approach of the circuits that 
require ``knowing'' distribution. The Commission seeks comment on 
whether a different approach should be used, particularly in cases 
involving a file sharing program or network. For example, should the 
Commission provide a bright-line rule that use of a file sharing 
program qualifies for the 2-level enhancement, even in cases where the 
defendant was in fact ignorant that use of the program would result in 
files being shared to others?
    3. With respect to the 5-level distribution enhancement, the 
proposed amendment would generally require an agreement with another 
person in which the defendant trades child pornography for other child 
pornography or another thing of value, such as access to a child. The 
Commission seeks comment on whether a different approach should be 
used, particularly in cases involving a file sharing program or 
network. For example, should the Commission provide a bright-line rule 
that use of a file sharing program qualifies for the 5-level 
enhancement?
    4. The proposed amendment amends Sec.  2G2.2 to provide that the 2-
level enhancement at subsection (b)(3) requires ``knowing'' 
distribution by the defendant. Should the Commission change any other 
enhancements in subsection (b) from an ``offense involved'' approach to 
a ``defendant-based'' approach? If so, should the Commission include a 
culpable state of mind requirement, such as, for example, requiring 
``knowing'' distribution by the defendant?
    5. The guideline for obscenity offenses, Sec.  2G3.1 (Importing, 
Mailing, or Transporting Obscene Matter; Transferring Obscene Matter to 
a Minor; Misleading Domain Names), contains a tiered distribution 
enhancement similar to the tiered distribution enhancement in Sec.  
2G2.2. If the Commission were to make revisions to the tiered 
distribution enhancement in Sec.  2G2.2, should the Commission make 
similar revisions to Sec.  2G3.1?

6. Immigration

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's multi-year study of the guidelines applicable to 
immigration offenses and related criminal history rules. See United 
States Sentencing Commission, ``Notice of Final Priorities,'' 80 FR 
48957 (Aug. 14, 2015). The Commission is publishing this proposed 
amendment to inform the Commission's consideration of these issues.
    The proposed amendment contains two parts. The Commission is 
considering whether to promulgate any one or both of these parts, as 
they are not necessarily mutually exclusive. They are as follows--
    Part A revises the alien smuggling guideline at Sec.  2L1.1 
(Smuggling, Transporting, or Harboring an Unlawful Alien). An issue for 
comment is also provided.
    Part B revises the illegal reentry guideline at Sec.  2L1.2 
(Unlawfully Entering or Remaining in the United States). Issues for 
comment are also included.

(A) Alien Smuggling

    Synopsis of Proposed Amendment: This part of the proposed amendment 
revises the alien smuggling guideline at Sec.  2L1.1 (Smuggling, 
Transporting, or Harboring an Unlawful Alien). The Commission has 
received comment expressing concern that the guideline provides for 
inadequate sentences for alien smugglers, particularly those who 
smuggle unaccompanied minors. See, e.g., Annual Letter from the 
Department of Justice to the Commission (July 24, 2015), at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20150727/DOJ.pdf.
    First, the proposed amendment revises the alternative base offense 
levels at Sec.  2L1.1(a). Two options are provided. Option 1 would 
raise the base offense level at subsection (a)(3) from 12 to [16]. 
Option 2 adds an alternative base offense level of [16] if the 
defendant smuggled, transported, or harbored an unlawful alien as part 
of an ongoing commercial organization.
    Second, the proposed amendment addresses offenses involving 
unaccompanied minors in alien smuggling offenses. The Department of 
Justice in its annual letter to the Commission has suggested that the 
enhancement for smuggling, transporting, or harboring unaccompanied 
minors under Sec.  2L1.1(b)(4) is inadequate in light of the serious 
nature of such offenses. The Department states that ``[t]hese smugglers 
often treat children as human cargo and subject them to a multitude of 
abuses throughout a long and dangerous journey, including sexual 
assault, extortion, and other crimes.'' The proposed amendment would 
amend Sec.  2L1.1 to address the issue of unaccompanied minors. The 
proposed amendment first amends Sec.  2L1.1(b)(4) to make the 
enhancement offense-based (with a mens rea requirement) as opposed to 
exclusively defendant-based. The proposed amendment would also amend 
the commentary to Sec.  2L1.1 to clarify that the term ``serious bodily 
injury'' included in subsection (b)(7)(B) has the meaning given to that 
term in the Commentary to Sec.  1B1.1 (Application Instructions), which 
states that ``serious bodily injury'' is deemed to have occurred if the 
offense involved conduct constituting criminal sexual abuse under 18 
U.S.C. 2241 or Sec.  2242 or any similar offense under state law.

[[Page 2308]]

    Finally, the proposed amendment would revise the definition of 
``minor'' for purposes of the ``unaccompanied minor'' enhancement at 
Sec.  2L1.1(b)(4) and change it from minors under the age of 16 to 
minors under the age of [18]. The proposed amendment also brackets the 
possibility of including a new departure provision in the commentary to 
Sec.  2L1.1 for cases in which the offense involved the smuggling, 
transporting, or harboring of six or more unaccompanied minors.
    An issue for comment is also provided.

Proposed Amendment

    Section 2L1.1 is amended--
    [Option 1:
    in subsection (a)(3) by striking ``12, otherwise'' and inserting 
``[16], otherwise'';]
    [Option 2:
    in subsection (a) by redesignating paragraph (3) as paragraph (4), 
and by inserting after paragraph (2) the following new paragraph (3):
    ``(3) [16], if the defendant smuggled, transported, or harbored an 
unlawful alien as part of an ongoing commercial organization; or'';]
    and in subsection (b)(4) by striking ``If the defendant smuggled, 
transported, or harbored a minor who was unaccompanied by the minor's 
parent or grandparent'' and inserting ``If the offense involved the 
smuggling, transporting, or harboring of a minor who the defendant knew 
[or had reason to believe] was unaccompanied by the minor's parent or 
grandparent''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended--
    in Note 1--
    [Option 2 (continued):
    by inserting before the paragraph that begins `` `The offense was 
committed other than for profit' means'' the following new paragraph:
    `` `As part of an ongoing commercial organization' means that the 
defendant participated (A) in a continuing organization or enterprise 
of five or more persons that had as one of its primary purposes the 
smuggling, transporting, or harboring of unlawful aliens for profit, 
and (B) with knowledge [or reason to believe] that the members of the 
continuing organization or enterprise smuggled, transported, or 
harbored different groups of unlawful aliens on more than one 
occasion.'';]
    in the paragraph that begins `` `Minor' means'' by striking ``16 
years'' and inserting ``[18] years'';
    and by inserting after the paragraph that begins ```Parent' means'' 
the following new paragraph:
    `` `Bodily injury,' `serious bodily injury,' and `permanent or 
life-threatening bodily injury' have the meaning given those terms in 
the Commentary to Sec.  1B1.1 (Application Instructions).'';
    by redesignating Notes 2 through 6 as Notes 3 through 7, 
respectively, and by inserting after Note 1 the following new Note 2:
    ``2. Application of Subsection (b)(7) to Conduct Constituting 
Criminal Sexual Abuse.--Consistent with Application Note 1(L) of Sec.  
1B1.1 (Application Instructions), `serious bodily injury' is deemed to 
have occurred if the offense involved conduct constituting criminal 
sexual abuse under 18 U.S.C. 2241 or Sec.  2242 or any similar offense 
under state law.'';
    and in Note 4, as so redesignated, by inserting at the end the 
following new subdivision:
    ``[(D) The offense involved the smuggling, transporting, or 
harboring of six or more minors who were unaccompanied by their parents 
or grandparents.]''.

Issue for Comment

    1. The Department of Justice has stated that alien smuggling 
offenses often involved sexual abuse of the aliens smuggled, 
transported, or harbored, particularly of unaccompanied minors. The 
proposed amendment would amend the commentary to Sec.  2L1.1 to clearly 
state that the term ``serious bodily injury'' included in subsection 
(b)(7)(B) has the meaning given to that term in the Commentary to Sec.  
1B1.1 (Application Instructions), which is deemed to have occurred if 
the offense involved conduct constituting criminal sexual abuse under 
18 U.S.C. 2241 or Sec.  2242 or any similar offense under state law. 
The Commission invites comment on whether the 4-level enhancement at 
Sec.  2L1.1(b)(7)(B) adequately accounts for cases in which the offense 
covered by this guideline involved sexual abuse of an alien who was 
smuggled, transported, or harbored. If not, what revisions to Sec.  
2L1.1 would be appropriate to account for this conduct? For example, 
should the Commission provide one or more specific offense 
characteristics or departure provisions to better account for this 
conduct? If so, what should the Commission provide?

(B) Illegal Reentry

    Synopsis of the Proposed Amendment: This part of the proposed 
amendment is also informed by the Commission's recent report on 
offenders sentenced under Sec.  2L1.2 (Unlawfully Entering or Remaining 
in the United States). See United States Sentencing Commission, Illegal 
Reentry Offenses (2015), available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/immigration/2015_Illegal-Reentry-Report.pdf.
    The key findings from the report include--
     the average sentence for illegal reentry offenders was 18 
months;
     all but two of the 18,498 illegal reentry offenders--
including the 40 percent with the most serious criminal histories 
triggering a statutory maximum penalty of 20 years under 8 U.S.C. 
1326(b)(2)--were sentenced at or below the ten-year statutory maximum 
under 8 U.S.C. 1326(b)(1) for offenders with less serious criminal 
histories (i.e., those without ``aggravated felony'' convictions);
     the rate of within-guideline range sentences was 
significantly lower among offenders who received 16-level enhancements 
pursuant to Sec.  2L1.2(b)(1)(A) for predicate convictions (31.3%), as 
compared to the within-range rate for those who received no 
enhancements under Sec.  2L1.2(b) (92.7%);
     significant differences in the rates of application of the 
various enhancements in Sec.  2L1.2(b) appeared among the districts 
where most illegal reentry offenders were prosecuted;
     the average illegal reentry offender was deported 3.2 
times before his instant illegal reentry prosecution, and over one-
third (38.1%) were previously deported after a prior illegal entry or 
illegal reentry conviction;
     61.9 percent of offenders were convicted of at least one 
criminal offense after illegally reentering the United States;
     4.7 percent of illegal reentry offenders had no prior 
convictions and not more than one prior deportation before their 
instant illegal reentry prosecutions; and
     most illegal reentry offenders were apprehended by 
immigration officials at or near the border.
    The statutory penalty structure for illegal reentry offenses is 
based on whether the defendant had a criminal conviction before he or 
she was deported. The offense of illegal reentry, set forth in 8 U.S.C. 
1326, applies to defendants who previously were deported from, or 
unlawfully remained in, the United States. Specifically, the statutory 
maximum term of imprisonment is--
     two years, in general (see 8 U.S.C. 1326(a)); but
     10 years, if the defendant was deported after sustaining 
(A) three misdemeanor convictions involving drugs or crimes against the 
person, or

[[Page 2309]]

both, or (B) one felony conviction (see 8 U.S.C. Sec.  1326(b)(1)); or
     20 years, if the defendant was deported after sustaining 
an ``aggravated felony''--a term that covers a range of offense types, 
listed in 8 U.S.C. Sec.  1101(a)(43), that includes such different 
offense types as murder and tax evasion (see 8 U.S.C. Sec.  
1326(b)(2)).
    The penalty structure of the guideline is similar to the statutory 
penalty structure. The guideline provides a base offense level of 8 and 
a tiered enhancement based on whether the defendant had a criminal 
conviction before he or she was deported. Specifically, the enhancement 
is--
     4 levels, for (A) three misdemeanor convictions for crimes 
of violence or drug trafficking offenses, or (B) any felony (see Sec.  
2L1.2(b)(1)(D),(E));
     8 levels, for an ``aggravated felony'' (see Sec.  
2L1.2(b)(1)(C));
     12 levels, for a felony drug trafficking offense for which 
the sentence imposed was 13 months or less (see Sec.  2L1.2(b)(1)(B)); 
and
     16 levels, for specific types of felonies: a drug 
trafficking offense for which the sentence imposed was more than 13 
months, a crime of violence, a firearms offense, a child pornography 
offense, a national security or terrorism offense, a human trafficking 
offense, or an alien smuggling offense (see Sec.  2L1.2(b)(1)(A)).
    The penalties in the illegal reentry statute apply based on the 
criminal convictions the defendant had before he or she was deported, 
regardless of the age of the prior conviction. Likewise, until 2011, 
the enhancements in Sec.  2L1.2 applied regardless of the age of the 
prior conviction. In 2011, the Commission revised the guideline to 
provide that the 16- and 12-level enhancements would be reduced to 12 
and 8 levels, respectively, if the conviction was too remote in time 
(too ``stale'') to receive criminal history points under the timing 
limits set forth in Chapter Four (Criminal History and Criminal 
Livelihood). See USSG App. C, Amend. 754 (effective Nov. 1, 2011). The 
other enhancements continue to apply regardless of the age of the prior 
conviction (i.e., without regard to whether the conviction receives 
criminal history points). See Sec.  2L1.2, comment. (n.1(C)).
    Part B of the proposed amendment amends Sec.  2L1.2 to lessen the 
emphasis on pre-deportation convictions by providing new enhancements 
for more recent, post-reentry convictions and a corresponding reduction 
in the enhancements for past, pre-deportation convictions. The 
enhancements for these convictions would be based on the sentence 
imposed rather than on the type of offense (e.g., ``crime of 
violence'')--in other words, the proposed amendment would eliminate the 
use of the ``categorical approach'' for predicate felony convictions in 
Sec.  2L1.2. Also, the proposed amendment accounts for prior 
convictions for illegal reentry separately from other types of 
convictions.
    First, the proposed amendment amends subsection (a) of Sec.  2L1.2 
to provide alternative base offense levels of [14] and [12] if the 
defendant had one or more prior convictions for illegal reentry 
offenses under 8 U.S.C. 1253, Sec.  1325(a), or Sec.  1326. For 
defendants without such prior convictions, the proposed amendment 
increases the otherwise applicable base offense level from 8 to [10]. 
The alternative base offense levels at subsection (a) apply without 
regard to whether the prior conviction receives criminal history 
points.
    Second, the proposed amendment changes how subsection (b)(1) 
accounts for pre-deportation convictions--basing them not on the type 
of offense (e.g., ``crime of violence'') but on the length of the 
sentence imposed for a felony conviction. The proposed amendment 
incorporates these new enhancements in subdivision (A) through (C) at 
subsection (b)(1). Specifically, if the defendant had a felony 
conviction and the sentence imposed was [24] months or more, an 
enhancement of [8] levels would apply. If the defendant had a felony 
conviction and the sentence imposed was at least [12] months but less 
than [24] months, an enhancement of [6] levels would apply. If the 
defendant had a felony conviction and the sentence imposed was less 
than [12] months, an enhancement of [4] levels would apply. Finally, an 
enhancement of [2] levels would apply if the defendant had three or 
more convictions for misdemeanors involving drugs or crimes against the 
person. If more than one of these enhancements apply, the court is 
instructed to apply the greatest.
    Third, the proposed amendment would permit prior convictions to be 
considered under subsection (b)(1) only if they receive criminal 
history points under Chapter Four.
    To account for post-reentry criminal activity, the proposed 
amendment inserts a new subsection (b)(2) to provide a tiered 
enhancement for a defendant who engaged in criminal conduct resulting 
in a conviction for one or more felony offenses after the defendant's 
first deportation or first order of removal. The structure of the new 
subsection (b)(2) parallels the proposed changes to subsection (b)(1), 
both in the sentence length required and the level of enhancement to be 
applied. As with subsection (b)(1), prior convictions would be 
considered under subsection (b)(2) only if they receive criminal 
history points under Chapter Four.
    Finally, the proposed amendment provides a new departure provision 
for cases in which the defendant was previously deported on multiple 
occasions not reflected in prior convictions under 8 U.S.C. 1253, Sec.  
1325(a), or Sec.  1326. It also revises the departure provision based 
on seriousness of a prior conviction to bring it more into parallel 
with Sec.  4A1.3 (Adequacy of Criminal History Category) and provide 
examples related to: (1) cases in which serious offenses do not qualify 
for an adjustment under subsection (b)(1) and the new subsection (b)(2) 
because they did not receive criminal history points; and (2) for cases 
in which a defendant committed one or more felony offenses but no 
conviction resulted from the commission of such offense or offenses. 
The proposed amendment also brackets the possibility of deleting the 
departure based on time served in state custody.
    In addition, the proposed amendment would make conforming changes 
to the application notes, including the consolidation of all guideline 
definitions in one place.
    Issues for comment are also included.

Proposed Amendment

    Section 2L1.2 is amended--
    in subsection (a) by striking ``Base Offense Level: 8'' and 
inserting the following:
    ``Base Offense Level (Apply the Greatest):
    (1) [14], if the defendant committed the instant offense of 
conviction after sustaining two or more convictions for illegal reentry 
offenses;
    (2) [12], if the defendant committed the instant offense of 
conviction after sustaining a conviction for an illegal reentry 
offense;
    (3) [10], otherwise.'';
    in subsection (b) by striking ``Characteristic'' in the heading and 
inserting ``Characteristics''; by striking subsection (b)(1) and 
inserting the following new subsection (b)(1):
    ``(1) Apply the Greatest:
    If, before the defendant's first deportation or first order of 
removal, the defendant sustained--
    (A) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was [24] months or 
more, increase by [8] levels;
    (B) a conviction for a felony offense (other than an illegal 
reentry offense) for

[[Page 2310]]

which the sentence imposed was at least [12] months but less than [24] 
months, increase by [6] levels;
    (C) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was less than [12] 
months, increase by [4] levels; or
    (D) three or more convictions for misdemeanors involving drugs, 
crimes against the person, or both, increase by [2] levels.'';
    and by inserting at the end the following new subsection (b)(2):
    ``(2) Apply the Greatest:
    If, at any time after the defendant's first deportation or first 
order of removal, the defendant engaged in criminal conduct resulting 
in--
    (A) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was [24] months or 
more, increase by [8] levels;
    (B) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was at least [12] 
months but less than [24] months, increase by [6] levels;
    (C) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was less than [12] 
months, increase by [4] levels; or
    (D) three or more convictions for misdemeanors involving drugs, 
crimes against the person, or both, increase by [2] levels.''.
    The Commentary to Sec.  2L1.2 captioned ``Statutory Provisions'' is 
amended by inserting after ``8 U.S.C.'' the following: ``Sec.  1253,''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended--
    in Note 1, in the heading, by striking ``Subsection (b)(1)'' and 
inserting ``Subsections (b)(1) and (b)(2)'';
    in Note 1(A) by striking ``For purposes of subsection (b)(1)'' and 
inserting ``For purposes of this guideline'';
    by striking Notes 1(B) and 1(C), and inserting the following new 
Note 1(B):
    ``(B) Interaction of Subsections (b)(1) and (b)(2).--Subsections 
(b)(1) and (b)(2) are intended to divide the defendant's criminal 
history into two time periods. Subsection (b)(1) reflects the 
convictions, if any, that the defendant sustained before his first 
deportation or order of removal (whichever event occurs first). 
Subsection (b)(2) reflects the convictions, if any, that the defendant 
sustained after that event (when the criminal conduct that resulted in 
the conviction took place after that event).'';
    by striking Notes 2 through 7 and inserting the following new Notes 
2, 3, 4, and 5:
    ``2. Definitions.--For purposes of this guideline:
    `Felony' means any federal, state, or local offense punishable by 
imprisonment for a term exceeding one year.
    `Illegal reentry offense' means (A) an offense under 8 U.S.C. 1253 
or Sec.  1326, or (B) a second or subsequent offense under 8 U.S.C. 
1325(a) (regardless of whether the conviction was designated a felony 
or misdemeanor).
    `Misdemeanor' means any federal, state, or local offense punishable 
by a term of imprisonment of one year or less.
    `Sentence imposed' has the meaning given the term `sentence of 
imprisonment' in Application Note 2 and subsection (b) of Sec.  4A1.2 
(Definitions and Instructions for Computing Criminal History), without 
regard to the date of the conviction. The length of the sentence 
imposed includes any term of imprisonment given upon revocation of 
probation, parole, or supervised release, but only if the revocation 
occurred before the defendant was deported or unlawfully remained in 
the United States.
    `Three or more convictions' means at least three convictions for 
offenses that are not treated as a single sentence pursuant to 
subsection (a)(2) of Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History).
    3. Criminal History Points.--The alternative base offense levels at 
subsection (a) apply without regard to whether a conviction for an 
illegal reentry offense receives criminal history points. However, for 
purposes of applying subsections (b)(1) and (b)(2), use only those 
convictions that receive criminal history points under Sec.  4A1.1(a), 
(b), or (c), and that are counted separately under Sec.  4A1.2(a)(2).
    A conviction taken into account under subsection (a) or (b) is not 
excluded from consideration of whether that conviction receives 
criminal history points pursuant to Chapter Four, Part A (Criminal 
History).
    4. Departure Based on Multiple Prior Deportations not Reflected in 
Prior Convictions.--There may be cases in which the alternative base 
offense levels at subsections (a)(1) and (a)(2) do not apply and the 
defendant was previously deported (voluntarily or involuntarily) on 
multiple occasions not reflected in prior convictions under 8 U.S.C. 
1253, Sec.  1325(a), or Sec.  1326. In such a case, an upward departure 
may be warranted to reflect both the increased culpability of a 
defendant with multiple prior deportations, as well as the increased 
risk of future illegal reentry (as reflected in the defendant's record 
of multiple prior deportations). For example, an upward departure may 
be warranted for a defendant who is convicted under 8 U.S.C. 1326 for 
the first time but was deported five times prior to the instant offense 
of illegal reentry.
    5. Departure Based on Seriousness of Criminal History.--There may 
be cases in which the applicable offense level substantially overstates 
or understates the seriousness of a defendant's criminal history. In 
such a case, a departure may be warranted. See Sec.  4A1.3 (Departures 
Based on Inadequacy of Criminal History Category (Policy Statement)). 
Examples: (A) In a case in which an adjustment under subsection (b)(1) 
or (b)(2) does not apply because a prior serious conviction (e.g., 
murder) is not within the time limits set forth in Sec.  4A1.2(e) and 
did not receive criminal history points, an upward departure may be 
warranted to reflect the serious nature of the defendant's prior 
conviction. (B) In a case in which a defendant committed one or more 
felony offenses but subsections (b)(1) and (b)(2) do not apply because 
no conviction resulted from the commission of such offense or offenses, 
an upward departure may be warranted.'';
    [by striking Note 8 as follows:
    8. Departure Based on Time Served in State Custody.--In a case in 
which the defendant is located by immigration authorities while the 
defendant is serving time in state custody, whether pre- or post-
conviction, for a state offense, the time served is not covered by an 
adjustment under Sec.  5G1.3(b) and, accordingly, is not covered by a 
departure under Sec.  5K2.23 (Discharged Terms of Imprisonment). See 
Sec.  5G1.3(a). In such a case, the court may consider whether a 
departure is appropriate to reflect all or part of the time served in 
state custody, from the time immigration authorities locate the 
defendant until the service of the federal sentence commences, that the 
court determines will not be credited to the federal sentence by the 
Bureau of Prisons. Any such departure should be fashioned to achieve a 
reasonable punishment for the instant offense.
    Such a departure should be considered only in cases where the 
departure is not likely to increase the risk to the public from further 
crimes of the defendant. In determining whether such a departure is 
appropriate, the court should consider, among other things, (A) whether 
the defendant engaged in additional criminal activity after illegally 
reentering the United States; (B) the seriousness of any such 
additional criminal activity, including (1) whether the defendant used 
violence or credible threats of violence or possessed a firearm or 
other dangerous

[[Page 2311]]

weapon (or induced another person to do so) in connection with the 
criminal activity, (2) whether the criminal activity resulted in death 
or serious bodily injury to any person, and (3) whether the defendant 
was an organizer, leader, manager, or supervisor of others in the 
criminal activity; and (C) the seriousness of the defendant's other 
criminal history.'';]
    and by redesignating Note 9 as Note 6.

Issues for Comment

    1. Some commentators have expressed concern about the operation of 
the illegal reentry guideline and the severity of the enhancements 
available in subsection (b) for some offenders. The Commission's recent 
report found that the rate of within-range sentences differed 
substantially depending on the level of enhancement under Sec.  
2L1.2(b)(1). The rate of within-guideline range sentences was 
significantly lower among defendants who received the 16-level 
enhancement (31.3%) as compared to the within-range rate for those who 
received no enhancements (92.7%). The report showed that the greater 
enhancements result in the lowest within-range sentences (52.5% within 
range for 4-level enhancement, 46.7% within range for 8-level 
enhancement, 32.8% within range for 12-level enhancement).
    The Commission seeks comment on whether illegal reentry offenses 
are adequately addressed by the guidelines. Should the Commission 
consider amending Sec.  2L1.2 and, if so, how?
    2. Currently, Sec.  2L1.2 requires the court to classify the 
defendant's prior convictions by type (e.g., is it a ``crime of 
violence'' or is it an ``aggravated felony''?), a task that involves 
the Supreme Court's ``categorical approach.'' In recent years, the 
Commission has received commentary from stakeholders in the federal 
criminal justice system--including district and circuit judges, federal 
probation officers, the Department of Justice, and some defense 
counsel--that the use of a ``categorical approach'' to determine if a 
predicate conviction qualifies for an enhancement under Sec.  2L1.2(b) 
requires a cumbersome, overly detailed, and resource-intensive legal 
analysis that often is under- or over-inclusive regarding the actual 
seriousness of offenders' predicate convictions. See, e.g., Comment 
Received by the Commission in Response to Request for Public Comment on 
Proposed Priorities from 2010 to 2015 (available on the Commission's 
Web site at www.ussc.gov/amendment-process/public-comment). Cf. 
Almanza-Arenda v. Lynch, __F.3d __, 2015 WL 9462976 at *8-*9 (9th Cir. 
Dec. 28, 2015) (Owens, J., concurring, joined by Tallman, Bybee & 
Callahan) (``The bedeviling . . . [`]categorical approach' will 
continue to spit out intra- and inter-circuit splits and confusion, 
which are inevitable when we have hundreds of federal judges reviewing 
thousands of criminal state laws and certain documents to determine if 
an offense is `categorically['] [a predicate offense]. . . . A better 
mousetrap is long overdue. Rather than compete with Rube Goldberg, we 
instead should look to a more objective standard, such as the length of 
the underlying sentence [to determine what is a predicate offense].'').
    The proposed amendment would eliminate the use of the ``categorical 
approach'' for predicate felony convictions and provide for 
enhancements based on the sentence imposed rather than on the type of 
offense. What are the advantages and disadvantages of basing the 
enhancement on the type of the prior conviction? What are the 
advantages and disadvantages of basing the enhancement on the length of 
the sentence imposed on the prior conviction? If the Commission were to 
adopt the sentence-imposed model, are the 24- and 12-month gradations 
included in the proposed amendment appropriate? Should the Commission 
adopt different gradations, such as the ones currently used in Chapter 
Four of the Guidelines Manual (i.e., ``exceeding one year and one 
month'' and ``at least sixty days''), or more or fewer gradations? If 
the Commission were to provide a different approach to apply the 
enhancements at Sec.  2L1.2, what should that different approach be?
    3. As noted in the Commission's recent report, both the illegal 
reentry statute and Sec.  2L1.2 provide enhanced penalties only if the 
defendant sustained a conviction before being deported. A defendant 
receives at most a single enhancement under Sec.  2L1.2--based on the 
most serious conviction. Additional convictions that occurred before 
the defendant's most recent deportation, and convictions that occurred 
after the defendant's most recent illegal reentry, are not taken into 
account in the calculation of the offense level (although they may be 
taken into account in the criminal history score).
    Should the Commission amend how the enhancements at Sec.  2L1.2 
work and, if so, how? Should the Commission amend Sec.  2L1.2 to 
account not only for pre-deportation convictions but also for other 
aggravating factors relevant to a defendant's culpability and need for 
incapacitation and deterrence?
    For example, the proposed amendment would amend subsection (a) of 
Sec.  2L1.2 to provide alternative base offense levels if the defendant 
had one or more prior convictions for illegal reentry offenses under 8 
U.S.C. Sec.  1253, Sec.  1325(a), or Sec.  1326. What are the 
advantages and disadvantages of basing alternative base offense levels 
on illegal reentry convictions? Should the Commission use a different 
approach for such alternative base offense levels? Should the 
Commission use deportations and orders of removal instead to apply the 
base offense levels?
    If the Commission provided additional enhancements to account for 
aggravating factors relevant to a defendant's culpability other than 
pre-deportation convictions, how should these enhancements interact? 
How much weight should be given to pre-deportation convictions in 
relation to prior illegal reentry convictions or post-reentry 
convictions in driving the guideline range? Should the guideline 
provide greater emphasis on one or more of these factors? For example, 
should the guideline give more weight to post-reentry convictions and 
less weight to pre-deportation convictions (e.g., a 10-level 
enhancement for a post-reentry conviction for which the sentence 
imposed was 24 months or more with a corresponding 6-level enhancement 
for a pre-deportation conviction for which the sentence imposed was 24 
months or more)?
    What other aggravating factors, if any, should the Commission 
incorporate into Sec.  2L1.2, and how should the Commission incorporate 
them? Should the factor be an enhancement, an alternative base offense 
level, a minimum offense level, an upward departure provision, or some 
combination of these? If so, what level of enhancement should apply?
    What mitigating factors, if any, should the Commission incorporate 
into Sec.  2L1.2, and how should the Commission incorporate them? For 
example, should the Commission provide a new departure provision for 
cases in which the defendant's predicate felony conviction is based on 
an offense that was classified by the laws of the state as a 
misdemeanor?
    4. Currently, Sec.  2L1.2 provides enhanced penalties based on 
convictions sustained prior to the defendant's most recent deportation 
from the United States. The proposed amendment would modify how the 
enhancements work in the illegal reentry guideline. Specifically, it 
would divide the defendant's criminal history

[[Page 2312]]

into two time periods. Subsection (b)(1) would reflect the convictions 
that the defendant sustained before his or her first deportation or 
order of removal (whichever event occurs first). Subsection (b)(2) 
would then reflect the convictions that the defendant sustained after 
that event (when the criminal conduct that resulted in the conviction 
took place after that event).
    What are the advantages and disadvantages of using a particular 
deportation or order of removal as the determining event for whether a 
prior conviction qualifies for an enhancement under subsection (b)(1) 
or subsection (b)(2)? Should the Commission use a different approach to 
distinguish pre-deportation convictions from post-reentry convictions? 
For example, should the Commission provide instead that a prior 
conviction sustained before any deportation would qualify for an 
enhancement for pre-deportation convictions? If so, how should such 
enhancement interact with an enhancement based on post-reentry 
convictions as provided in the proposed amendment?
    5. In 2014, the Commission amended the Commentary to Sec.  2L1.1 to 
add a departure provision for cases in which the defendant is located 
by immigration authorities while the defendant is in state custody for 
a state offense unrelated to the federal illegal reentry offense. In 
such a case, the time served is not covered by adjustment under Sec.  
5G1.3 (Imposition of a Sentence on a Defendant Subject to an 
Undischarged Term of Imprisonment or Anticipated State Term of 
Imprisonment) and, accordingly, is not covered by a departure under 
Sec.  5K2.23 (Discharged Terms of Imprisonment). Under the current 
guideline, the departure allows courts to depart to reflect all or part 
of the time served in state custody for the unrelated offense, from the 
time federal immigration authorities locate the defendant until the 
service of the federal sentence commences, that the court determines 
will not be credited to the federal sentence by the Bureau of Prisons. 
The proposed amendment brackets the possibility of deleting the 
departure provision at Application Note 8 to Sec.  2L1.2.
    If the Commission were to promulgate the proposed amendment 
revising how the enhancements at the illegal reentry guideline work, 
should the Commission delete the departure based on time served in 
state custody? If not, how should the new enhancements at Sec.  2L1.2 
interact with the departure provision? For example, should the 
Commission limit the applicability of the departure provision?
    6. The Commission recently promulgated an amendment that amends the 
definition of ``crime of violence'' in subsection (a) of Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1), effective August 1, 2016 
(to be published in a forthcoming edition of the Federal Register). The 
changes made by that amendment include revising the list of enumerated 
offenses and adding definitions for the enumerated offenses of 
extortion and a forcible sex offense. Finally, the amendment includes a 
downward departure provision in Sec.  4B1.1 for cases in which the 
defendant's prior ``crime of violence'' or ``controlled substance 
offense'' is based on an offense that was classified by the laws of the 
state as a misdemeanor.
    The proposed amendment would eliminate the use of the term ``crime 
of violence'' in Sec.  2L1.2. In the event that the Commission does not 
promulgate the proposed amendment, and retains the term ``crime of 
violence'' in Sec.  2L1.2, should the Commission incorporate all or 
part of the definition of ``crime of violence'' provided in the 
recently amended Sec.  4B1.2 into Sec.  2L1.2? If the Commission were 
to conform Sec.  2L1.2 to the new definition in Sec.  4B1.2(a), are 
there any particular offenses that would no longer qualify as a ``crime 
of violence'' but that nonetheless should receive an enhancement under 
subsection (b)(1) (e.g., statutory rape or burglary of a dwelling)?

[FR Doc. 2016-00766 Filed 1-14-16; 8:45 am]
 BILLING CODE 2210-40-P