Sentencing Guidelines for United States Courts, 27261-27281 [2016-10431]

Download as PDF Vol. 81 Thursday, No. 87 May 5, 2016 Part III United States Sentencing Commission mstockstill on DSK3G9T082PROD with NOTICES2 Sentencing Guidelines for United States Courts; Notice VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\05MYN2.SGM 05MYN2 27262 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices Authority: 28 U.S.C. 994(a), (o), and (p); USSC Rules of Practice and Procedure 4.1. UNITED STATES SENTENCING COMMISSION Patti B. Saris, Chair. Sentencing Guidelines for United States Courts United States Sentencing Commission. AGENCY: Notice of submission to Congress of amendments to the sentencing guidelines effective November 1, 2016. ACTION: Pursuant to its authority under 28 U.S.C. 994(p), the Commission has promulgated amendments to the sentencing guidelines, policy statements, commentary, and statutory index. This notice sets forth the amendments and the reason for each amendment. SUMMARY: The Commission has specified an effective date of November 1, 2016, for the amendments set forth in this notice. DATES: FOR FURTHER INFORMATION CONTACT: Christine Leonard, Director, Office of Legislative and Public Affairs, (202) 502–4500, pubaffairs@ussc.gov. The amendments set forth in this notice also may be accessed through the Commission’s Web site at www.ussc.gov. The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) not later than the first day of May each year. Absent action of Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress). Notice of proposed amendments was published in the Federal Register on January 15, 2016 (see 81 FR 2295). The Commission held public hearings on the proposed amendments in Washington, DC, on February 17 and March 16, 2016. On April 28, 2016, the Commission submitted these amendments to Congress and specified an effective date of November 1, 2016. mstockstill on DSK3G9T082PROD with NOTICES2 SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 1. Amendment: Section 1B1.13 is amended in the heading by striking ‘‘as a Result of Motion by Director of Bureau of Prisons’’ and inserting ‘‘Under 18 U.S.C. 3582(c)(1)(A)’’. The Commentary to § 1B1.13 captioned ‘‘Application Notes’’ is amended in Note 1 by striking the heading as follows: ‘‘Application of Subdivision (1)(A).—’’; by striking Note 1(A) as follows: (A) Extraordinary and Compelling Reasons.—Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the following circumstances: (i) The defendant is suffering from a terminal illness. (ii) The defendant is suffering from a permanent physical or medical condition, or is experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and for which conventional treatment promises no substantial improvement. (iii) The death or incapacitation of the defendant’s only family member capable of caring for the defendant’s minor child or minor children. (iv) 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 in subdivisions (i), (ii), and (iii).’’; by redesignating Notes 1(B) and 2 as Notes 3 and 5, respectively, and inserting before Note 3 (as so redesignated) the following new Notes 1 and 2: ‘‘1. Extraordinary and Compelling Reasons.—Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the circumstances set forth below: (A) Medical Condition of the Defendant.— (i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia. PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 (ii) The defendant is— (I) suffering from a serious physical or medical condition, (II) suffering from a serious functional or cognitive impairment, or (III) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover. (B) Age of the Defendant.—The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less. (C) Family Circumstances.— (i) The death or incapacitation of the caregiver of the defendant’s minor child or minor children. (ii) 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. (D) Other Reasons.—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 in subdivisions (A) through (C). 2. Foreseeability of Extraordinary and Compelling Reasons.—For purposes of this policy statement, an extraordinary and compelling reason need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.’’; in Note 3 (as so redesignated) by striking ‘‘subdivision (1)(A)’’ and inserting ‘‘this policy statement’’; and by inserting after Note 3 (as so redesignated) the following new Note 4: ‘‘4. Motion by the Director of the Bureau of Prisons.—A reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. 3582(c)(1)(A). The Commission encourages the Director of the Bureau of Prisons to file such a motion if the defendant meets any of the circumstances set forth in Application Note 1. The court is in a unique position to determine whether the circumstances warrant a reduction (and, if so, the E:\FR\FM\05MYN2.SGM 05MYN2 mstockstill on DSK3G9T082PROD with NOTICES2 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices amount of reduction), after considering the factors set forth 18 U.S.C. 3553(a) and the criteria set forth in this policy statement, such as the defendant’s medical condition, the defendant’s family circumstances, and whether the defendant is a danger to the safety of any other person or to the community. This policy statement shall not be construed to confer upon the defendant any right not otherwise recognized in law.’’. The Commentary to § 1B1.13 captioned ‘‘Background’’ is amended by striking ‘‘This policy statement implements 28 U.S.C. 994(t).’’ and inserting the following: ‘‘The Commission is required by 28 U.S.C. 994(a)(2) to develop 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). In doing so, the Commission is authorized by 28 U.S.C. 994(t) 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.’ This policy statement implements 28 U.S.C. 994(a)(2) and (t).’’. Reason for Amendment: This amendment is a result of the Commission’s review of the policy statement pertaining to ‘‘compassionate release’’ at § 1B1.13 (Reduction in Term of Imprisonment as a Result of Motion by Director of Bureau of Prisons). The amendment broadens certain eligibility criteria and encourages the Director of the Bureau of Prisons to file a motion for compassionate release when ‘‘extraordinary and compelling reasons’’ exist. 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 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)(A); see also 28 U.S.C. 992(a)(2) (stating that the Commission shall promulgate general policy statements regarding ‘‘the sentence modification provisions set forth in section[ ] . . . 3582(c) of title 18’’); and 994(t) (stating that the Commission, in promulgating any such policy VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 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’’). In turn, the Commission promulgated the policy statement at § 1B1.13, which defines ‘‘extraordinary and compelling reasons’’ for compassionate release. The Bureau of Prisons has developed its own criteria for the implementation of section 3582(c)(1)(A). See U.S. Department of Justice, Federal Bureau of Prisons, Compassionate Release/ Reduction in Sentence: Procedures for Implementation of 18 U.S.C. 3582(c)(1)(A) and 4205(g) (Program Statement 5050.49, CN–1). Under its 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 nonmedical circumstances (e.g., an elderly defendant, the death or incapacitation of the family member caregiver of an inmate’s minor child, or the incapacitation of the defendant’s spouse or registered partner when the inmate would be the only available caregiver; see 5050.49(4),(5),(6)). The Commission has conducted an indepth review of this topic, including consideration of Bureau of Prisons data documenting lengthy review of compassionate release applications and low approval rates, as well as two reports issued by the Department of Justice Office of the Inspector General that are critical of the Bureau of Prisons’ implementation of its compassionate release program. See U.S. Department of Justice, Office of the Inspector General, The Federal Bureau of Prisons’ Compassionate Release Program, I– 2013–006 (April 2013); 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). In February 2016, the Commission held a public hearing on compassionate release and received testimony from witnesses and experts about the need to broaden the criteria for eligibility, to add guidance to the medical criteria, and to remove other administrative hurdles that limit the availability of compassionate release for otherwise eligible defendants. The amendment revises § 1B1.13 in several ways. First, the amendment broadens the Commission’s guidance on what should be considered ‘‘extraordinary and compelling reasons’’ for compassionate release. It provides four categories of criteria: ‘‘Medical Condition of the Defendant,’’ ‘‘Age of PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 27263 the Defendant,’’ ‘‘Family Circumstances,’’ and ‘‘Other Reasons.’’ The ‘‘Medical Condition of the Defendant’’ category has two prongs: One for defendants with terminal illness, and one that applies to defendants with a debilitating condition. For the first subcategory, the amendment clarifies that terminal illness means ‘‘a serious and advanced illness with an end of life trajectory,’’ and it explicitly states that a ‘‘specific prognosis of life expectancy (i.e. a probability of death within a specific time period) is not required.’’ These changes respond to testimony and public comment on the challenges associated with diagnosing terminal illness. In particular, while an end-oflife trajectory may be determined by medical professionals with some certainty, it is extremely difficult to determine death within a specific time period. For that reason, the Commission concluded that requiring a specified prognosis (such as the 18-month prognosis in the Bureau of Prisons’ program statement) is unnecessarily restrictive both in terms of the administrative review and the scope of eligibility for compassionate release applications. For added clarity, the amendment also provides a nonexhaustive list of illnesses that may qualify as a terminal illness. For the non-terminal medical category, the amendment provides three broad criteria to include defendants who are (i) suffering from a serious condition, (ii) suffering from a serious functional or cognitive impairment, or (iii) experiencing deteriorating health because of the aging process, for whom the medical condition substantially diminishes the defendant’s ability to provide self-care within a correctional facility and from which he or she is not expected to recover. The primary change to this category is the addition of prong (II) regarding a serious functional or cognitive impairment. This additional prong is intended to include a wide variety of permanent, serious impairments and disabilities, whether functional or cognitive, that make life in prison overly difficult for certain inmates. The amendment also adds an agebased category (‘‘Age of the Defendant’’) for eligibility in § 1B1.13. This new category would apply if the defendant (i) is at least 65 years old, (ii) is experiencing a serious deterioration in health because of the aging process, and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment (whichever is less). The age-based category resembles criteria in the Bureau of Prisons’ program E:\FR\FM\05MYN2.SGM 05MYN2 mstockstill on DSK3G9T082PROD with NOTICES2 27264 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices statement, but adds a limitation that the defendant must be experiencing seriously deteriorating health because of the aging process. The amendment also clarifies that the time-served aspect should be applied with regard to ‘‘whichever is less,’’ an important distinction from the Bureau of Prisons’ criteria, which has limited application to only those elderly offenders serving significant terms of imprisonment. The Commission determined that 65 years should be the age for eligibility under the age-based category after considering the Commission’s recidivism research, which finds that inmates aged 65 years and older exhibit a very low rate of recidivism (13.3%) as compared to other age groups. The Commission expects that the broadening of the medical conditions categories, cited above, will lead to increased eligibility for inmates who suffer from certain conditions or impairments, and who experience a diminished ability to provide self-care in prison, regardless of their age. The amendment also includes a ‘‘Family Circumstances’’ category for eligibility that applies to (i) the death or incapacitation of the caregiver of the defendant’s minor child, or (ii) the incapacitation of the defendant’s spouse or registered partner when the defendant would be the only available caregiver. The amendment deletes the requirement under prong (i) regarding the death or incapacitation of the ‘‘defendant’s only family member’’ caregiver, given the possibility that the existing caregiver may not be of family relation. The Commission also added prong (ii), which makes this category of criteria consistent with similar considerations in the Bureau of Prisons’ program statement. Second, the amendment updates the Commentary in § 1B1.13 to provide that an extraordinary and compelling reason need not have been unforeseen at the time of sentencing in order to warrant a reduction. The Commission heard from stakeholders and medical experts that the corresponding limitation in the Bureau of Prisons’ program statement ignores the often precipitous decline in health or circumstances that can occur after imprisonment. The Commission determined that potential foreseeability at the time of sentencing should not automatically preclude the defendant’s eligibility for early release under § 1B1.13. Finally, the amendment adds a new application note that encourages the Director of the Bureau of Prisons to file 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 § 1B1.13. VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 The Commission heard testimony and received public comment concerning the inefficiencies that exist within the Bureau of Prisons’ administrative review of compassionate release applications, which can delay or deny release, even in cases where the applicant appears to meet the criteria for eligibility. While only the Director of the Bureau of Prisons has the statutory authority to file a motion for compassionate release, the Commission finds that ‘‘the court is in a unique position to assess whether the circumstances exist, and whether a reduction is warranted (and, if so, the amount of reduction), including the factors set forth 18 U.S.C. 3553(a) and the criteria set forth in this policy statement, such as the defendant’s medical condition, the defendant’s family circumstances, and whether the defendant is a danger to the safety of any other person or to the community.’’ The Commission’s policy statement is not legally binding on the Bureau of Prisons and does not confer any rights on the defendant, but the new commentary is intended to encourage the Director of the Bureau of Prisons to exercise his or her authority to file a motion under section 3582(c)(1)(A) when the criteria in this policy statement are met. The amendment also adds to the Background that the Commission’s general policy-making authority at 28 U.S.C. 994(a)(2) serves as an additional basis for this and other guidance set forth in § 1B1.13, and the amendment changes the title of the policy statement. These changes are clerical. 2. Amendment: Section 2E3.1 is amended in subsection (a) by striking subsection (a)(2) as follows: ‘‘(2) 10, if the offense involved an animal fighting venture; or’’; by redesignating subsections (a)(1) and (a)(3) as subsections (a)(2) and (a)(4), respectively; in subsection (a)(2) (as so redesignated) by striking ‘‘operation; or’’ and inserting ‘‘operation;’’; by inserting before subsection (a)(2) (as so redesignated) the following new subsection (a)(1): ‘‘(1) 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 (a)(3): ‘‘(3) 10, if the defendant was convicted under 7 U.S.C. 2156(a)(2)(B); or’’. The Commentary to § 2E3.1 captioned ‘‘Statutory Provisions’’ is amended by inserting after ‘‘7 U.S.C. 2156’’ the following: ‘‘(felony provisions only)’’. PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 The Commentary to § 2E3.1 captioned ‘‘Application Notes’’ is amended in Note 1 by striking ‘‘: ‘Animal’’ and inserting ‘‘, ‘animal’’; and 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 the following: ‘‘The base offense levels provided for animal fighting ventures in subsection (a)(1) and (a)(3) reflect that an animal fighting venture involves one or more violent fights between animals and that a defeated animal often is severely injured in the fight, dies as a result of the fight, or is killed afterward. Nonetheless, there may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. In such a case, an upward departure may be warranted. For example, an upward departure may be warranted if (A) the offense involved extraordinary cruelty to an animal beyond the violence inherent in such a venture (such as by killing an animal in a way that prolongs the suffering of the 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 ‘‘§ 2156’’ the following: ‘‘(felony provisions only)’’. Reason for Amendment: This amendment responds to two legislative changes to the Animal Welfare Act (the ‘‘Act’’) (codified at 7 U.S.C. 2156) made by Congress in 2008 and 2014. First, in 2008, Congress amended the Act to increase the maximum term of imprisonment for offenses involving an animal fighting venture from three years to five years. See Food, Conservation, and Energy Act of 2008, Pub. L. No. 110–234, § 14207(b), 122 Stat. 1461, 1462 (May 22, 2008). Second, in 2014, Congress again amended the Act to create two new offenses—the offense of attending an animal fight and the offense of causing an individual under the age of 16 to attend an animal fight, with respective statutory maximum terms of imprisonment of one and three years. See Agricultural Act of 2014, Pub. L. 113–79, § 12308, 128 Stat. 990, 990 (Feb. 7, 2014). The amendment makes several changes to § 2E3.1 (Gambling Offenses, Animal Fighting Offenses) to account for these legislative actions. The amendment is informed by extensive public comment, recent case law, and E:\FR\FM\05MYN2.SGM 05MYN2 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices analysis of Commission data regarding the current penalties for animal fighting offenses. mstockstill on DSK3G9T082PROD with NOTICES2 Higher Penalties for Animal Fighting Venture Offenses First, the amendment increases the base offense level for offenses involving an animal fighting venture from 10 to 16. This change reflects the increase in the statutory maximum penalty from three to five years for offenses prohibited under 7 U.S.C. 2156(a)–(e). See 18 U.S.C. 49 (containing the criminal penalties for violations of section 2156). The Commission also determined that the increased base offense level better accounts for the cruelty and violence that is characteristic of these crimes, as reflected in the extensive public comment and testimony noting that a defeated animal is often severely injured or killed during or after a fight and that the animals used in these crimes are commonly exposed to inhumane living conditions or other forms of neglect. In making this change, the Commission was also informed by data evidencing a high percentage of above range sentences in these cases. During fiscal years 2011 through 2014, almost one-third (31.0%) of the seventy-four offenders who received the base offense level of 10 under § 2E3.1 received an above range sentence, compared to a national above range rate of 2.0 percent for all offenders. For those animal fighting offenders sentenced above the range, the average extent of the upward departure was more than twice the length of imprisonment at the high end of the guideline range, resulting in an average sentence of 18 months (and a median sentence of 16 months). Comparably, the amended base offense level will result in a guideline range of 12 to 18 months for the typical animal fighting venture offender who is in Criminal History Category I and receives a three-level reduction for acceptance of responsibility under § 3E1.1 (Acceptance of Responsibility). Additionally, for offenders in the higher criminal history categories, the guideline range at base offense level 16 allows for applicable Chapter Three increases while remaining within the statutory maximum. New Offenses Relating to Attending an Animal Fighting Venture The amendment also establishes a base offense level of 10 in § 2E3.1 if the defendant was convicted under section 2156(a)(2)(B) for causing an individual under 16 to attend an animal fighting venture. The Commission believes this level of punishment best reflects VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 Congress’s intent in creating this new crime. A base offense level of 10 for this new offense will result in a guideline range (before acceptance of responsibility) of 6 to 12 months of imprisonment for offenders in Criminal History Category I, while allowing for a guideline range approaching the threeyear statutory maximum for offenders in higher criminal history categories. The Commission also noted that assigning a base offense level of 10 is consistent with the policy decision made by the Commission when it assigned a base offense level of 10 to an animal fighting crime in 2008, which, at that time, also had a three-year statutory maximum penalty. See USSG App. C, amend. 721 (effective November 1, 2008). Lastly, the amendment establishes a base offense level of 6 for the new class A misdemeanor of attending an animal fighting venture prohibited by section 2156(a)(2)(A) by including only the felony provisions of 7 U.S.C. 2156 in the Appendix A reference to § 2E3.1. Consistent with other Class A misdemeanor offenses, this base offense level is established through application of § 2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)). Departure Provision The amendment also revises and expands the existing upward departure language in two ways. First, the amendment clarifies the circumstances in which an upward departure for exceptional cruelty may be warranted. As reflected in the revised departure provision, the base offense levels provided for animal fighting ventures in subsections (a)(1) and (a)(3) reflect the fact that an animal fighting venture involves one or more violent fights between animals and that a defeated animal often is severely injured in the fight, dies as a result of the fight, or is killed afterward. The Commission heard testimony that in a typical dog fight, dogs puncture and tear at each other, until one animal is too injured to continue, and during a cock fight, roosters strike each other with their beaks and with sharp blades that have been strapped to their legs, suffering punctured lungs, broken bones, and pierced eyes. Nonetheless, as informed by public comment and testimony, the Commission’s study indicates that some animal fighting offenses involve extraordinary cruelty to an animal beyond that which is common to such crimes, such as killing an animal in a way that prolongs the suffering of the animal. The Commission determined that such extraordinary cruelty may fall outside the heartland of conduct PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 27265 encompassed by the base offense level for animal fighting ventures and, therefore, that an upward departure may be warranted in those cases. Similarly, the amendment expands the existing departure provision to include offenses involving animal fighting on an exceptional scale (such as offenses involving an unusually large number of animals) as another example of conduct that may warrant an upward departure. As with the example of extraordinary cruelty, the Commission determined that the base offense level under the revised guideline may understate the seriousness of the offense in those cases. 3. Amendment: Section 2G2.1 is amended in subsection (b)(3) by striking ‘‘If the offense involved distribution’’ and inserting ‘‘If the defendant knowingly engaged in distribution’’; and in subsection (b)(4) by inserting ‘‘(A)’’ before ‘‘sadistic or masochistic’’, and by inserting after ‘‘violence’’ the following: ‘‘; or (B) an infant or toddler’’. The Commentary to § 2G2.1 captioned ‘‘Statutory Provisions’’ is amended by inserting at the end the following: ‘‘For additional statutory provision(s), see Appendix A (Statutory Index).’’. The Commentary to § 2G2.1 captioned ‘‘Application Notes’’ is amended by redesignating Notes 3, 4, 5, and 6 as Notes 5, 6, 7, and 8, respectively, and by inserting after Note 2 the following new Notes 3 and 4: ‘‘3. Application of Subsection (b)(3).— For purposes of subsection (b)(3), the defendant ‘knowingly engaged in distribution’ if the defendant (A) knowingly committed the distribution, (B) aided, abetted, counseled, commanded, induced, procured, or willfully caused the distribution, or (C) conspired to distribute. 4. Interaction of Subsection (b)(4)(B) and Vulnerable Victim (§ 3A1.1(b)).—If subsection (b)(4)(B) applies, do not apply § 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 engaged in distribution,’’; and in subsection (b)(4) by inserting ‘‘(A)’’ before ‘‘sadistic or masochistic’’, E:\FR\FM\05MYN2.SGM 05MYN2 mstockstill on DSK3G9T082PROD with NOTICES2 27266 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices and by inserting after ‘‘violence’’ the following: ‘‘; or (B) sexual abuse or exploitation of an infant or toddler.’’ The Commentary to § 2G2.2 captioned ‘‘Statutory Provisions’’ is amended by inserting at the end the following: ‘‘For additional statutory provision(s), see Appendix A (Statutory Index).’’. The Commentary to § 2G2.2 captioned ‘‘Application Notes’’ is amended in Note 1 by striking the fourth undesignated paragraph as follows: ‘‘ ‘Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain’ means any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. ‘Thing of value’ means anything of valuable consideration. For example, in a case involving the bartering of child pornographic material, the ‘thing of value’ is the child pornographic material received in exchange for other child pornographic material bartered in consideration for the material received.’’, and inserting the following: ‘‘ ‘ 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.’’; by redesignating Notes 2 through 7 as Notes 3, 5, 6, 7, 8, and 9, respectively; by inserting after Note 1 the following new Note 2: ‘‘2. Application of Subsection (b)(3)(F).—For purposes of subsection (b)(3)(F), the defendant ‘knowingly engaged in distribution’ if the defendant (A) knowingly committed the distribution, (B) aided, abetted, counseled, commanded, induced, procured, or willfully caused the distribution, or (C) conspired to distribute.’’; in Note 3 (as so redesignated) by inserting ‘‘(A)’’ after ‘‘(b)(4)’’ both places such term appears; and by inserting after Note 3 (as so redesignated) the following new Note 4: ‘‘4. Interaction of Subsection (b)(4)(B) and Vulnerable Victim (§ 3A1.1(b)).—If subsection (b)(4)(B) applies, do not apply § 3A1.1(b).’’. Section 2G3.1 is amended in subsection (b)(1) by striking ‘‘If the offense involved’’; VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 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 engaged in distribution,’’. The Commentary to § 2G3.1 captioned ‘‘Application Notes’’ is amended in Note 1 by striking the fourth undesignated paragraph as follows: ‘‘ ‘Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain’ means any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. ‘Thing of value’ means anything of valuable consideration.’’, and inserting the following: ‘‘ ‘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 obscene material, preferential access to obscene material, or access to a child.’’; by redesignating Notes 2 and 3 as Notes 3 and 4, respectively; and by inserting after Note 1 the following new Note 2: ‘‘2. Application of Subsection (b)(1)(F).—For purposes of subsection (b)(1)(F), the defendant ‘knowingly engaged in distribution’ if the defendant (A) knowingly committed the distribution, (B) aided, abetted, counseled, commanded, induced, procured, or willfully caused the distribution, or (C) conspired to distribute.’’. Reason for Amendment: This amendment addresses circuit conflicts and application issues related to the child pornography guidelines. One issue generally 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 frequently 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 PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 offenses. See United States Sentencing Commission, ‘‘Report to the Congress: Federal Child Pornography Offenses,’’ at 33–35 (2012). Offenses Involving Infants and Toddlers First, the amendment addresses differences among the circuits when cases involve infant and toddler victims. The production guideline at § 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) 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 § 2G2.1(b)(1)(A)–(B). The nonproduction guideline at § 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) 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 § 2G2.2(b)(2). A circuit conflict has arisen as to whether a defendant who receives an age enhancement under §§ 2G2.1 and 2G2.2 may also receive a vulnerable victim adjustment at § 3A1.1 (Hate Crime Motivation or Vulnerable Victim) when the victim is extremely young and vulnerable, such as an infant or toddler. Section 3A1.1(b)(1) provides for a 2level increase if the defendant knew or should have known that a victim was a ‘‘vulnerable victim,’’ which is defined in the accompanying commentary as a victim ‘‘who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.’’ See § 3A1.1, comment. (n.2). The commentary also provides that the vulnerable victim adjustment does not apply if the factor that makes the victim a ‘‘vulnerable victim,’’ such as age, is incorporated in the offense guidelines, ‘‘unless the victim was unusually vulnerable for reasons unrelated to age.’’ Id. The Fifth and Ninth Circuits have held that it is permissible to apply both enhancements in cases involving infant or toddler victims because their level of vulnerability is not fully incorporated in the offense guidelines. See United States v. Jenkins, 712 F.3d 209, 214 (5th E:\FR\FM\05MYN2.SGM 05MYN2 mstockstill on DSK3G9T082PROD with NOTICES2 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices Cir. 2013); United States v. Wright, 373 F.3d 935, 943 (9th Cir. 2004). These circuits have reasoned that although the victim’s small physical size and extreme vulnerability tend to correlate with age, such characteristics are not the same as compared to most children under 12 years. Jenkins, 712 F.3d at 214; Wright, 373 F.3d at 942–43. The Fourth Circuit, by contrast, has held that the age enhancement and vulnerable victim adjustment may not be simultaneously applied because the child pornography guidelines fully address age-related factors. See United States v. Dowell, 771 F.3d 162, 175 (4th Cir. 2014). The Fourth Circuit reasoned that cognitive development or psychological susceptibility necessarily is related to age. Id. The amendment resolves the circuit conflict by explicitly accounting for infant and toddler victims in the child pornography guidelines. Specifically, the amendment revises §§ 2G2.1 and 2G2.2 by adding a new basis for application of the ‘‘sadistic or masochistic’’ enhancement when the offense involves infants or toddlers. The amendment amends § 2G2.1(b)(4) to provide for a 4-level increase ‘‘if the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) an infant or toddler,’’ and amends § 2G2.2(b)(4) to provide a 4-level increase ‘‘if the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) sexual abuse or exploitation of an infant or toddler.’’ The accompanying application note to each guideline provides that if subsection (b)(4)(B) applies, do not apply the vulnerable victim adjustment in Chapter Three. The amendment reflects the Commission’s view, based on testimony and public comment, that child pornography offenses involving infants and toddlers warrant an enhancement. Because application of the vulnerable victim adjustment necessarily relies on a fact-specific inquiry, the Commission determined that expanding the ‘‘sadistic or masochistic’’ enhancement (§§ 2G2.1(b)(4) and 2G2.2(b)(4)) to include infant and toddler victims would promote more consistent application of the child pornography guidelines and reduce unwarranted sentencing disparities. In making its determination, the Commission was informed by case law indicating that most circuits have found depictions of the sexual abuse or exploitation of infants or toddlers involving penetration or pain portray sadistic conduct. See, e.g., United States v. Hoey, 508 F.3d VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 687, 691 (1st Cir. 2007) (‘‘We agree with the many circuits which have found that images depicting the sexual penetration of young and prepubescent children by adult males represent conduct sufficiently likely to involve pain such as to support a finding that it is inherently ‘sadistic’ or similarly ‘violent’ . . . .’’); United States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996) (‘‘[S]ubjection of a young child to a sexual act that would have to be painful is excessively cruel and hence is sadistic . . . .’’); United States v. Maurer, 639 F.3d 72, 79 (3d Cir. 2011) (‘‘[W]e join other circuits in holding that the application of § 2G2.2(b)(4) is appropriate where an image depicts sexual activity involving a prepubescent minor that would have caused pain to the minor.’’); United States v. Burgess, 684 F.3d 445, 454 (4th Cir. 2012) (image depicting vaginal penetration of fiveyear-old girl by adult male, which would ‘‘necessarily cause physical pain to the victim,’’ qualified for sentencing enhancement under § 2G2.2(b)); United States v. Lyckman, 235 F.3d 234, 238– 39 (5th Cir. 2000) (agreeing with the Second, Seventh, and Eleventh Circuits that application of subsection (b)(4) is warranted when the image depicts ‘‘the physical penetration of a young child by an adult male.’’); United States v. Groenendal, 557 F.3d 419, 424–26 (6th Cir. 2009) (penetration of a prepubescent child by an adult male constitutes inherently sadistic conduct that justifies application of § 2G2.2(b)(4)); United States v. Meyers, 355 F.3d 1040, 1043 (7th Cir. 2004) (finding vaginal intercourse between a prepubescent girl and an adult male sadistic); United States v. Belflower, 390 F.3d 560, 562 (8th Cir. 2004) (images involving the anal penetration of minor boy or girl adult male are per se sadistic or violent within the meaning of subsection (b)(4)); United States v. Henderson, 649 F.3d 995 (9th Cir. 2010) (vaginal penetration of prepubescent minor qualifies for (b)(4) enhancement); United States v. Kimler, 335 F.3d 1132, 1143 (10th Cir. 2003) (finding no expert testimony necessary for a sentence enhancement [(b)(4)] when the images depicted penetration of prepubescent children by adults); United States v. Bender, 290 F.3d 1279, 1286 (11th Cir. 2002) (photograph was sadistic within the meaning of subsection (b)(4) when it depicts the ‘‘subjugation of a young child to a sexual act that would have to be painful’’). The Commission intends the new enhancement to apply to any sexual images of an infant or toddler. PO 00000 Frm 00007 Fmt 4701 Sfmt 4703 27267 The Two and Five Level Distribution Enhancements Next, the amendment addresses differences among the circuits involving application of the tiered distribution enhancements in § 2G2.2. Section 2G2.2(b)(3) provides for an increase for distribution of child pornographic material ranging from 2 to 7 levels depending on certain factors. See § 2G2.2(b)(3)(A)–(F). The circuits have reached different conclusions regarding the mental state required for application of the 2-level enhancement for ‘‘generic’’ distribution as compared to the 5-level enhancement for distribution not for pecuniary gain. The circuit conflicts involving these two enhancements have arisen frequently, although not exclusively, in cases involving the use of peer-to-peer filesharing programs or networks. Peer-to-Peer File-Sharing Programs The Commission’s 2012 report to Congress discussed the use of filesharing programs, such as Peer-to-Peer (‘‘P2P’’), in the context of cases involving distribution of child pornography. See 2012 Report at 33–35, 48–62. Specifically, P2P is a software application that enables computer users to share files easily over the Internet. These applications do not require a central server or use of email. Rather, the file-sharing application allows two or more users to essentially have access each other’s computers and to directly swap files from their computers. Some file-sharing programs require a user to designate files to be shared during the installation process, meaning that at the time of installation the user can ‘‘opt in’’ to share files, and the software will automatically scan the user’s computer and then compile a list of files to share. Other programs employ a default filesharing setting, meaning the user can ‘‘opt out’’ of automatically sharing files by changing the default setting to limit which, if any, files are available for sharing. Once the user has downloaded and set up the file-sharing software, the user can begin searching for files shared on the connected network using search keywords in the same way one regularly uses a search engine such as Google. Users may choose to ‘‘opt in’’ for a variety of reasons, including, for example, to obtain faster download speeds, to have access to a greater range of material, or because the particular site mandates sharing. The 2-Level Distribution Enhancement The circuits have reached different conclusions regarding whether application of the 2-level distribution E:\FR\FM\05MYN2.SGM 05MYN2 mstockstill on DSK3G9T082PROD with NOTICES2 27268 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices enhancement at § 2G2.2(b)(3)(F) requires a mental state (mens rea), particularly in cases involving use of a file-sharing program or network. The Fifth, Tenth, and Eleventh Circuits have held that the 2-level distribution enhancement applies if the defendant used a filesharing program, regardless of whether the defendant did so purposefully, knowingly, or negligently. See, e.g., United States v. Baker, 742 F.3d 618, 621 (5th Cir. 2014); United States v. Ray, 704 F.3d 1307, 1312 (10th Cir. 2013); United States v. Creel, 783 F.3d 1357, 1360 (11th Cir. 2015). The Second, Fourth, and Seventh Circuits have held that the 2-level distribution enhancement requires a showing that the defendant knew of the file-sharing properties of the program. See, e.g., United States v. Baldwin, 743 F.3d 357, 361 (2d 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). The Eighth Circuit has held that knowledge is required, but knowledge may be inferred from the fact that a file-sharing program was used, absent ‘‘concrete evidence’’ of ignorance. See United States v. Dodd, 598 F.3d 449, 452 (8th Cir. 2010). The Sixth Circuit has held 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); see also United States v. Abbring, 788 F.3d 565, 567 (6th Cir. 2015) (‘‘the whole point of a file-sharing program is to share, sharing creates a transfer, and transferring equals distribution’’). The amendment generally adopts the approach of the Second, Fourth, and Seventh Circuits. It amends § 2G2.2(b)(3)(F) to provide that the 2level distribution enhancement applies if ‘‘the defendant knowingly engaged in distribution.’’ Based on testimony, public comment, and data analysis, the Commission determined that the 2-level distribution enhancement is appropriate only in cases in which the defendant knowingly engaged in distribution. An accompanying application note clarifies that: ‘‘For purposes of subsection (b)(3)(F), the defendant ‘knowingly engaged in distribution’ if the defendant (A) knowingly committed the distribution, (B) aided, abetted, counseled, commanded, induced, procured, or willfully caused the distribution, or (C) conspired to distribute.’’ Similar changes are made to the 2-level distribution enhancement at § 2G2.1(b)(3) and the obscenity VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 guideline, § 2G3.1 (Importing, Mailing, or Transporting Obscene Matter; Transferring Obscene Matter to a Minor; Misleading Domain Names), which contains a similarly tiered distribution enhancement. The 5-Level Distribution Enhancement Finally, the amendment responds to differences among the circuits in applying the 5-level enhancement for distribution not for pecuniary gain at § 2G2.2(b)(3)(B). While courts generally agree that mere use of a file-sharing program or network, without more, is insufficient for application of the 5-level distribution enhancement, the circuits have taken distinct approaches with respect to the circumstances under which the 5-level rather than the 2-level enhancement is appropriate in such circumstances. The Fourth Circuit has held that the 5-level distribution enhancement applies when 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). In contrast, while holding that the 5-level enhancement applies when the defendant knew he was distributing child pornographic material in exchange for a thing of value, 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). The amendment revises § 2G2.2(b)(3)(B) and commentary to clarify that the 5-level enhancement applies ‘‘if the defendant distributed in exchange for any valuable consideration.’’ The amendment further explains in the accompanying application note that this 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.’’ The amendment makes parallel changes to the obscenity guideline at § 2G3.1, which has a similar tiered distribution enhancement. As with the 2-level distribution enhancement, the amendment resolves differences among the circuits in applying the 5-level distribution enhancement by clarifying the mental state required for distribution of child PO 00000 Frm 00008 Fmt 4701 Sfmt 4703 pornographic material for nonpecuniary gain, particularly when the case involves a file-sharing program or network. The Commission determined that the amendment is an appropriate way to account for the higher level of culpability when the defendant had the specific purpose of distributing child pornographic material to another person in exchange for valuable consideration. 4. Amendment: Section 2L1.1 is amended in subsection (b)(4) by striking the following: ‘‘If the defendant smuggled, transported, or harbored a minor who was unaccompanied by the minor’s parent or grandparent, increase by 2 levels.’’, and inserting the following: ‘‘If the offense involved the smuggling, transporting, or harboring of a minor who was unaccompanied by the minor’s parent, adult relative, or legal guardian, increase by 4 levels.’’. The Commentary to § 2L1.1 captioned ‘‘Application Notes’’ is amended in Note 1 by striking the third undesignated paragraph as follows: ‘‘ ‘Aggravated felony’ is defined in the Commentary to § 2L1.2 (Unlawfully Entering or Remaining in the United States).’’, and inserting the following: ‘‘ ‘Aggravated felony’ has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)), without regard to the date of conviction for the aggravated felony.’’; 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 § 1B1.1 (Application Instructions).’’; by renumbering Notes 2 through 6 according to the following table: Before Amendment 4 5 6 2 3 After Amendment ................................................ ................................................ ................................................ ................................................ ................................................ and by rearranging those Notes, as so renumbered, to place them in proper order; and by inserting after Note 3 (as so renumbered) the following new Note 4: E:\FR\FM\05MYN2.SGM 05MYN2 2 3 5 6 7 mstockstill on DSK3G9T082PROD with NOTICES2 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices ‘‘4. Application of Subsection (b)(7) to Conduct Constituting Criminal Sexual Abuse.—Consistent with Application Note 1(L) of § 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 2242 or any similar offense under state law.’’. Section 2L1.2 is amended by striking subsections (a) and (b) as follows: ‘‘ (a) Base Offense Level: 8 (b) Specific Offense Characteristic (1) Apply the Greatest: If the defendant previously was deported, or unlawfully remained in the United States, after— (A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels if the conviction receives criminal history points under Chapter Four or by 12 levels if the conviction does not receive criminal history points; (B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels if the conviction receives criminal history points under Chapter Four or by 8 levels if the conviction does not receive criminal history points; (C) a conviction for an aggravated felony, increase by 8 levels; (D) a conviction for any other felony, increase by 4 levels; or (E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 4 levels.’’, and inserting the following: ‘‘ (a) Base Offense Level: 8 (b) Specific Offense Characteristics (1) (Apply the Greater) If the defendant committed the instant offense after sustaining— (A) a conviction for a felony that is an illegal reentry offense, increase by 4 levels; or (B) two or more convictions for misdemeanors under 8 U.S.C. 1325(a), increase by 2 levels. (2) (Apply the Greatest) If, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant sustained— (A) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was five years or more, increase by 10 levels; VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 (B) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was two years or more, increase by 8 levels; (C) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed exceeded one year and one month, increase by 6 levels; (D) a conviction for any other felony offense (other than an illegal reentry offense), increase by 4 levels; or (E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 2 levels. (3) (Apply the Greatest) If, at any time after the defendant was ordered deported or ordered removed from the United States for the first time, 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 five years or more, increase by 10 levels; (B) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was two years or more, increase by 8 levels; (C) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed exceeded one year and one month, increase by 6 levels; (D) a conviction for any other felony offense (other than an illegal reentry offense), increase by 4 levels; or (E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 2 levels.’’. The Commentary to § 2L1.2 captioned ‘‘Statutory Provisions’’ is amended by striking ‘‘8 U.S.C. 1325(a) (second or subsequent offense only), 8 U.S.C. 1326’’ and inserting ‘‘8 U.S.C. 1253, 1325(a) (second or subsequent offense only), 1326’’. The Commentary to § 2L1.2 captioned ‘‘Application Notes’’ is amended by striking Notes 1 through 7 as follows: ‘‘1. Application of Subsection (b)(1).— (A) In General.—For purposes of subsection (b)(1): (i) A defendant shall be considered to be deported after a conviction if the defendant has been removed or has departed the United States while an order of exclusion, deportation, or removal was outstanding. (ii) A defendant shall be considered to be deported after a conviction if the deportation was subsequent to the conviction, regardless of whether the deportation was in response to the conviction. (iii) A defendant shall be considered to have unlawfully remained in the PO 00000 Frm 00009 Fmt 4701 Sfmt 4703 27269 United States if the defendant remained in the United States following a removal order issued after a conviction, regardless of whether the removal order was in response to the conviction. (iv) Subsection (b)(1) does not apply to a conviction for an offense committed before the defendant was eighteen years of age unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted. (B) Definitions.—For purposes of subsection (b)(1): (i) ‘Alien smuggling offense’ has the meaning given that term in section 101(a)(43)(N) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)(N)). (ii) ‘Child pornography offense’ means (I) an offense described in 18 U.S.C. 2251, 2251A, 2252, 2252A, or 2260; or (II) an offense under state or local law consisting of conduct that would have been an offense under any such section if the offense had occurred within the special maritime and territorial jurisdiction of the United States. (iii) ‘Crime of violence’ means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. (iv) ‘Drug trafficking offense’ means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. (v) ‘Firearms offense’ means any of the following: (I) An offense under federal, state, or local law that prohibits the importation, distribution, transportation, or trafficking of a firearm described in 18 U.S.C. 921, or of an explosive material as defined in 18 U.S.C. 841(c). (II) An offense under federal, state, or local law that prohibits the possession of a firearm described in 26 U.S.C. 5845(a), or of an explosive material as defined in 18 U.S.C. 841(c). (III) A violation of 18 U.S.C. 844(h). E:\FR\FM\05MYN2.SGM 05MYN2 mstockstill on DSK3G9T082PROD with NOTICES2 27270 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices (IV) A violation of 18 U.S.C. 924(c). (V) A violation of 18 U.S.C. 929(a). (VI) An offense under state or local law consisting of conduct that would have been an offense under subdivision (III), (IV), or (V) if the offense had occurred within the special maritime and territorial jurisdiction of the United States. (vi) ‘Human trafficking offense’ means (I) any offense described in 18 U.S.C. 1581, 1582, 1583, 1584, 1585, 1588, 1589, 1590, or 1591; or (II) an offense under state or local law consisting of conduct that would have been an offense under any such section if the offense had occurred within the special maritime and territorial jurisdiction of the United States. (vii) ‘Sentence imposed’ has the meaning given the term ‘sentence of imprisonment’ in Application Note 2 and subsection (b) of § 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. (viii) ‘Terrorism offense’ means any offense involving, or intending to promote, a ‘Federal crime of terrorism’, as that term is defined in 18 U.S.C. 2332b(g)(5). (C) Prior Convictions.—In determining the amount of an enhancement under subsection (b)(1), note that the levels in subsections (b)(1)(A) and (B) depend on whether the conviction receives criminal history points under Chapter Four (Criminal History and Criminal Livelihood), while subsections (b)(1)(C), (D), and (E) apply without regard to whether the conviction receives criminal history points. 2. Definition of ‘Felony’.—For purposes of subsection (b)(1)(A), (B), and (D), ‘felony’ means any federal, state, or local offense punishable by imprisonment for a term exceeding one year. 3. Application of Subsection (b)(1)(C).— (A) Definitions.—For purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)), without regard to the date of conviction for the aggravated felony. (B) In General.—The offense level shall be increased under subsection (b)(1)(C) for any aggravated felony (as defined in subdivision (A)), with respect to which the offense level is not VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 increased under subsections (b)(1)(A) or (B). 4. Application of Subsection (b)(1)(E).—For purposes of subsection (b)(1)(E): (A) ‘Misdemeanor’ means any federal, state, or local offense punishable by a term of imprisonment of one year or less. (B) ‘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 § 4A1.2 (Definitions and Instructions for Computing Criminal History). 5. Aiding and Abetting, Conspiracies, and Attempts.—Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses. 6. Computation of Criminal History Points.—A conviction taken into account under subsection (b)(1) is not excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four, Part A (Criminal History). 7. Departure Based on Seriousness of a Prior Conviction.—There may be cases in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction. In such a case, a departure may be warranted. Examples: (A) In a case in which subsection (b)(1)(A) or (b)(1)(B) does not apply and the defendant has a prior conviction for possessing or transporting a quantity of a controlled substance that exceeds a quantity consistent with personal use, an upward departure may be warranted. (B) In a case in which the 12-level enhancement under subsection (b)(1)(A) or the 8-level enhancement in subsection (b)(1)(B) applies but that enhancement does not adequately reflect the extent or seriousness of the conduct underlying the prior conviction, an upward departure may be warranted. (C) In a case in which subsection (b)(1)(A) applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. 1101(a)(43), a downward departure may be warranted.’’; by redesignating Notes 8 and 9 as Notes 6 and 7, respectively, and inserting before Note 6 (as so redesignated) the following new Notes 1, 2, 3, 4, and 5: ‘‘1. In General.— (A) ‘Ordered Deported or Ordered Removed from the United States for the First Time’.—For purposes of this guideline, a defendant shall be considered ‘ordered deported or ordered removed from the United States’ if the defendant was ordered deported or PO 00000 Frm 00010 Fmt 4701 Sfmt 4703 ordered removed from the United States based on a final order of exclusion, deportation, or removal, regardless of whether the order was in response to a conviction. ‘For the first time’ refers to the first time the defendant was ever the subject of such an order. (B) Offenses Committed Prior to Age Eighteen.—Subsections (b)(1), (b)(2), and (b)(3) do not apply to a conviction for an offense committed before the defendant was eighteen years of age unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted. 2. Definitions.—For purposes of this guideline: ‘Crime of violence’ means any of the following offenses under federal, state, or local law: murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c), or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. ‘Forcible sex offense’ includes where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. 2241(c) or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States. ‘Extortion’ is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury. ‘Drug trafficking offense’ means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. ‘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 1326, or (B) a second or subsequent offense under 8 U.S.C. 1325(a). E:\FR\FM\05MYN2.SGM 05MYN2 mstockstill on DSK3G9T082PROD with NOTICES2 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices ‘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 § 4A1.2 (Definitions and Instructions for Computing Criminal History). The length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervised release. 3. Criminal History Points.—For purposes of applying subsections (b)(1), (b)(2), and (b)(3), use only those convictions that receive criminal history points under § 4A1.1(a), (b), or (c). In addition, for purposes of subsections (b)(1)(B), (b)(2)(E), and (b)(3)(E), use only those convictions that are counted separately under § 4A1.2(a)(2). A conviction taken into account under subsection (b)(1), (b)(2), or (b)(3) is not excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four, Part A (Criminal History). 4. Cases in Which Sentences for An Illegal Reentry Offense and Another Felony Offense were Imposed at the Same Time.—There may be cases in which the sentences for an illegal reentry offense and another felony offense were imposed at the same time and treated as a single sentence for purposes of calculating the criminal history score under § 4A1.1(a), (b), and (c). In such a case, use the illegal reentry offense in determining the appropriate enhancement under subsection (b)(1), if it independently would have received criminal history points. In addition, use the prior sentence for the other felony offense in determining the appropriate enhancement under subsection (b)(3), if it independently would have received criminal history points. 5. Departure Based on Seriousness of a Prior Offense.—There may be cases in which the offense level provided by an enhancement in subsection (b)(2) or (b)(3) substantially understates or overstates the seriousness of the conduct underlying the prior offense, because (A) the length of the sentence imposed does not reflect the seriousness of the prior offense; (B) the prior conviction is too remote to receive criminal history points (see § 4A1.2(e)); or (C) the time actually served was substantially less than the length of the sentence imposed for the prior offense. In such a case, a departure may be warranted.’’. The Commentary to § 5G1.3 captioned ‘‘Application Notes’’ is amended in Note 2(B) by striking ‘‘an aggravated VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 felony’’ and inserting ‘‘a prior conviction’’. Reason for Amendment: This multipart amendment is a result of the Commission’s multi-year study of immigration offenses and related guidelines, and reflects extensive data collection and analysis relating to immigration offenses and offenders. Based on this data, legal analysis, and public comment, the Commission identified a number of specific areas where changes were appropriate. The first part of this amendment makes several discrete changes to the alien smuggling guideline, § 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien), while the second part significantly revises the illegal reentry guideline, § 2L1.2 (Unlawfully Entering or Remaining in the United States). Alien Smuggling The first part of the amendment amends the alien smuggling guideline (§ 2L1.1). A 2014 letter from the Deputy Attorney General asked the Commission to examine several aspects of this guideline in light of changing circumstances surrounding the commission of these offenses. See Letter from James M. Cole to Hon. Patti B. Saris (Oct. 9, 2014). In response, the Commission undertook a data analysis that, in conjunction with additional public comment, suggested two primary areas for change in the guideline. Unaccompanied Minors The specific offense characteristic at § 2L1.1(b)(4) provides an enhancement ‘‘[i]f the defendant smuggled, transported, or harbored a minor who was unaccompanied by the minor’s parent or grandparent.’’ The amendment makes several changes to this enhancement. First, the amendment increases the enhancement at subsection (b)(4) from 2 levels to 4 levels, and broadens its scope to offense-based rather than defendantbased. These two changes were made in light of data, testimony, and public comment indicating that: (1) in recent years there has been a significant increase in the number of unaccompanied minors smuggled into the United States; (2) unaccompanied minors being smuggled are often exposed to deprivation and physical danger (including sexual abuse); (3) the smuggling of unaccompanied minors places a particularly severe burden on public resources when they are taken into custody; and (4) alien smuggling is typically conducted by multimember commercial enterprises that accept smuggling victims without regard to PO 00000 Frm 00011 Fmt 4701 Sfmt 4703 27271 their age, such that an individual defendant is likely to be aware of the risk that unaccompanied minors are being smuggled as part of the offense. Second, the amendment narrows the scope of the enhancement at subsection (b)(4) by revising the meaning of an ‘‘unaccompanied’’ minor. Prior to the amendment, the enhancement did not apply if the minor was accompanied by the minor’s parent or grandparent. The amendment narrows the class of offenders who would receive the enhancement by specifying that the enhancement does not apply if the minor was accompanied by the minor’s ‘‘parent, adult relative, or legal guardian.’’ This change reflects the view that minors who are accompanied by a parent or another responsible adult relative or legal guardian ordinarily are not subject to the same level of risk as minors unaccompanied by such adults. Third, the amendment expands the definition of ‘‘minor’’ in the guideline, as it relates to the enhancement in subsection (b)(4), to include an individual under the age of 18. The guideline currently defines ‘‘minor’’ to include only individuals under 16 years of age. The Commission determined that an expanded definition of minor that includes 16- and 17-year-olds is consistent with other aspects of federal immigration law, including the statute assigning responsibility for unaccompanied minors under age 18 to the Department of Health and Human Services. See 6 U.S.C. 279(g)(2)(B). The Commission also believed that it was appropriate to conform the definition of minor in the alien smuggling guideline to the definition of minor in § 3B1.4 (Using a Minor to Commit a Crime). Clarification of the Enhancement Applicable to Sexual Abuse of Aliens The amendment addresses offenses in which an alien (whether or not a minor) is sexually abused. Specifically, it ensures that a ‘‘serious bodily injury’’ enhancement of 4 levels will apply in such a case. It achieves this by amending the commentary to § 2L1.1 to clarify that the term ‘‘serious bodily injury’’ included in subsection (b)(7)(B) has the meaning given that term in the commentary to § 1B1.1 (Application Instructions). That instruction 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 2242 or any similar offense under state law. The Commission’s data indicated that the (b)(7)(B) enhancement has not been applied in some cases in which a smuggled alien had been sexually assaulted. The Commission determined E:\FR\FM\05MYN2.SGM 05MYN2 27272 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices mstockstill on DSK3G9T082PROD with NOTICES2 that this clarification is warranted to ensure that the 4-level enhancement is consistently applied when the offense involves the sexual abuse of an alien. Illegal Reentry The second part of the amendment is the product of the Commission’s multiyear study of the illegal reentry guideline. In considering this amendment, the Commission was informed by the Commission’s 2015 report, Illegal Reentry Offenses; its previous consideration of the ‘‘categorical approach’’ in the context of the definition of ‘‘crimes of violence’’; and extensive public testimony and public comment, in particular from judges from the southwest border districts where the majority of illegal reentry prosecutions occur. The amendment responds to three primary concerns. First, the Commission has received significant comment over several years from courts and stakeholders that the ‘‘categorical approach’’ used to determine the particular level of enhancement under the existing guideline is overly complex and resource-intensive and often leads to litigation and uncertainty. The existing guideline’s single specific offense characteristic provides for enhancements of between 4 levels and 16 levels, based on the nature of a defendant’s most serious conviction that occurred before the defendant was ‘‘deported’’ or ‘‘unlawfully remained in the United States.’’ Determining whether a predicate conviction qualifies for a particular level of enhancement requires application of the categorical approach to the penal statute underlying the prior conviction. See generally United States v. Taylor, 495 U.S. 575 (1990) (establishing the categorical approach). Instead of the categorical approach, the amendment adopts a much simpler sentence-imposed model for determining the applicability of predicate convictions. The level of the sentencing enhancement for a prior conviction generally will be determined by the length of the sentence imposed for the prior offense, not by the type of offense for which the defendant had been convicted. The definition of ‘‘sentence imposed’’ is the same definition that appears in Chapter Four of the Guidelines Manual. Second, comment received by the Commission and sentencing data indicated that the existing 16- and 12level enhancements for certain prior felonies committed before a defendant’s deportation were overly severe. In fiscal year 2015, only 29.7 percent of defendants who received the 16-level enhancement were sentenced within the VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 applicable sentencing guideline range, and only 32.4 percent of defendants who received the 12-level enhancement were sentenced within the applicable sentencing guideline range. Third, the Commission’s research identified a concern that the existing guideline did not account for other types of criminal conduct committed by illegal reentry offenders. The Commission’s 2015 report found that 48.0 percent of illegal reentry offenders were convicted of at least one offense (other than their instant illegal reentry conviction) after their first deportations. The amendment addresses these concerns by accounting for prior criminal conduct in a broader and more proportionate manner. The amendment reduces somewhat the level of enhancements for criminal conduct occurring before the defendant’s first order of deportation and adds a new enhancement for criminal conduct occurring after the defendant’s first order of deportation. It also responds to concerns that prior convictions for illegal reentry offenses may not be adequately accounted for in the existing guideline by adding an enhancement for prior illegal reentry and multiple prior illegal entry convictions. The manner in which the amendment responds to each of these concerns is discussed in more detail below. Accounting for Prior Illegal Reentry Offenses The amendment provides at subsection (b)(1) a new tiered enhancement based on prior convictions for illegal reentry offenses under 8 U.S.C. 1253, 1325(a), or 1326. A defendant who has one or more felony illegal reentry convictions will receive an increase of 4 levels. ‘‘Illegal reentry offense’’ is defined in the commentary to include all convictions under 8 U.S.C. 1253 (failure to depart after an order of removal) and 1326 (illegal reentry), as well as second or subsequent illegal entry convictions under § 1325(a). A defendant who has two or more misdemeanor illegal entry convictions under 8 U.S.C. 1325(a) will receive an increase of 2 levels. The Commission’s data indicates that the extent of a defendant’s history of illegal reentry convictions is associated with the number of his or her prior deportations or removals from the United States, with the average illegal reentry defendant having been removed from the United States 3.2 times. Illegal Reentry Offenses, at 14. Over one-third (38.1%) of the defendants were previously deported after an illegal entry or reentry conviction. Id. at 15. The Commission determined that a PO 00000 Frm 00012 Fmt 4701 Sfmt 4703 defendant’s demonstrated history of violating §§ 1325(a) and 1326 is appropriately accounted for in a separate enhancement. Because defendants with second or successive § 1325(a) convictions (whether they were charged as felonies or misdemeanors) have entered illegally more than once, the Commission determined that this conduct is appropriately accounted for under this enhancement. For a defendant with a conviction under § 1326, or a felony conviction under § 1325(a), the 4-level enhancement in the new subsection (b)(1)(A) is identical in magnitude to the enhancement the defendant would receive under the existing subsection (b)(1)(D). The Commission concluded that an enhancement is also appropriate for defendants previously convicted of two or more misdemeanor offenses under § 1325(a). Accounting for Other Prior Convictions Subsections (b)(2) and (b)(3) of the amended guideline account for convictions (other than illegal entry or reentry convictions) primarily through a sentence-imposed approach, which is similar to how Chapter Four of the Guidelines Manual determines a defendant’s criminal history score based on his or her prior convictions. The two subsections are intended to divide the defendant’s criminal history into two time periods. Subsection (b)(2) reflects the convictions, if any, that the defendant sustained before being ordered deported or removed from the United States for the first time. Subsection (b)(3) reflects the convictions, if any, that the defendant sustained after that event (but only if the criminal conduct that resulted in the conviction took place after that event). The specific offense characteristics at subsections (b)(2) and (b)(3) each contain a parallel set of enhancements of: • 10 levels for a prior felony conviction that received a sentence of imprisonment of five years or more; • 8 levels for a prior felony conviction that received a sentence of two years or more; • 6 levels for a prior felony conviction that received a sentence exceeding one year and one month; • 4 levels for any other prior felony conviction • 2 levels for three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses. The (b)(2) and (b)(3) specific offense characteristics are to be calculated separately, but within each specific E:\FR\FM\05MYN2.SGM 05MYN2 mstockstill on DSK3G9T082PROD with NOTICES2 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices offense characteristic, a defendant may receive only the single greatest applicable increase. The Commission determined that the new specific offense characteristics more appropriately provide for incremental punishment to reflect the varying levels of culpability and risk of recidivism reflected in illegal reentry defendants’ prior convictions. The (b)(2) specific offense characteristic reflects the same general rationale as the illegal reentry statute’s increased statutory maximum penalties for offenders with certain types of serious pre-deportation predicate offenses (in particular, ‘‘aggravated felonies’’ and ‘‘felonies’’). See 8 U.S.C. 1326(b)(1) and (b)(2). The Commission’s data analysis of offenders’ prior felony convictions showed that the more serious types of offenses, such as drug-trafficking offenses, crimes of violence, and sex offenses, tended to receive sentences of imprisonment of two years or more, while the less serious felony offenses, such as felony theft or drug possession, tended to receive much shorter sentences. The sentence-length benchmarks in (b)(2) are based on this data. The (b)(3) specific offense characteristic focuses on post-reentry criminal conduct which, if it occurred after a defendant’s most recent illegal reentry, would receive no enhancement under the existing guideline. The Commission concluded that a defendant who sustains criminal convictions occurring before and after the defendant’s first order of deportation warrants separate sentencing enhancement. The Commission concluded that the length of sentence imposed by a sentencing court is a strong indicator of the court’s assessment of the seriousness of the predicate offense at the time, and this approach is consistent with how criminal history is generally scored in the Chapter Four of the Guidelines Manual. In amending the guideline, the Commission also took into consideration public testimony and comment indicating that tiered enhancements based on the length of the sentence imposed, rather than the classification of a prior offense under the categorical approach, would greatly simplify application of the guideline. With respect an offender’s prior felony convictions, the amendment eliminates the use of the categorical approach, which has been criticized as cumbersome and overly legalistic. The amendment retains the use of the categorical approach for predicate misdemeanor convictions in the new subsections (b)(2)(E) and (b)(3)(E) in view of a congressional directive VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 requiring inclusion of an enhancement for certain types of misdemeanor offenses. See Illegal Immigration and Immigrant Responsibility Act of 1996, Pub. L. 104–208, § 344, 110 Stat. 3009. The amendment also addresses another frequent criticism of the existing guideline—that its use of a single predicate conviction sustained by a defendant before being deported or removed from the United States to impose an enhancement of up to 16 levels is often disproportionate to a defendant’s culpability or recidivism risk. The Commission’s data shows an unusually high rate of downward variances and departures from the guideline for such defendants. For example, the Commission’s report found that less than one-third of defendants who qualify for a 16-level enhancement have received a within-range sentence, while 92.7 percent of defendants who currently qualify for no enhancement receive a within-range sentence. Illegal Reentry Report, at 11. The lengths of the terms of imprisonment triggering each level of enhancement were set based on Commission data showing differing median sentence lengths for a variety of predicate offense categories. For example, the Commission’s data indicated that sentences for more serious predicate offenses, such as drugtrafficking and felony assault, exceeded the two- and five-year benchmarks far more frequently than did sentences for less serious felony offenses, such as drug possession and theft. With respect to drug-trafficking offenses, the Commission found that 34.6 percent of such offenses received sentences of between two and five years, and 17.0 percent of such offenses received sentences of five years or more. With respect to felony assault offenses, the Commission found that 42.1 percent of such offenses received sentences of between two and five years, and 9.0 percent of such offenses received sentences of five years or more. With respect to felony drug possession offenses, 67.7 percent of such offenses received sentences of 13 months or less, while only 21.3 percent received sentences between two years and five years and only 3.0 percent received sentences of five years or more. With respect to felony theft offenses, 57.1 percent of such offenses received sentences of 13 months or less, while only 17.4 percent received sentences between two years and five years and only 2.0 percent received sentences of five years or more. The Commission considered public comment suggesting that the term of imprisonment a defendant actually PO 00000 Frm 00013 Fmt 4701 Sfmt 4703 27273 served for a prior conviction was a superior means of assessing the seriousness of the prior offense. The Commission determined that such an approach would be administratively impractical due to difficulties in obtaining accurate documentation. The Commission determined that a sentence-imposed approach is consistent with the Chapter Four criminal history rules, easily applied, and appropriately calibrated to account for the seriousness of prior offenses. Departure Provision The amendment adds a new departure provision, at Application Note 5, applicable to situations where ‘‘an enhancement in subsection (b)(2) or (b)(3) substantially understates or overstates the seriousness of the conduct underlying the prior offense.’’ This departure accounts for three situations in which an enhancement based on the length of a prior imposed sentence appears either inadequate or excessive in light of the defendant’s underlying conduct. For example, if a prior serious conviction (e.g., murder) is not accounted for because it is not within the time limits set forth in § 4A1.2(e) and did not receive criminal history points, an upward departure may be warranted. Conversely, if the time actually served by the defendant for the prior offense was substantially less than the length of the original sentence imposed, a downward departure may be warranted. Excluding Stale Convictions For all three specific offense characteristics, the amendment considers prior convictions only if the convictions receive criminal history points under the rules in Chapter Four. Counting only convictions that receive criminal history points addresses concerns that the existing guideline sometimes has provided for an unduly severe enhancement based on a single offense so old it did not receive criminal history points. The Commission’s research has found that a defendant’s criminal history score is a strong indicator of recidivism risk, and it is therefore appropriate to employ the criminal history rules in this context. See U.S. Sent. Comm’n, Recidivism Among Federal Offenders: A Comprehensive Overview (2016). The limitation to offenses receiving criminal history points also promotes ease of application and uniformity throughout the guidelines. See 28 U.S.C. 994(c)(2) (directing the Commission to establish categories of offenses based on appropriate mitigating and aggravating factors); cf. USSG § 2K2.1, comment. E:\FR\FM\05MYN2.SGM 05MYN2 27274 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices (n.10) (imposing enhancements based on a defendant’s predicate convictions only if they received criminal history points). mstockstill on DSK3G9T082PROD with NOTICES2 Application of the ‘‘Single Sentence Rule’’ The amendment also contains an application note addressing the situation when a defendant was simultaneously sentenced for an illegal reentry offense and another federal felony offense. It clarifies that, in such a case, the illegal reentry offense counts towards subsection (b)(1), while the other felony offense counts towards subsection (b)(3). Because the amendment is intended to make a distinction between illegal reentry offenses and other types of offenses, the Commission concluded that it was appropriate to ensure that such convictions are separately accounted for under the applicable specific offense characteristics, even if they might otherwise constitute a ‘‘single sentence’’ under § 4A1.2(a)(2). For example, if the single sentence rule applied, a defendant who was sentenced simultaneously for an illegal reentry and a federal felony drug-trafficking offense might receive an enhancement of only 4 levels under subsection (b)(1), even though, if the two sentences had been imposed separately, the drug offense would result in an additional enhancement of between 4 and 10 levels under subsection (b)(3). Definition of ‘‘Crime of Violence’’ The amendment continues to use the term ‘‘crime of violence,’’ although now solely in reference to the 2-level enhancement for three or more misdemeanor convictions at subsections (b)(2)(E) and (b)(3)(E). The amendment conforms the definition of ‘‘crime of violence’’ in Application Note 2 to that adopted for use in the career offender guideline effective August 1, 2016. See Notice of Submission to Congress of Amendment to the Sentencing Guidelines Effective August 1, 2016, 81 FR 4741 (Jan. 27, 2016). Uniformity and ease of application weigh in favor of using a consistent definition for the same term throughout the Guidelines Manual. 5. Amendment: Section 5B1.3 is amended in the heading by striking ‘‘Conditions—’’ and inserting ‘‘Conditions’’; in subsections (a)(1) through (a)(8) by striking the initial letter of the first word in each subsection and inserting the appropriate capital letter for the word, and by striking the semicolon at the end of each subsection and inserting a period; VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 in subsection (a)(6), as so amended, by inserting before the period at the end the following: ‘‘. If there is a courtestablished payment schedule for making restitution or paying the assessment (see 18 U.S.C. 3572(d)), the defendant shall adhere to the schedule’’; by striking subsection (a)(9) as follows: ‘‘(9) (A) in a state in which the requirements of the Sex Offender Registration and Notification Act (see 42 U.S.C. 16911 and 16913) do not apply, a defendant convicted of a sexual offense as described in 18 U.S.C. 4042(c)(4) (Pub. L. 105–119, § 115(a)(8), Nov. 26, 1997) shall report the address where the defendant will reside and any subsequent change of residence to the probation officer responsible for supervision, and shall register as a sex offender in any State where the person resides, is employed, carries on a vocation, or is a student; or (B) in a state in which the requirements of Sex Offender Registration and Notification Act apply, a sex offender shall (i) register, and keep such registration current, where the offender resides, where the offender is an employee, and where the offender is a student, and for the initial registration, a sex offender also shall register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence; (ii) provide information required by 42 U.S.C. 16914; and (iii) keep such registration current for the full registration period as set forth in 42 U.S.C. 16915;’’, and inserting the following: ‘‘(9) If the defendant is required to register under the Sex Offender Registration and Notification Act, the defendant shall comply with the requirements of that Act (see 18 U.S.C. 3563(a)).’’; and in subsection (a)(10) by striking ‘‘the defendant’’ and inserting ‘‘The defendant’’; in subsection (b) by striking ‘‘The court’’ and inserting the following: ‘‘Discretionary Conditions The court’’; in subsection (c) by striking ‘‘(Policy Statement) The’’ and inserting the following: ‘‘ ‘Standard’ Conditions (Policy Statement) The’’; and by striking paragraphs (1) through (14) as follows: ‘‘(1) the defendant shall not leave the judicial district or other specified geographic area without the permission of the court or probation officer; (2) the defendant shall report to the probation officer as directed by the PO 00000 Frm 00014 Fmt 4701 Sfmt 4703 court or probation officer and shall submit a truthful and complete written report within the first five days of each month; (3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; (4) the defendant shall support the defendant’s dependents and meet other family responsibilities (including, but not limited to, complying with the terms of any court order or administrative process pursuant to the law of a state, the District of Columbia, or any other possession or territory of the United States requiring payments by the defendant for the support and maintenance of any child or of a child and the parent with whom the child is living); (5) the defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons; (6) the defendant shall notify the probation officer at least ten days prior to any change of residence or employment; (7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance, or any paraphernalia related to any controlled substance, except as prescribed by a physician; (8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered, or other places specified by the court; (9) the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer; (10) the defendant shall permit a probation officer to visit the defendant at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer; (11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; (12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; (13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm E:\FR\FM\05MYN2.SGM 05MYN2 mstockstill on DSK3G9T082PROD with NOTICES2 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices the defendant’s compliance with such notification requirement; (14) the defendant shall pay the special assessment imposed or adhere to a court-ordered installment schedule for the payment of the special assessment.’’, and inserting the following: ‘‘(1) The defendant shall 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 instructs 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 shall report to the probation officer as instructed. (3) The defendant shall 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 shall answer truthfully the questions asked by the probation officer. (5) The defendant shall 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 shall notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change. (6) The defendant shall allow the probation officer to visit the defendant at any time at his or her home or elsewhere, and the defendant shall 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 shall 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 shall 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 shall notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change. (8) The defendant shall 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 shall not knowingly communicate or interact with that person without first getting the permission of the probation officer. (9) If the defendant is arrested or questioned by a law enforcement officer, the defendant shall notify the probation officer within 72 hours. (10) The defendant shall 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 shall 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 notify the person about the risk and the defendant shall comply with that instruction. The probation officer may contact the person and confirm that the defendant has notified the person about the risk. (13) The defendant shall 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) as follows: ‘‘(1) Possession of Weapons If the instant conviction is for a felony, or if the defendant was previously convicted of a felony or used a firearm or other dangerous weapon in the course of the instant offense—a condition prohibiting the defendant from possessing a firearm or other dangerous weapon.’’, and inserting the following: ‘‘(1) Support of Dependents (A) If the defendant has one or more dependents—a condition specifying that the defendant shall support his or her dependents. PO 00000 Frm 00015 Fmt 4701 Sfmt 4703 27275 (B) 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—a condition specifying that the defendant shall 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 before the period at the end the following: ‘‘; and (B) a condition specifying that the defendant shall not use or possess alcohol’’. The Commentary to § 5B1.3 captioned ‘‘Application Note’’ is amended by striking Note 1 as follows: ‘‘1. Application of Subsection (a)(9)(A) and (B).—Some jurisdictions continue to register sex offenders pursuant to the sex offender registry in place prior to July 27, 2006, the date of enactment of the Adam Walsh Act, which contained the Sex Offender Registration and Notification Act. In such a jurisdiction, subsection (a)(9)(A) will apply. In a jurisdiction that has implemented the requirements of the Sex Offender Registration and Notification Act, subsection (a)(9)(B) will apply. (See 42 U.S.C. 16911 and 16913.)’’, and inserting the following: ‘‘1. Application of Subsection (c)(4).— Although the condition in subsection (c)(4) requires the defendant to ‘answer truthfully’ the questions asked by the probation officer, a defendant’s legitimate invocation of the Fifth Amendment privilege against selfincrimination in response to a probation officer’s question shall not be considered a violation of this condition.’’. Section 5D1.3 is amended is amended in the heading by striking ‘‘Conditions—’’ and inserting ‘‘Conditions’’; in subsections (a)(1) through (a)(6) by striking the initial letter of the first word in each subsection and inserting the appropriate capital letter for the word, and by striking the semicolon at the end of each subsection and inserting a period; in subsection (a)(6), as so amended, by inserting before the period at the end the following: ‘‘. If there is a courtestablished payment schedule for making restitution or paying the assessment (see 18 U.S.C. 3572(d)), the defendant shall adhere to the schedule’’; by striking subsection (a)(7) as follows: ‘‘(7) (A) in a state in which the requirements of the Sex Offender Registration and Notification Act (see 42 E:\FR\FM\05MYN2.SGM 05MYN2 mstockstill on DSK3G9T082PROD with NOTICES2 27276 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices U.S.C. 16911 and 16913) do not apply, a defendant convicted of a sexual offense as described in 18 U.S.C. 4042(c)(4) (Pub. L. 105–119, § 115(a)(8), Nov. 26, 1997) shall report the address where the defendant will reside and any subsequent change of residence to the probation officer responsible for supervision, and shall register as a sex offender in any State where the person resides, is employed, carries on a vocation, or is a student; or (B) in a state in which the requirements of Sex Offender Registration and Notification Act apply, a sex offender shall (i) register, and keep such registration current, where the offender resides, where the offender is an employee, and where the offender is a student, and for the initial registration, a sex offender also shall register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence; (ii) provide information required by 42 U.S.C. 16914; and (iii) keep such registration current for the full registration period as set forth in 42 U.S.C. 16915;’’, and inserting the following: ‘‘(7) If the defendant is required to register under the Sex Offender Registration and Notification Act, the defendant shall comply with the requirements of that Act (see 18 U.S.C. 3583(d)).’’; and in subsection (a)(8) by striking ‘‘the defendant’’ and inserting ‘‘The defendant’’; in subsection (b) by striking ‘‘The court’’ and inserting the following: ‘‘Discretionary Conditions The court’’; in subsection (c) by striking ‘‘(Policy Statement) The’’ and inserting the following: ‘‘ ‘Standard’ Conditions (Policy Statement) The’’; and by striking paragraphs (1) through (15) as follows: ‘‘(1) the defendant shall not leave the judicial district or other specified geographic area without the permission of the court or probation officer; (2) the defendant shall report to the probation officer as directed by the court or probation officer and shall submit a truthful and complete written report within the first five days of each month; (3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; (4) the defendant shall support the defendant’s dependents and meet other family responsibilities (including, but VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 not limited to, complying with the terms of any court order or administrative process pursuant to the law of a state, the District of Columbia, or any other possession or territory of the United States requiring payments by the defendant for the support and maintenance of any child or of a child and the parent with whom the child is living); (5) the defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons; (6) the defendant shall notify the probation officer at least ten days prior to any change of residence or employment; (7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance, or any paraphernalia related to any controlled substance, except as prescribed by a physician; (8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered, or other places specified by the court; (9) the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer; (10) the defendant shall permit a probation officer to visit the defendant at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer; (11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; (12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; (13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement; (14) the defendant shall pay the special assessment imposed or adhere to a court-ordered installment schedule for the payment of the special assessment; (15) 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 PO 00000 Frm 00016 Fmt 4701 Sfmt 4703 amount of restitution, fines, or special assessments.’’, and inserting the following: ‘‘(1) The defendant shall 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 instructs 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 shall report to the probation officer as instructed. (3) The defendant shall 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 shall answer truthfully the questions asked by the probation officer. (5) The defendant shall 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 shall notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change. (6) The defendant shall allow the probation officer to visit the defendant at any time at his or her home or elsewhere, and the defendant shall 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 shall 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 shall 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 shall notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change. E:\FR\FM\05MYN2.SGM 05MYN2 mstockstill on DSK3G9T082PROD with NOTICES2 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices (8) The defendant shall 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 shall not knowingly communicate or interact with that person without first getting the permission of the probation officer. (9) If the defendant is arrested or questioned by a law enforcement officer, the defendant shall notify the probation officer within 72 hours. (10) The defendant shall 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 shall 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 notify the person about the risk and the defendant shall comply with that instruction. The probation officer may contact the person and confirm that the defendant has notified the person about the risk. (13) The defendant shall 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) as follows: ‘‘(1) Possession of Weapons If the instant conviction is for a felony, or if the defendant was previously convicted of a felony or used a firearm or other dangerous weapon in the course of the instant offense—a condition prohibiting the defendant from possessing a firearm or other dangerous weapon.’’, and inserting the following: ‘‘(1) Support of Dependents (A) If the defendant has one or more dependents—a condition specifying that the defendant shall support his or her dependents. (B) 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—a condition specifying that the defendant VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 shall make the payments and comply with the other terms of the order.’’; in paragraph (4) by striking ‘‘Program Participation’’ in the heading; by inserting ‘‘(A)’’ before ‘‘a condition requiring’’; and by inserting before the period at the end the following: ‘‘; and (B) a condition specifying that the defendant shall not use or possess alcohol’’; and by inserting at the end the following new paragraph (8): ‘‘(8) Unpaid Restitution, Fines, or Special Assessments If the defendant has any unpaid amount of restitution, fines, or special assessments, 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.’’. The Commentary to § 5D1.3 captioned ‘‘Application Note’’ is amended by striking Note 1 as follows: ‘‘1. Application of Subsection (a)(7)(A) and (B).—Some jurisdictions continue to register sex offenders pursuant to the sex offender registry in place prior to July 27, 2006, the date of enactment of the Adam Walsh Act, which contained the Sex Offender Registration and Notification Act. In such a jurisdiction, subsection (a)(7)(A) will apply. In a jurisdiction that has implemented the requirements of the Sex Offender Registration and Notification Act, subsection (a)(7)(B) will apply. (See 42 U.S.C. 16911 and 16913.)’’, and inserting the following: ‘‘1. Application of Subsection (c)(4).— Although the condition in subsection (c)(4) requires the defendant to ‘answer truthfully’ the questions asked by the probation officer, a defendant’s legitimate invocation of the Fifth Amendment privilege against selfincrimination in response to a probation officer’s question shall not be considered a violation of this condition.’’. Reason for Amendment: This amendment is a result of the Commission’s multi-year review of sentencing practices relating to federal probation and supervised release. The amendment makes several changes to the guidelines and policy statements related to conditions of probation, § 5B1.3 (Conditions of Probation), and supervised release, § 5D1.3 (Conditions of Supervised Release). When imposing a sentence of probation or a sentence of imprisonment that includes a period of supervised release, the court is required to impose certain conditions of supervision listed by statute. 18 U.S.C. 3563(a) and PO 00000 Frm 00017 Fmt 4701 Sfmt 4703 27277 3583(d). Congress has also empowered courts to impose additional conditions of probation and supervised release that are reasonably related to statutory sentencing factors contained in 18 U.S.C. 3553(a), so long as those conditions ‘‘involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in 3553(a)(2).’’ 18 U.S.C. 3563(b); see also 18 U.S.C. 3583(d). Additional conditions of supervised release must also be consistent with any pertinent policy statements issued by the Commission. See 18 U.S.C. 3583(d)(3). 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), and has implemented this directive in §§ 5B1.3 and 5D1.3. The provisions follow a parallel structure, first setting forth those conditions of supervision that are required by statute in their respective subsections (a) and (b), and then providing guidance on discretionary conditions, which are categorized as ‘‘standard’’ conditions, ‘‘special’’ conditions, and ‘‘additional’’ special conditions, in subsections (c), (d), and (e), respectively. In a number of cases, defendants have raised objections (with varied degrees of success) to the conditions of supervised release and probation imposed upon them at the time of sentencing. See, e.g., United States v. Munoz, 812 F.3d 809 (10th Cir. 2016); United States v. Kappes, 782 F.3d 828, 848 (7th Cir. 2015); United States v. Siegel, 753 F.3d 705 (7th Cir. 2014); United States v. Bahr, 730 F.3d 963 (9th Cir. 2013); United States v. Maloney, 513 F.3d 350, 357–59 (3d Cir. 2008); United States v. Saechao, 418 F.3d 1073, 1081 (9th Cir. 2005). Challenges have been made on the basis that certain conditions are vaguely worded, pose constitutional concerns, or have been categorized as ‘‘standard’’ conditions in a manner that has led to their improper imposition upon particular offenders. The amendment responds to many of the concerns raised in these challenges by revising, clarifying, and rearranging the conditions contained in §§ 5B1.3 and 5D1.3 in order to make them easier for defendants to understand and probation officers to enforce. Many of the challenged conditions are those laid out in the Judgment in a Criminal Case Form, AO245B, which are nearly identical to the conditions in §§ 5B1.3 and 5D1.3. The amendment was supported by the Criminal Law Committee (CLC) of the Judicial Conference of the United States. E:\FR\FM\05MYN2.SGM 05MYN2 27278 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices The CLC has long taken an active and ongoing role in developing, monitoring and recommending revisions to the condition of supervision, which represent the core supervision practices required by the federal supervision model. The changes in the amendment are consistent with proposed changes to the national judgment form recently endorsed by the CLC and Administrative Office of the U.S. Courts, after an exhaustive review of those conditions aided by probation officers from throughout the country. As part of this broader revision, the conditions in §§ 5B1.3 and 5D1.3 have been renumbered. Where the specific conditions discussed below are identified by a guidelines provision reference, that numeration is in reference to their pre-amendment order. Court-Established Payment Schedules First, the amendment amends §§ 5B1.3(a)(6) and 5D1.3(a)(6) to set forth as a ‘‘mandatory’’ condition that if there is a court-established payment schedule for making restitution or paying a special assessment, the defendant shall adhere to the schedule. Previously, those conditions were classified as ‘‘standard.’’ As a conforming change, similar language at §§ 5B1.3(c)(14) and 5D1.3(c)(14) is deleted. This change is made to more closely adhere to the requirements of 18 U.S.C. 3572(d). mstockstill on DSK3G9T082PROD with NOTICES2 Sex Offender Registration and Notification Act Second, the amendment amends §§ 5B1.3(a)(9) and 5D1.3(a)(7) to clarify that, if the defendant is required to register under the Sex Offender Registration and Notification Act (SORNA), the defendant shall comply with the requirements of the SORNA. Language in the guideline provisions and the accompanying commentary indicating that the Act applies in some states and not in others is correspondingly deleted. After receiving testimony from the Department of Justice suggesting the current condition could be misread, the Commission determined that the condition’s language should be simplified and updated to unambiguously reflect that federal sex offender registration requirements apply in all states. Reporting to the Probation Officer Third, the amendment divides the initial and regular reporting requirements, §§ 5B1.3(a)(2) and 5D1.3(a)(2), into two more definite provisions. The amendment also amends the conditions to require that the defendant report to the probation VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 office in the jurisdiction where he or she is authorized to reside, within 72 hours of release unless otherwise directed, and that the defendant must thereafter report to the probation officer as instructed by the court or the probation officer. Leaving the Jurisdiction Fourth, the amendment revises §§ 5B1.3(c)(1) and 5D1.3(c)(1), which prohibit defendants from leaving the judicial district without permission, for clarity and to insert a mental state (mens rea) requirement that a defendant must not leave the district ‘‘knowingly.’’ Testimony received by the Commission has observed that a rule prohibiting a defendant from leaving the district without permission of the court or probation officer may be unfairly applied to a defendant who unknowingly moves between districts. The Commission concluded that this change appropriately responds to that concern. Answering Truthfully; Following Instructions Fifth, the amendment divides §§ 5B1.3(c)(3) and 5D1.3(c)(3) into separate conditions which individually require the defendant to ‘‘answer truthfully’’ the questions of the probation officer and to follow the instructions of the probation officer ‘‘related to the conditions of supervision.’’ The amendment also adds commentary to clarify that a defendant’s legitimate invocation of the Fifth Amendment privilege against selfincrimination in response to a probation officer’s question shall not be considered a violation of the ‘‘answer truthfully’’ condition. The Commission determined that this approach adequately addresses Fifth Amendment concerns raised by some courts, see, e.g., United States v. Kappes, 782 F.3d 828, 848 (7th Cir. 2015) and United States v. Saechao, 418 F.3d 1073, 1081 (9th Cir. 2005), while preserving the probation officer’s ability to adequately supervise the defendant. Residence and Employment Sixth, the amendment clarifies the standard conditions relating to a defendant’s residence, §§ 5B1.3(c)(6) and 5D1.3(c)(6), and the requirement that the defendant work full time, §§ 5B1.3(c)(5) and 5D1.3(c)(5). The revised conditions spell out in plain language that the defendant must live at a place ‘‘approved by the probation officer,’’ and that the defendant must work full time (at least 30 hours per week) at a lawful type of employment — or seek to do so — unless excused by PO 00000 Frm 00018 Fmt 4701 Sfmt 4703 the probation officer. The defendant must also notify the probation officer of changes in residence or employment at least 10 days in advance of the change or, if this is not possible, within 72 hours of becoming aware of a change. The Commission determined that these changes are appropriate to ensure that defendants are made aware of what will be required of them while under supervision. These requirements and associated benchmarks (e.g., 30 hours per week) are supported by testimony from the CLC as appropriate to meet supervision needs. Visits by Probation Officer Seventh, the amendment amends the conditions requiring the defendant to permit the probation officer to visit the defendant at any time, at home or elsewhere, and to permit the probation officer to confiscate items prohibited by the defendant’s terms of release, §§ 5B1.3(c)(10) and 5D1.3(c)(10). The revision provides plain language notice to defendants and guidance to probation officers. The Seventh Circuit has criticized this condition as intrusive and not necessarily connected to the offense of conviction, see United States v. Kappes, 782 F.3d 828, 850–51 (7th Cir. 2015) and United States v. Thompson, 777 F.3d 368, 379–80 (7th Cir. 2015), but the Commission has determined that, in some circumstance, adequate supervision of defendants may require probation officers to have the flexibility to visit defendants at off-hours, at their workplaces, and without advance notice to the supervisee. For example, some supervisees work overnight shifts and, in order to verify that they are in compliance with the condition of supervision requiring employment, a probation officer might have to visit them at their workplace very late in the evening. Association with Criminals Eighth, the amendment revises and clarifies the conditions mandating that the defendant not associate with persons engaged in criminal activity or persons convicted of a felony unless granted permission to do so by the probation officer, §§ 5B1.3(c)(9) and 5D1.3(c)(9). As amended, the condition requires that the defendant must not ‘‘communicate or interact with’’ any person whom the defendant ‘‘knows’’ to be engaged in ‘‘criminal activity’’ and prohibits the defendant from communicating or interacting with those whom the defendant ‘‘knows’’ to have been ‘‘convicted of a felony’’ without advance permission of the probation officer. E:\FR\FM\05MYN2.SGM 05MYN2 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices These revisions address concerns expressed by the Seventh Circuit that the condition is vague and lacks a mens rea requirement. See United States v. Kappes, 782 F.3d 828, 848–49 (7th Cir. 2015); see also United States v. King, 608 F.3d 1122, 1128 (9th Cir. 2010) (upholding the condition by interpreting it to have an implicit mens rea requirement). The revision adds an express mental state requirement and replaces the term ‘‘associate’’ with more definite language. Arrested or Questioned by a Law Enforcement Officer Ninth, the amendment makes clerical changes to the ‘‘standard’’ conditions requiring that the defendant notify the probation officer after being arrested or questioned by a law enforcement officer. See §§ 5B1.3(11) and 5D1.3(11). Firearms and Dangerous Weapons Tenth, the amendment reclassifies the ‘‘special’’ conditions which require that the defendant not possess a firearm or other dangerous weapon, §§ 5B1.3(d)(1) and 5D1.3(d)(1), as ‘‘standard’’ conditions and clarifies those conditions. As amended, the defendant must not ‘‘own, possess, or have access to’’ a firearm, ammunition, destructive device, or dangerous weapon. After reviewing the testimony from the CLC and others, the Commission determined that reclassifying this condition as a ‘‘standard’’ condition will promote public safety and reduce safety risks to probation officers. The amendment also defines ‘‘dangerous weapon’’ as ‘‘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.’’ mstockstill on DSK3G9T082PROD with NOTICES2 Acting as an Informant Eleventh, the amendment rewords the ‘‘standard’’ condition at §§ 5B1.3(c)(12) and 5D1.3(c)(12) requiring that the defendant not enter into an agreement to act as an informant without permission of the court. The condition is revised to improve clarity. Duty to Notify of Risks Posed by the Defendant Twelfth, the amendment revises the conditions requiring the defendant, at the direction of the probation officer, to notify others of risks the defendant may pose based on his or her personal history or characteristics, §§ 5B1.3(c)(13) and 5D1.3(c)(13). As amended, the condition provides that, if the probation officer determines that the defendant poses a risk to another person, the probation officer may VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 require the defendant to tell the person about the risk and permits the probation officer to confirm that the defendant has done so. The Commission determined that this revision is appropriate to address criticism by the Seventh Circuit regarding potential ambiguity in how the condition is currently phrased. See United States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015). Support of Dependents Thirteenth, the amendment clarifies and moves the dependent support requirement from the list of ‘‘standard’’ conditions, §§ 5B1.3(c)(4) and 5D1.3(c)(4), to the list of ‘‘special’’ conditions in subsection (d). As amended, the conditions require that, if the defendant has dependents, he or she must support those dependents; and if the defendant is ordered to make child support payments, he or she must make the payments and comply with the other terms of the order. These changes address concerns expressed by the Seventh Circuit that the current condition—which requires a defendant to ‘‘support his or her dependents and meet other family responsibilities’’—is vague and does apply to defendants who have no dependents. See United States v. Kappes, 782 F.3d 828, 849 (7th Cir. 2015) and United States v. Thompson, 777 F.3d 368, 379–80 (7th Cir. 2015). The amendment uses plainer language to provide better notice to the defendant about what is required. The Commission determined that this condition need not apply to all defendants but only to those with dependents. Alcohol; Controlled Substances; Frequenting Places Where Controlled Substances are Sold Fourteenth, the standard conditions requiring that the defendant refrain from excessive use of alcohol, not possess or distribute controlled substances or paraphernalia, and not frequent places where controlled substances are illegally sold, §§ 5B1.3(c)(7)–(8) and 5D1.3(c)(7)–(8), have been deleted. The Commission determined that these conditions are either best dealt with as special conditions or are redundant with other conditions. Specifically, to account for the supervision needs of defendants with alcohol abuse problems, a new special condition that the defendant ‘‘must not use or possess alcohol’’ has been added. The requirement that the defendant abstain from the illegal use of controlled substances is covered by the ‘‘mandatory’’ conditions prohibiting commission of additional crimes and requiring substance abuse testing. PO 00000 Frm 00019 Fmt 4701 Sfmt 4703 27279 Finally, the prohibition on frequenting places where controlled substances are illegally sold is encompassed by the ‘‘standard’’ condition that defendants not associate with those they know to be criminals or who are engaged in criminal activity. Material Change in Economic Circumstances (§ 5D1.3 Only) Finally, with respect to supervised release only, the ‘‘standard’’ condition requiring that the defendant 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, § 5D1.3(c)(15), is reclassified as a ‘‘special’’ condition in subsection (d). Testimony from the CLC and others indicated that defendants on supervised release often have no outstanding restitution, fines, or special assessments remaining at the time of their release, rendering the condition superfluous in those cases. No change has been made to the parallel ‘‘mandatory’’ condition of probation at § 5B1.3(a)(7). 6. Amendment: Section 2K2.1 is amended in subsection (a)(8) by inserting ‘‘, or 18 U.S.C. 1715’’ before the period at the end. The Commentary to § 2K2.1 captioned ‘‘Statutory Provisions’’ is amended by inserting after ‘‘(k)-(o),’’ the following: ‘‘1715,’’. The Commentary to § 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)’’. The Commentary to § 2T1.6 captioned ‘‘Background’’ is amended by striking ‘‘The offense is a felony that is infrequently prosecuted.’’. Chapter Two, Part T, Subpart 2, is amended in the Introductory Commentary by striking ‘‘Because these offenses are no longer a major enforcement priority, no effort’’ and inserting ‘‘No effort’’. Section 2T2.1 is amended by striking the Commentary captioned ‘‘Background’’ as follows: ‘‘Background: The most frequently prosecuted conduct violating this section is operating an illegal still. 26 U.S.C. 5601(a)(1).’’. Section 2T2.2 is amended by striking the Commentary captioned ‘‘Background’’ as follows: ‘‘Background: Prosecutions of this type are infrequent.’’. Appendix A (Statutory Index) is amended by inserting after the line E:\FR\FM\05MYN2.SGM 05MYN2 27280 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices referenced to 18 U.S.C. 1712 the following: ‘‘18 U.S.C. 1715 2K2.1’’; by inserting after the line referenced to 18 U.S.C. 2280 the following: ‘‘18 U.S.C. 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. 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’’. mstockstill on DSK3G9T082PROD with NOTICES2 Reason for Amendment: This amendment responds to recently enacted legislation and miscellaneous guideline application issues. USA FREEDOM Act 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), set forth changes to statutes related to maritime navigation and nuclear terrorism and provided new and expanded criminal offenses to implement the United States’ obligations under certain provisions of four international conventions. The USA FREEDOM Act also specified that the new crimes constitute ‘‘federal crimes of terrorism.’’ See 18 U.S.C. 2332b(g)(5). The amendment responds to the USA FREEDOM Act by referencing the new offenses in Appendix A (Statutory Index) to various Chapter Two guidelines covering murder and assault, weapons, national security, and environmental offenses. First, the USA FREEDOM Act enacted 18 U.S.C. 2280a (Violence against maritime navigation and maritime transport involving weapons of mass destruction). Subsections 2280a(a)(1)(A) and (a)(1)(B)(i) prohibit certain acts 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. Subsections 2280a(a)(1)(B)(ii)– (vi) prohibit certain other acts against maritime navigation. Subsection 2280a(a)(1)(C) prohibits transporting VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 another person on board a ship knowing the person has committed a violation under 18 U.S.C. 2280 (Violence against maritime navigation) or certain subsections of section 2280a, or an offense under a listed counterterrorism treaty. Subsection 2280a(a)(1)(D) prohibits injuring or killing a person in connection with the commission of certain offenses under section 2280a. Subsection 2280a(a)(1)(E) prohibits attempts and conspiracies under the statute. The penalty for a violation of these subsections is a term of imprisonment for not more than 20 years. If the death of a person results, the penalty is imprisonment for any term of years or for life. Subsection 2280a(a)(2) prohibits threats to commit offenses under subsection 2280a(a)(1)(A), with a penalty of imprisonment of up to five years. The new offenses at section 2280a are referenced in Appendix A (Statutory Index) to the following Chapter Two guidelines: §§ 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; Property Damage by Use of Explosives); 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). Second, the USA FREEDOM Act enacted 18 U.S.C. 2281a (Additional offenses against maritime fixed platforms). Subsection 2281a(a)(1) prohibits certain 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 PO 00000 Frm 00020 Fmt 4701 Sfmt 4703 to compel a government or international organization to do or abstain from doing any act. The penalty for a violation of subsection 2281a(a)(1) is a term of imprisonment for not more than 20 years. If the death of a person results, the penalty is imprisonment for any term of years or for life. Subsection 2281a(a)(2) prohibits threats to commit offenses under subsection 2281a(a)(1), and the penalty for a violation of subsection 2281a(a)(2) is imprisonment of up to five years. The new offenses at 18 U.S.C. 2281a are referenced to §§ 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. Third, the USA FREEDOM Act enacted 18 U.S.C. 2332i (Acts of nuclear terrorism). Section 2332i prohibits the possession or use of certain radioactive materials or devices with the intent to cause death or serious bodily injury or to cause substantial damage to property or the environment, as well as threats to commit any such acts. The penalty for a violation of section 2332i is imprisonment for any term of years or for life. The new offenses at 18 U.S.C. 2332i are referenced to §§ 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. The amendment also makes clerical changes to Application Note 1 to § 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. The three new statutes provide a wide range of elements—meaning that the statutes can be violated in a large number of alternative ways. The Commission performed a section-bysection analysis of the elements of the new statutes and identified the Chapter Two offense guidelines that appear most analogous. As a result, the Commission determined that referencing the new statutes in Appendix A (Statutory Index) to a range of guidelines will allow the courts to select the most appropriate guideline in light of the nature of the conviction. For example, a reference to § 2K1.4 (Arson; Property Damage by Use of Explosives) is provided to account for when the defendant is convicted under section 2280a(a)(1)(A)(i) for the use of an explosive device on a ship in a manner that causes or is likely to cause death or serious injury. See USSG App. A, Introduction (Where the statute is E:\FR\FM\05MYN2.SGM 05MYN2 Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Notices referenced to more than one guideline section, the court is to ‘‘use the guideline most appropriate for the offense conduct charged in the count of which the defendant was convicted.’’). The Commission also found it persuasive that other similar statutes are referenced in Appendix A to a similar list of Chapter Two guidelines. Referencing these three new statutes in a manner consistent with the treatment of existing related statutes is reasonable to achieve parity, and will lead to consistent application of the guidelines. mstockstill on DSK3G9T082PROD with NOTICES2 Firearms As Nonmailable Items under 18 U.S.C. 1715 Section 1715 of title 18 of the United States Code (Firearms as nonmailable; regulations) 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 the penalty for a violation of this statute is a term of imprisonment up to two years. Section 1715 is not referenced in Appendix A (Statutory Index). The amendment amends Appendix A to reference offenses under section 1715 to § 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition). The amendment also amends § 2K2.1 to provide a base offense level of 6 under § 2K2.1(a)(8) for convictions under section 1715. The Commission received public comment suggesting that the lack of specific guidance for section 1715 offenses caused unwarranted sentencing VerDate Sep<11>2014 18:45 May 04, 2016 Jkt 238001 disparity. Commission data provided further support for the need for an amendment to address this issue. Although the data indicated that courts routinely applied § 2K2.1 to violations of section 1715, it also evidenced that courts were reaching different results in the base offense level applied. The Commission was persuaded by the data and public comment that an Appendix A reference and corresponding changes to § 2K2.1 would reduce those unwarranted sentencing disparities. The Commission determined that § 2K2.1 is the most analogous guideline for these types of firearms offenses. By providing an Appendix A reference for section 1715, the amendment ensures that § 2K2.1 will be consistently applied to these offenses. Moreover, the Commission decided that the accompanying changes to § 2K2.1 will eliminate the disparate application of the base offense levels in that guideline. The Commission selected the base offense level of 6 for these offenses because similar statutory provisions with similar penalties are referenced to § 2K2.1(a)(8). The Commission concluded that referencing section 1715 will promote consistency in application and avoid unwarranted sentencing disparities. Background Commentary to § 2T1.6 (Failing to Collect or Truthfully Account for and Pay Over Tax) The Background Commentary in § 2T1.6 (Failing to Collect or Truthfully Account for and Pay Over Tax) states that ‘‘[t]he offense is a felony that is infrequently prosecuted.’’ Section 2T1.6 PO 00000 Frm 00021 Fmt 4701 Sfmt 9990 27281 applies to violations of 26 U.S.C. 7202 (Willful failure to collect or pay over tax) which requires employers to withhold from an employee’s paychecks money representing the employee’s personal income and Social Security taxes. 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. The amendment makes a clerical change to the Background Commentary to § 2T1.6 to delete the statement that section 7202 offenses are infrequently prosecuted. The amendment makes additional clerical changes in the Introductory Commentary to Chapter Two, Part T, Subpart 2 (Alcohol and Tobacco Taxes), and the Background Commentary to §§ 2T2.1 (Non-Payment of Taxes) and 2T2.2 (Regulatory Offenses) which has similar language. The amendment reflects public comment received by the Commission that indicated while the statement in the Background Commentary to § 2T1.6 may have been accurate when the commentary was originally written in 1987, the number of prosecutions under section 7202 have since increased. Additionally, the Commission decided that removing language characterizing the frequency of prosecutions for the tax offenses sentenced under §§ 2T1.6, 2T2.1, and 2T2.2 will remove the perception that the Commission has taken a position regarding the relative frequency of prosecution of such offenses. [FR Doc. 2016–10431 Filed 5–4–16; 8:45 am] BILLING CODE 2210–40–P E:\FR\FM\05MYN2.SGM 05MYN2

Agencies

[Federal Register Volume 81, Number 87 (Thursday, May 5, 2016)]
[Notices]
[Pages 27261-27281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10431]



[[Page 27261]]

Vol. 81

Thursday,

No. 87

May 5, 2016

Part III





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / 
Notices

[[Page 27262]]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of submission to Congress of amendments to the 
sentencing guidelines effective November 1, 2016.

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

DATES: The Commission has specified an effective date of November 1, 
2016, for the amendments set forth in this notice.

FOR FURTHER INFORMATION CONTACT: Christine Leonard, Director, Office of 
Legislative and Public Affairs, (202) 502-4500, pubaffairs@ussc.gov. 
The amendments set forth in this notice also may be accessed through 
the Commission's Web site at www.ussc.gov.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). 
The Commission also periodically reviews and revises previously 
promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally 
submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) 
not later than the first day of May each year. Absent action of 
Congress to the contrary, submitted amendments become effective by 
operation of law on the date specified by the Commission (generally 
November 1 of the year in which the amendments are submitted to 
Congress).
    Notice of proposed amendments was published in the Federal Register 
on January 15, 2016 (see 81 FR 2295). The Commission held public 
hearings on the proposed amendments in Washington, DC, on February 17 
and March 16, 2016. On April 28, 2016, the Commission submitted these 
amendments to Congress and specified an effective date of November 1, 
2016.

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

Patti B. Saris,
Chair.

    1. Amendment: Section 1B1.13 is amended in the heading by striking 
``as a Result of Motion by Director of Bureau of Prisons'' and 
inserting ``Under 18 U.S.C. 3582(c)(1)(A)''.
    The Commentary to Sec.  1B1.13 captioned ``Application Notes'' is 
amended in Note 1 by striking the heading as follows: ``Application of 
Subdivision (1)(A).--''; by striking Note 1(A) as follows:
    (A) Extraordinary and Compelling Reasons.--Provided the defendant 
meets the requirements of subdivision (2), extraordinary and compelling 
reasons exist under any of the following circumstances:
    (i) The defendant is suffering from a terminal illness.
    (ii) The defendant is suffering from a permanent physical or 
medical condition, or is experiencing deteriorating physical or mental 
health because of the aging process, that substantially diminishes the 
ability of the defendant to provide self-care within the environment of 
a correctional facility and for which conventional treatment promises 
no substantial improvement.
    (iii) The death or incapacitation of the defendant's only family 
member capable of caring for the defendant's minor child or minor 
children.
    (iv) 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 in 
subdivisions (i), (ii), and (iii).'';

by redesignating Notes 1(B) and 2 as Notes 3 and 5, respectively, and 
inserting before Note 3 (as so redesignated) the following new Notes 1 
and 2:

    ``1. Extraordinary and Compelling Reasons.--Provided the defendant 
meets the requirements of subdivision (2), extraordinary and compelling 
reasons exist under any of the circumstances set forth below:
    (A) Medical Condition of the Defendant.--
    (i) The defendant is suffering from a terminal illness (i.e., a 
serious and advanced illness with an end of life trajectory). A 
specific prognosis of life expectancy (i.e., a probability of death 
within a specific time period) is not required. Examples include 
metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), 
end-stage organ disease, and advanced dementia.
    (ii) The defendant is--
    (I) suffering from a serious physical or medical condition,
    (II) suffering from a serious functional or cognitive impairment, 
or
    (III) experiencing deteriorating physical or mental health because 
of the aging process,

that substantially diminishes the ability of the defendant to provide 
self-care within the environment of a correctional facility and from 
which he or she is not expected to recover.

    (B) Age of the Defendant.--The defendant (i) is at least 65 years 
old; (ii) is experiencing a serious deterioration in physical or mental 
health because of the aging process; and (iii) has served at least 10 
years or 75 percent of his or her term of imprisonment, whichever is 
less.
    (C) Family Circumstances.--
    (i) The death or incapacitation of the caregiver of the defendant's 
minor child or minor children.
    (ii) 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.
    (D) Other Reasons.--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 in subdivisions (A) through (C).
    2. Foreseeability of Extraordinary and Compelling Reasons.--For 
purposes of this policy statement, an extraordinary and compelling 
reason need not have been unforeseen at the time of sentencing in order 
to warrant a reduction in the term of imprisonment. Therefore, the fact 
that an extraordinary and compelling reason reasonably could have been 
known or anticipated by the sentencing court does not preclude 
consideration for a reduction under this policy statement.'';

in Note 3 (as so redesignated) by striking ``subdivision (1)(A)'' and 
inserting ``this policy statement'';

and by inserting after Note 3 (as so redesignated) the following new 
Note 4:

    ``4. Motion by the Director of the Bureau of Prisons.--A reduction 
under this policy statement may be granted only upon motion by the 
Director of the Bureau of Prisons pursuant to 18 U.S.C. 3582(c)(1)(A). 
The Commission encourages the Director of the Bureau of Prisons to file 
such a motion if the defendant meets any of the circumstances set forth 
in Application Note 1. The court is in a unique position to determine 
whether the circumstances warrant a reduction (and, if so, the

[[Page 27263]]

amount of reduction), after considering the factors set forth 18 U.S.C. 
3553(a) and the criteria set forth in this policy statement, such as 
the defendant's medical condition, the defendant's family 
circumstances, and whether the defendant is a danger to the safety of 
any other person or to the community.
    This policy statement shall not be construed to confer upon the 
defendant any right not otherwise recognized in law.''.
    The Commentary to Sec.  1B1.13 captioned ``Background'' is amended 
by striking ``This policy statement implements 28 U.S.C. 994(t).'' and 
inserting the following:
    ``The Commission is required by 28 U.S.C. 994(a)(2) to develop 
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). In doing so, the Commission 
is authorized by 28 U.S.C. 994(t) 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.' 
This policy statement implements 28 U.S.C. 994(a)(2) and (t).''.
    Reason for Amendment: This amendment is a result of the 
Commission's review of the policy statement pertaining to 
``compassionate release'' at Sec.  1B1.13 (Reduction in Term of 
Imprisonment as a Result of Motion by Director of Bureau of Prisons). 
The amendment broadens certain eligibility criteria and encourages the 
Director of the Bureau of Prisons to file a motion for compassionate 
release when ``extraordinary and compelling reasons'' exist.
    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 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)(A); see also 28 
U.S.C. 992(a)(2) (stating that the Commission shall promulgate general 
policy statements regarding ``the sentence modification provisions set 
forth in section[ ] . . . 3582(c) of title 18''); and 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''). In turn, the Commission promulgated 
the policy statement at Sec.  1B1.13, which defines ``extraordinary and 
compelling reasons'' for compassionate release.
    The Bureau of Prisons has developed its own criteria for the 
implementation of section 3582(c)(1)(A). See U.S. Department of 
Justice, Federal Bureau of Prisons, Compassionate Release/Reduction in 
Sentence: Procedures for Implementation of 18 U.S.C. 3582(c)(1)(A) and 
4205(g) (Program Statement 5050.49, CN-1). Under its 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 of an inmate's minor child, or the incapacitation of the 
defendant's spouse or registered partner when the inmate would be the 
only available caregiver; see 5050.49(4),(5),(6)).
    The Commission has conducted an in-depth review of this topic, 
including consideration of Bureau of Prisons data documenting lengthy 
review of compassionate release applications and low approval rates, as 
well as two reports issued by the Department of Justice Office of the 
Inspector General that are critical of the Bureau of Prisons' 
implementation of its compassionate release program. See U.S. 
Department of Justice, Office of the Inspector General, The Federal 
Bureau of Prisons' Compassionate Release Program, I-2013-006 (April 
2013); 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). In February 2016, the Commission held a public 
hearing on compassionate release and received testimony from witnesses 
and experts about the need to broaden the criteria for eligibility, to 
add guidance to the medical criteria, and to remove other 
administrative hurdles that limit the availability of compassionate 
release for otherwise eligible defendants.
    The amendment revises Sec.  1B1.13 in several ways. First, the 
amendment broadens the Commission's guidance on what should be 
considered ``extraordinary and compelling reasons'' for compassionate 
release. It provides four categories of criteria: ``Medical Condition 
of the Defendant,'' ``Age of the Defendant,'' ``Family Circumstances,'' 
and ``Other Reasons.''
    The ``Medical Condition of the Defendant'' category has two prongs: 
One for defendants with terminal illness, and one that applies to 
defendants with a debilitating condition. For the first subcategory, 
the amendment clarifies that terminal illness means ``a serious and 
advanced illness with an end of life trajectory,'' and it explicitly 
states that a ``specific prognosis of life expectancy (i.e. a 
probability of death within a specific time period) is not required.'' 
These changes respond to testimony and public comment on the challenges 
associated with diagnosing terminal illness. In particular, while an 
end-of-life trajectory may be determined by medical professionals with 
some certainty, it is extremely difficult to determine death within a 
specific time period. For that reason, the Commission concluded that 
requiring a specified prognosis (such as the 18-month prognosis in the 
Bureau of Prisons' program statement) is unnecessarily restrictive both 
in terms of the administrative review and the scope of eligibility for 
compassionate release applications. For added clarity, the amendment 
also provides a non-exhaustive list of illnesses that may qualify as a 
terminal illness.
    For the non-terminal medical category, the amendment provides three 
broad criteria to include defendants who are (i) suffering from a 
serious condition, (ii) suffering from a serious functional or 
cognitive impairment, or (iii) experiencing deteriorating health 
because of the aging process, for whom the medical condition 
substantially diminishes the defendant's ability to provide self-care 
within a correctional facility and from which he or she is not expected 
to recover. The primary change to this category is the addition of 
prong (II) regarding a serious functional or cognitive impairment. This 
additional prong is intended to include a wide variety of permanent, 
serious impairments and disabilities, whether functional or cognitive, 
that make life in prison overly difficult for certain inmates.
    The amendment also adds an age-based category (``Age of the 
Defendant'') for eligibility in Sec.  1B1.13. This new category would 
apply if the defendant (i) is at least 65 years old, (ii) is 
experiencing a serious deterioration in health because of the aging 
process, and (iii) has served at least 10 years or 75 percent of his or 
her term of imprisonment (whichever is less). The age-based category 
resembles criteria in the Bureau of Prisons' program

[[Page 27264]]

statement, but adds a limitation that the defendant must be 
experiencing seriously deteriorating health because of the aging 
process. The amendment also clarifies that the time-served aspect 
should be applied with regard to ``whichever is less,'' an important 
distinction from the Bureau of Prisons' criteria, which has limited 
application to only those elderly offenders serving significant terms 
of imprisonment. The Commission determined that 65 years should be the 
age for eligibility under the age-based category after considering the 
Commission's recidivism research, which finds that inmates aged 65 
years and older exhibit a very low rate of recidivism (13.3%) as 
compared to other age groups. The Commission expects that the 
broadening of the medical conditions categories, cited above, will lead 
to increased eligibility for inmates who suffer from certain conditions 
or impairments, and who experience a diminished ability to provide 
self-care in prison, regardless of their age.
    The amendment also includes a ``Family Circumstances'' category for 
eligibility that applies to (i) the death or incapacitation of the 
caregiver of the defendant's minor child, or (ii) the incapacitation of 
the defendant's spouse or registered partner when the defendant would 
be the only available caregiver. The amendment deletes the requirement 
under prong (i) regarding the death or incapacitation of the 
``defendant's only family member'' caregiver, given the possibility 
that the existing caregiver may not be of family relation. The 
Commission also added prong (ii), which makes this category of criteria 
consistent with similar considerations in the Bureau of Prisons' 
program statement.
    Second, the amendment updates the Commentary in Sec.  1B1.13 to 
provide that an extraordinary and compelling reason need not have been 
unforeseen at the time of sentencing in order to warrant a reduction. 
The Commission heard from stakeholders and medical experts that the 
corresponding limitation in the Bureau of Prisons' program statement 
ignores the often precipitous decline in health or circumstances that 
can occur after imprisonment. The Commission determined that potential 
foreseeability at the time of sentencing should not automatically 
preclude the defendant's eligibility for early release under Sec.  
1B1.13.
    Finally, the amendment adds a new application note that encourages 
the Director of the Bureau of Prisons to file 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. The 
Commission heard testimony and received public comment concerning the 
inefficiencies that exist within the Bureau of Prisons' administrative 
review of compassionate release applications, which can delay or deny 
release, even in cases where the applicant appears to meet the criteria 
for eligibility. While only the Director of the Bureau of Prisons has 
the statutory authority to file a motion for compassionate release, the 
Commission finds that ``the court is in a unique position to assess 
whether the circumstances exist, and whether a reduction is warranted 
(and, if so, the amount of reduction), including the factors set forth 
18 U.S.C. 3553(a) and the criteria set forth in this policy statement, 
such as the defendant's medical condition, the defendant's family 
circumstances, and whether the defendant is a danger to the safety of 
any other person or to the community.'' The Commission's policy 
statement is not legally binding on the Bureau of Prisons and does not 
confer any rights on the defendant, but the new commentary is intended 
to encourage the Director of the Bureau of Prisons to exercise his or 
her authority to file a motion under section 3582(c)(1)(A) when the 
criteria in this policy statement are met.
    The amendment also adds to the Background that the Commission's 
general policy-making authority at 28 U.S.C. 994(a)(2) serves as an 
additional basis for this and other guidance set forth in Sec.  1B1.13, 
and the amendment changes the title of the policy statement. These 
changes are clerical.
    2. Amendment: Section 2E3.1 is amended in subsection (a) by 
striking subsection (a)(2) as follows:
    ``(2) 10, if the offense involved an animal fighting venture; or'';

by redesignating subsections (a)(1) and (a)(3) as subsections (a)(2) 
and (a)(4), respectively; in subsection (a)(2) (as so redesignated) by 
striking ``operation; or'' and inserting ``operation;''; by inserting 
before subsection (a)(2) (as so redesignated) the following new 
subsection (a)(1):

    ``(1) 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 (a)(3):

    ``(3) 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 1 by striking ``: `Animal'' and inserting ``, 
`animal'';

and 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 the 
following:

    ``The base offense levels provided for animal fighting ventures in 
subsection (a)(1) and (a)(3) reflect that an animal fighting venture 
involves one or more violent fights between animals and that a defeated 
animal often is severely injured in the fight, dies as a result of the 
fight, or is killed afterward. Nonetheless, there may be cases in which 
the offense level determined under this guideline substantially 
understates the seriousness of the offense. In such a case, an upward 
departure may be warranted. For example, an upward departure may be 
warranted if (A) the offense involved extraordinary cruelty to an 
animal beyond the violence inherent in such a venture (such as by 
killing an animal in a way that prolongs the suffering of the 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)''.
    Reason for Amendment: This amendment responds to two legislative 
changes to the Animal Welfare Act (the ``Act'') (codified at 7 U.S.C. 
2156) made by Congress in 2008 and 2014. First, in 2008, Congress 
amended the Act to increase the maximum term of imprisonment for 
offenses involving an animal fighting venture from three years to five 
years. See Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-
234, Sec.  14207(b), 122 Stat. 1461, 1462 (May 22, 2008). Second, in 
2014, Congress again amended the Act to create two new offenses--the 
offense of attending an animal fight and the offense of causing an 
individual under the age of 16 to attend an animal fight, with 
respective statutory maximum terms of imprisonment of one and three 
years. See Agricultural Act of 2014, Pub. L. 113-79, Sec.  12308, 128 
Stat. 990, 990 (Feb. 7, 2014).
    The amendment makes several changes to Sec.  2E3.1 (Gambling 
Offenses, Animal Fighting Offenses) to account for these legislative 
actions. The amendment is informed by extensive public comment, recent 
case law, and

[[Page 27265]]

analysis of Commission data regarding the current penalties for animal 
fighting offenses.

Higher Penalties for Animal Fighting Venture Offenses

    First, the amendment increases the base offense level for offenses 
involving an animal fighting venture from 10 to 16. This change 
reflects the increase in the statutory maximum penalty from three to 
five years for offenses prohibited under 7 U.S.C. 2156(a)-(e). See 18 
U.S.C. 49 (containing the criminal penalties for violations of section 
2156). The Commission also determined that the increased base offense 
level better accounts for the cruelty and violence that is 
characteristic of these crimes, as reflected in the extensive public 
comment and testimony noting that a defeated animal is often severely 
injured or killed during or after a fight and that the animals used in 
these crimes are commonly exposed to inhumane living conditions or 
other forms of neglect.
    In making this change, the Commission was also informed by data 
evidencing a high percentage of above range sentences in these cases. 
During fiscal years 2011 through 2014, almost one-third (31.0%) of the 
seventy-four offenders who received the base offense level of 10 under 
Sec.  2E3.1 received an above range sentence, compared to a national 
above range rate of 2.0 percent for all offenders. For those animal 
fighting offenders sentenced above the range, the average extent of the 
upward departure was more than twice the length of imprisonment at the 
high end of the guideline range, resulting in an average sentence of 18 
months (and a median sentence of 16 months). Comparably, the amended 
base offense level will result in a guideline range of 12 to 18 months 
for the typical animal fighting venture offender who is in Criminal 
History Category I and receives a three-level reduction for acceptance 
of responsibility under Sec.  3E1.1 (Acceptance of Responsibility). 
Additionally, for offenders in the higher criminal history categories, 
the guideline range at base offense level 16 allows for applicable 
Chapter Three increases while remaining within the statutory maximum.

New Offenses Relating to Attending an Animal Fighting Venture

    The amendment also establishes a base offense level of 10 in Sec.  
2E3.1 if the defendant was convicted under section 2156(a)(2)(B) for 
causing an individual under 16 to attend an animal fighting venture. 
The Commission believes this level of punishment best reflects 
Congress's intent in creating this new crime. A base offense level of 
10 for this new offense will result in a guideline range (before 
acceptance of responsibility) of 6 to 12 months of imprisonment for 
offenders in Criminal History Category I, while allowing for a 
guideline range approaching the three-year statutory maximum for 
offenders in higher criminal history categories. The Commission also 
noted that assigning a base offense level of 10 is consistent with the 
policy decision made by the Commission when it assigned a base offense 
level of 10 to an animal fighting crime in 2008, which, at that time, 
also had a three-year statutory maximum penalty. See USSG App. C, 
amend. 721 (effective November 1, 2008).
    Lastly, the amendment establishes a base offense level of 6 for the 
new class A misdemeanor of attending an animal fighting venture 
prohibited by section 2156(a)(2)(A) by including only the felony 
provisions of 7 U.S.C. 2156 in the Appendix A reference to Sec.  2E3.1. 
Consistent with other Class A misdemeanor offenses, this base offense 
level is established through application of Sec.  2X5.2 (Class A 
Misdemeanors (Not Covered by Another Specific Offense Guideline)).

Departure Provision

    The amendment also revises and expands the existing upward 
departure language in two ways.
    First, the amendment clarifies the circumstances in which an upward 
departure for exceptional cruelty may be warranted. As reflected in the 
revised departure provision, the base offense levels provided for 
animal fighting ventures in subsections (a)(1) and (a)(3) reflect the 
fact that an animal fighting venture involves one or more violent 
fights between animals and that a defeated animal often is severely 
injured in the fight, dies as a result of the fight, or is killed 
afterward. The Commission heard testimony that in a typical dog fight, 
dogs puncture and tear at each other, until one animal is too injured 
to continue, and during a cock fight, roosters strike each other with 
their beaks and with sharp blades that have been strapped to their 
legs, suffering punctured lungs, broken bones, and pierced eyes. 
Nonetheless, as informed by public comment and testimony, the 
Commission's study indicates that some animal fighting offenses involve 
extraordinary cruelty to an animal beyond that which is common to such 
crimes, such as killing an animal in a way that prolongs the suffering 
of the animal. The Commission determined that such extraordinary 
cruelty may fall outside the heartland of conduct encompassed by the 
base offense level for animal fighting ventures and, therefore, that an 
upward departure may be warranted in those cases.
    Similarly, the amendment expands the existing departure provision 
to include offenses involving animal fighting on an exceptional scale 
(such as offenses involving an unusually large number of animals) as 
another example of conduct that may warrant an upward departure. As 
with the example of extraordinary cruelty, the Commission determined 
that the base offense level under the revised guideline may understate 
the seriousness of the offense in those cases.
    3. Amendment: Section 2G2.1 is amended in subsection (b)(3) by 
striking ``If the offense involved distribution'' and inserting ``If 
the defendant knowingly engaged in distribution'';

and in subsection (b)(4) by inserting ``(A)'' before ``sadistic or 
masochistic'', and by inserting after ``violence'' the following: ``; 
or (B) an infant or toddler''.

    The Commentary to Sec.  2G2.1 captioned ``Statutory Provisions'' is 
amended by inserting at the end the following: ``For additional 
statutory provision(s), see Appendix A (Statutory Index).''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended by redesignating Notes 3, 4, 5, and 6 as Notes 5, 6, 7, and 8, 
respectively, and by inserting after Note 2 the following new Notes 3 
and 4:
    ``3. Application of Subsection (b)(3).--For purposes of subsection 
(b)(3), the defendant `knowingly engaged in distribution' if the 
defendant (A) knowingly committed the distribution, (B) aided, abetted, 
counseled, commanded, induced, procured, or willfully caused the 
distribution, or (C) conspired to distribute.
    4. Interaction of Subsection (b)(4)(B) and Vulnerable Victim (Sec.  
3A1.1(b)).--If subsection (b)(4)(B) applies, do not 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 engaged in distribution,'';

and in subsection (b)(4) by inserting ``(A)'' before ``sadistic or 
masochistic'',

[[Page 27266]]

and by inserting after ``violence'' the following: ``; or (B) sexual 
abuse or exploitation of an infant or toddler.''

    The Commentary to Sec.  2G2.2 captioned ``Statutory Provisions'' is 
amended by inserting at the end the following: ``For additional 
statutory provision(s), see Appendix A (Statutory Index).''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 1 by striking the fourth undesignated paragraph as 
follows:
    `` `Distribution for the receipt, or expectation of receipt, of a 
thing of value, but not for pecuniary gain' means any transaction, 
including bartering or other in-kind transaction, that is conducted for 
a thing of value, but not for profit. `Thing of value' means anything 
of valuable consideration. For example, in a case involving the 
bartering of child pornographic material, the `thing of value' is the 
child pornographic material received in exchange for other child 
pornographic material bartered in consideration for the material 
received.'',

and inserting the following:

    `` ` 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.'';

by redesignating Notes 2 through 7 as Notes 3, 5, 6, 7, 8, and 9, 
respectively;

by inserting after Note 1 the following new Note 2:

    ``2. Application of Subsection (b)(3)(F).--For purposes of 
subsection (b)(3)(F), the defendant `knowingly engaged in distribution' 
if the defendant (A) knowingly committed the distribution, (B) aided, 
abetted, counseled, commanded, induced, procured, or willfully caused 
the distribution, or (C) conspired to distribute.'';

in Note 3 (as so redesignated) by inserting ``(A)'' after ``(b)(4)'' 
both places such term appears;

and by inserting after Note 3 (as so redesignated) the following new 
Note 4:

    ``4. Interaction of Subsection (b)(4)(B) and Vulnerable Victim 
(Sec.  3A1.1(b)).--If subsection (b)(4)(B) applies, do not apply Sec.  
3A1.1(b).''.
    Section 2G3.1 is amended in subsection (b)(1) 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 engaged in distribution,''.

    The Commentary to Sec.  2G3.1 captioned ``Application Notes'' is 
amended in Note 1 by striking the fourth undesignated paragraph as 
follows:
    `` `Distribution for the receipt, or expectation of receipt, of a 
thing of value, but not for pecuniary gain' means any transaction, 
including bartering or other in-kind transaction, that is conducted for 
a thing of value, but not for profit. `Thing of value' means anything 
of valuable consideration.'',

and inserting the following:

    `` `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 obscene material, 
preferential access to obscene material, or access to a child.'';

by redesignating Notes 2 and 3 as Notes 3 and 4, respectively;

and by inserting after Note 1 the following new Note 2:

    ``2. Application of Subsection (b)(1)(F).--For purposes of 
subsection (b)(1)(F), the defendant `knowingly engaged in distribution' 
if the defendant (A) knowingly committed the distribution, (B) aided, 
abetted, counseled, commanded, induced, procured, or willfully caused 
the distribution, or (C) conspired to distribute.''.
    Reason for Amendment: This amendment addresses circuit conflicts 
and application issues related to the child pornography guidelines. One 
issue generally 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 frequently 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).

Offenses Involving Infants and Toddlers

    First, the amendment addresses differences among the circuits when 
cases involve infant and toddler victims. The production guideline at 
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) 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)-(B). The non-production guideline at Sec.  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) 
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).
    A circuit conflict has arisen as to whether a defendant who 
receives an age enhancement under Sec. Sec.  2G2.1 and 2G2.2 may also 
receive a vulnerable victim adjustment at Sec.  3A1.1 (Hate Crime 
Motivation or Vulnerable Victim) when the victim is extremely young and 
vulnerable, such as an infant or toddler. Section 3A1.1(b)(1) provides 
for a 2-level increase if the defendant knew or should have known that 
a victim was a ``vulnerable victim,'' which is defined in the 
accompanying commentary as 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 also provides that the vulnerable victim adjustment does 
not apply if the factor that makes the victim a ``vulnerable victim,'' 
such as age, is incorporated in the offense guidelines, ``unless the 
victim was unusually vulnerable for reasons unrelated to age.'' Id.
    The Fifth and Ninth Circuits have held that it is permissible to 
apply both enhancements in cases involving infant or toddler victims 
because their level of vulnerability is not fully incorporated in the 
offense guidelines. See United States v. Jenkins, 712 F.3d 209, 214 
(5th

[[Page 27267]]

Cir. 2013); United States v. Wright, 373 F.3d 935, 943 (9th Cir. 2004). 
These circuits have reasoned that although the victim's small physical 
size and extreme vulnerability tend to correlate with age, such 
characteristics are not the same as compared to most children under 12 
years. Jenkins, 712 F.3d at 214; Wright, 373 F.3d at 942-43. The Fourth 
Circuit, by contrast, has held that the age enhancement and vulnerable 
victim adjustment may not be simultaneously applied because the child 
pornography guidelines fully address age-related factors. See United 
States v. Dowell, 771 F.3d 162, 175 (4th Cir. 2014). The Fourth Circuit 
reasoned that cognitive development or psychological susceptibility 
necessarily is related to age. Id.
    The amendment resolves the circuit conflict by explicitly 
accounting for infant and toddler victims in the child pornography 
guidelines. Specifically, the amendment revises Sec. Sec.  2G2.1 and 
2G2.2 by adding a new basis for application of the ``sadistic or 
masochistic'' enhancement when the offense involves infants or 
toddlers. The amendment amends Sec.  2G2.1(b)(4) to provide for a 4-
level increase ``if the offense involved material that portrays (A) 
sadistic or masochistic conduct or other depictions of violence; or (B) 
an infant or toddler,'' and amends Sec.  2G2.2(b)(4) to provide a 4-
level increase ``if the offense involved material that portrays (A) 
sadistic or masochistic conduct or other depictions of violence; or (B) 
sexual abuse or exploitation of an infant or toddler.'' The 
accompanying application note to each guideline provides that if 
subsection (b)(4)(B) applies, do not apply the vulnerable victim 
adjustment in Chapter Three.
    The amendment reflects the Commission's view, based on testimony 
and public comment, that child pornography offenses involving infants 
and toddlers warrant an enhancement. Because application of the 
vulnerable victim adjustment necessarily relies on a fact-specific 
inquiry, the Commission determined that expanding the ``sadistic or 
masochistic'' enhancement (Sec. Sec.  2G2.1(b)(4) and 2G2.2(b)(4)) to 
include infant and toddler victims would promote more consistent 
application of the child pornography guidelines and reduce unwarranted 
sentencing disparities. In making its determination, the Commission was 
informed by case law indicating that most circuits have found 
depictions of the sexual abuse or exploitation of infants or toddlers 
involving penetration or pain portray sadistic conduct. See, e.g., 
United States v. Hoey, 508 F.3d 687, 691 (1st Cir. 2007) (``We agree 
with the many circuits which have found that images depicting the 
sexual penetration of young and prepubescent children by adult males 
represent conduct sufficiently likely to involve pain such as to 
support a finding that it is inherently `sadistic' or similarly 
`violent' . . . .''); United States v. Delmarle, 99 F.3d 80, 83 (2d 
Cir. 1996) (``[S]ubjection of a young child to a sexual act that would 
have to be painful is excessively cruel and hence is sadistic . . . 
.''); United States v. Maurer, 639 F.3d 72, 79 (3d Cir. 2011) (``[W]e 
join other circuits in holding that the application of Sec.  
2G2.2(b)(4) is appropriate where an image depicts sexual activity 
involving a prepubescent minor that would have caused pain to the 
minor.''); United States v. Burgess, 684 F.3d 445, 454 (4th Cir. 2012) 
(image depicting vaginal penetration of five-year-old girl by adult 
male, which would ``necessarily cause physical pain to the victim,'' 
qualified for sentencing enhancement under Sec.  2G2.2(b)); United 
States v. Lyckman, 235 F.3d 234, 238-39 (5th Cir. 2000) (agreeing with 
the Second, Seventh, and Eleventh Circuits that application of 
subsection (b)(4) is warranted when the image depicts ``the physical 
penetration of a young child by an adult male.''); United States v. 
Groenendal, 557 F.3d 419, 424-26 (6th Cir. 2009) (penetration of a 
prepubescent child by an adult male constitutes inherently sadistic 
conduct that justifies application of Sec.  2G2.2(b)(4)); United States 
v. Meyers, 355 F.3d 1040, 1043 (7th Cir. 2004) (finding vaginal 
intercourse between a prepubescent girl and an adult male sadistic); 
United States v. Belflower, 390 F.3d 560, 562 (8th Cir. 2004) (images 
involving the anal penetration of minor boy or girl adult male are per 
se sadistic or violent within the meaning of subsection (b)(4)); United 
States v. Henderson, 649 F.3d 995 (9th Cir. 2010) (vaginal penetration 
of prepubescent minor qualifies for (b)(4) enhancement); United States 
v. Kimler, 335 F.3d 1132, 1143 (10th Cir. 2003) (finding no expert 
testimony necessary for a sentence enhancement [(b)(4)] when the images 
depicted penetration of prepubescent children by adults); United States 
v. Bender, 290 F.3d 1279, 1286 (11th Cir. 2002) (photograph was 
sadistic within the meaning of subsection (b)(4) when it depicts the 
``subjugation of a young child to a sexual act that would have to be 
painful''). The Commission intends the new enhancement to apply to any 
sexual images of an infant or toddler.

The Two and Five Level Distribution Enhancements

    Next, the amendment addresses differences among the circuits 
involving application of the tiered distribution enhancements in Sec.  
2G2.2. Section 2G2.2(b)(3) provides for an increase for distribution of 
child pornographic material ranging from 2 to 7 levels depending on 
certain factors. See Sec.  2G2.2(b)(3)(A)-(F). The circuits have 
reached different conclusions regarding the mental state required for 
application of the 2-level enhancement for ``generic'' distribution as 
compared to the 5-level enhancement for distribution not for pecuniary 
gain. The circuit conflicts involving these two enhancements have 
arisen frequently, although not exclusively, in cases involving the use 
of peer-to-peer file-sharing programs or networks.

Peer-to-Peer File-Sharing Programs

    The Commission's 2012 report to Congress discussed the use of file-
sharing programs, such as Peer-to-Peer (``P2P''), in the context of 
cases involving distribution of child pornography. See 2012 Report at 
33-35, 48-62. Specifically, P2P is a software application that enables 
computer users to share files easily over the Internet. These 
applications do not require a central server or use of email. Rather, 
the file-sharing application allows two or more users to essentially 
have access each other's computers and to directly swap files from 
their computers. Some file-sharing programs require a user to designate 
files to be shared during the installation process, meaning that at the 
time of installation the user can ``opt in'' to share files, and the 
software will automatically scan the user's computer and then compile a 
list of files to share. Other programs employ a default file-sharing 
setting, meaning the user can ``opt out'' of automatically sharing 
files by changing the default setting to limit which, if any, files are 
available for sharing. Once the user has downloaded and set up the 
file-sharing software, the user can begin searching for files shared on 
the connected network using search keywords in the same way one 
regularly uses a search engine such as Google. Users may choose to 
``opt in'' for a variety of reasons, including, for example, to obtain 
faster download speeds, to have access to a greater range of material, 
or because the particular site mandates sharing.

The 2-Level Distribution Enhancement

    The circuits have reached different conclusions regarding whether 
application of the 2-level distribution

[[Page 27268]]

enhancement at Sec.  2G2.2(b)(3)(F) requires a mental state (mens rea), 
particularly in cases involving use of a file-sharing program or 
network. The Fifth, Tenth, and Eleventh Circuits have held that the 2-
level distribution enhancement applies if the defendant used a file-
sharing program, regardless of whether the defendant did so 
purposefully, knowingly, or negligently. See, e.g., United States v. 
Baker, 742 F.3d 618, 621 (5th Cir. 2014); United States v. Ray, 704 
F.3d 1307, 1312 (10th Cir. 2013); United States v. Creel, 783 F.3d 
1357, 1360 (11th Cir. 2015). The Second, Fourth, and Seventh Circuits 
have held that the 2-level distribution enhancement requires a showing 
that the defendant knew of the file-sharing properties of the program. 
See, e.g., United States v. Baldwin, 743 F.3d 357, 361 (2d 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). The Eighth Circuit 
has held that knowledge is required, but knowledge may be inferred from 
the fact that a file-sharing program was used, absent ``concrete 
evidence'' of ignorance. See United States v. Dodd, 598 F.3d 449, 452 
(8th Cir. 2010). The Sixth Circuit has held 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); see also United States v. Abbring, 788 F.3d 565, 
567 (6th Cir. 2015) (``the whole point of a file-sharing program is to 
share, sharing creates a transfer, and transferring equals 
distribution'').
    The amendment generally adopts the approach of the Second, Fourth, 
and Seventh Circuits. It amends Sec.  2G2.2(b)(3)(F) to provide that 
the 2-level distribution enhancement applies if ``the defendant 
knowingly engaged in distribution.'' Based on testimony, public 
comment, and data analysis, the Commission determined that the 2-level 
distribution enhancement is appropriate only in cases in which the 
defendant knowingly engaged in distribution. An accompanying 
application note clarifies that: ``For purposes of subsection 
(b)(3)(F), the defendant `knowingly engaged in distribution' if the 
defendant (A) knowingly committed the distribution, (B) aided, abetted, 
counseled, commanded, induced, procured, or willfully caused the 
distribution, or (C) conspired to distribute.'' Similar changes are 
made to the 2-level distribution enhancement at Sec.  2G2.1(b)(3) and 
the obscenity guideline, Sec.  2G3.1 (Importing, Mailing, or 
Transporting Obscene Matter; Transferring Obscene Matter to a Minor; 
Misleading Domain Names), which contains a similarly tiered 
distribution enhancement.

The 5-Level Distribution Enhancement

    Finally, the amendment responds to differences among the circuits 
in applying the 5-level enhancement for distribution not for pecuniary 
gain at Sec.  2G2.2(b)(3)(B). While courts generally agree that mere 
use of a file-sharing program or network, without more, is insufficient 
for application of the 5-level distribution enhancement, the circuits 
have taken distinct approaches with respect to the circumstances under 
which the 5-level rather than the 2-level enhancement is appropriate in 
such circumstances. The Fourth Circuit has held that the 5-level 
distribution enhancement applies when 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). In contrast, 
while holding that the 5-level enhancement applies when the defendant 
knew he was distributing child pornographic material in exchange for a 
thing of value, 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).
    The amendment revises Sec.  2G2.2(b)(3)(B) and commentary to 
clarify that the 5-level enhancement applies ``if the defendant 
distributed in exchange for any valuable consideration.'' The amendment 
further explains in the accompanying application note that this 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.'' The amendment makes parallel changes to the obscenity 
guideline at Sec.  2G3.1, which has a similar tiered distribution 
enhancement.
    As with the 2-level distribution enhancement, the amendment 
resolves differences among the circuits in applying the 5-level 
distribution enhancement by clarifying the mental state required for 
distribution of child pornographic material for non-pecuniary gain, 
particularly when the case involves a file-sharing program or network. 
The Commission determined that the amendment is an appropriate way to 
account for the higher level of culpability when the defendant had the 
specific purpose of distributing child pornographic material to another 
person in exchange for valuable consideration.
    4. Amendment: Section 2L1.1 is amended in subsection (b)(4) by 
striking the following:
    ``If the defendant smuggled, transported, or harbored a minor who 
was unaccompanied by the minor's parent or grandparent, increase by 2 
levels.'',

and inserting the following:

    ``If the offense involved the smuggling, transporting, or harboring 
of a minor who was unaccompanied by the minor's parent, adult relative, 
or legal guardian, increase by 4 levels.''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended in Note 1 by striking the third undesignated paragraph as 
follows:
    `` `Aggravated felony' is defined in the Commentary to Sec.  2L1.2 
(Unlawfully Entering or Remaining in the United States).'',

and inserting the following:

`` `Aggravated felony' has the meaning given that term in section 
101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(43)), without regard to the date of conviction for the 
aggravated felony.'';

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 renumbering Notes 2 through 6 according to the following table:

------------------------------------------------------------------------
                                                                After
                      Before Amendment                        Amendment
------------------------------------------------------------------------
4..........................................................            2
5..........................................................            3
6..........................................................            5
2..........................................................            6
3..........................................................            7
------------------------------------------------------------------------

and by rearranging those Notes, as so renumbered, to place them in 
proper order;

and by inserting after Note 3 (as so renumbered) the following new Note 
4:


[[Page 27269]]


``4. 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 2242 or any similar offense under state 
law.''.
    Section 2L1.2 is amended by striking subsections (a) and (b) as 
follows:
    `` (a) Base Offense Level: 8
    (b) Specific Offense Characteristic
    (1) Apply the Greatest:
    If the defendant previously was deported, or unlawfully remained in 
the United States, after--
    (A) a conviction for a felony that is (i) a drug trafficking 
offense for which the sentence imposed exceeded 13 months; (ii) a crime 
of violence; (iii) a firearms offense; (iv) a child pornography 
offense; (v) a national security or terrorism offense; (vi) a human 
trafficking offense; or (vii) an alien smuggling offense, increase by 
16 levels if the conviction receives criminal history points under 
Chapter Four or by 12 levels if the conviction does not receive 
criminal history points;
    (B) a conviction for a felony drug trafficking offense for which 
the sentence imposed was 13 months or less, increase by 12 levels if 
the conviction receives criminal history points under Chapter Four or 
by 8 levels if the conviction does not receive criminal history points;
    (C) a conviction for an aggravated felony, increase by 8 levels;
    (D) a conviction for any other felony, increase by 4 levels; or
    (E) three or more convictions for misdemeanors that are crimes of 
violence or drug trafficking offenses, increase by 4 levels.'',

and inserting the following:

    `` (a) Base Offense Level: 8
    (b) Specific Offense Characteristics
    (1) (Apply the Greater) If the defendant committed the instant 
offense after sustaining--
    (A) a conviction for a felony that is an illegal reentry offense, 
increase by 4 levels; or
    (B) two or more convictions for misdemeanors under 8 U.S.C. 
1325(a), increase by 2 levels.
    (2) (Apply the Greatest) If, before the defendant was ordered 
deported or ordered removed from the United States for the first time, 
the defendant sustained--
    (A) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was five years or more, 
increase by 10 levels;
    (B) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was two years or more, 
increase by 8 levels;
    (C) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed exceeded one year and 
one month, increase by 6 levels;
    (D) a conviction for any other felony offense (other than an 
illegal reentry offense), increase by 4 levels; or
    (E) three or more convictions for misdemeanors that are crimes of 
violence or drug trafficking offenses, increase by 2 levels.
    (3) (Apply the Greatest) If, at any time after the defendant was 
ordered deported or ordered removed from the United States for the 
first time, 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 five years or more, 
increase by 10 levels;
    (B) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was two years or more, 
increase by 8 levels;
    (C) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed exceeded one year and 
one month, increase by 6 levels;
    (D) a conviction for any other felony offense (other than an 
illegal reentry offense), increase by 4 levels; or
    (E) three or more convictions for misdemeanors that are crimes of 
violence or drug trafficking offenses, increase by 2 levels.''.
    The Commentary to Sec.  2L1.2 captioned ``Statutory Provisions'' is 
amended by striking ``8 U.S.C. 1325(a) (second or subsequent offense 
only), 8 U.S.C. 1326'' and inserting ``8 U.S.C. 1253, 1325(a) (second 
or subsequent offense only), 1326''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended by striking Notes 1 through 7 as follows:
    ``1. Application of Subsection (b)(1).--
    (A) In General.--For purposes of subsection (b)(1):
    (i) A defendant shall be considered to be deported after a 
conviction if the defendant has been removed or has departed the United 
States while an order of exclusion, deportation, or removal was 
outstanding.
    (ii) A defendant shall be considered to be deported after a 
conviction if the deportation was subsequent to the conviction, 
regardless of whether the deportation was in response to the 
conviction.
    (iii) A defendant shall be considered to have unlawfully remained 
in the United States if the defendant remained in the United States 
following a removal order issued after a conviction, regardless of 
whether the removal order was in response to the conviction.
    (iv) Subsection (b)(1) does not apply to a conviction for an 
offense committed before the defendant was eighteen years of age unless 
such conviction is classified as an adult conviction under the laws of 
the jurisdiction in which the defendant was convicted.
    (B) Definitions.--For purposes of subsection (b)(1):
    (i) `Alien smuggling offense' has the meaning given that term in 
section 101(a)(43)(N) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(43)(N)).
    (ii) `Child pornography offense' means (I) an offense described in 
18 U.S.C. 2251, 2251A, 2252, 2252A, or 2260; or (II) an offense under 
state or local law consisting of conduct that would have been an 
offense under any such section if the offense had occurred within the 
special maritime and territorial jurisdiction of the United States.
    (iii) `Crime of violence' means any of the following offenses under 
federal, state, or local law: murder, manslaughter, kidnapping, 
aggravated assault, forcible sex offenses (including where consent to 
the conduct is not given or is not legally valid, such as where consent 
to the conduct is involuntary, incompetent, or coerced), statutory 
rape, sexual abuse of a minor, robbery, arson, extortion, extortionate 
extension of credit, burglary of a dwelling, or any other offense under 
federal, state, or local law that has as an element the use, attempted 
use, or threatened use of physical force against the person of another.
    (iv) `Drug trafficking offense' means an offense under federal, 
state, or local law that prohibits the manufacture, import, export, 
distribution, or dispensing of, or offer to sell a controlled substance 
(or a counterfeit substance) or the possession of a controlled 
substance (or a counterfeit substance) with intent to manufacture, 
import, export, distribute, or dispense.
    (v) `Firearms offense' means any of the following:
    (I) An offense under federal, state, or local law that prohibits 
the importation, distribution, transportation, or trafficking of a 
firearm described in 18 U.S.C. 921, or of an explosive material as 
defined in 18 U.S.C. 841(c).
    (II) An offense under federal, state, or local law that prohibits 
the possession of a firearm described in 26 U.S.C. 5845(a), or of an 
explosive material as defined in 18 U.S.C. 841(c).
    (III) A violation of 18 U.S.C. 844(h).

[[Page 27270]]

    (IV) A violation of 18 U.S.C. 924(c).
    (V) A violation of 18 U.S.C. 929(a).
    (VI) An offense under state or local law consisting of conduct that 
would have been an offense under subdivision (III), (IV), or (V) if the 
offense had occurred within the special maritime and territorial 
jurisdiction of the United States.
    (vi) `Human trafficking offense' means (I) any offense described in 
18 U.S.C. 1581, 1582, 1583, 1584, 1585, 1588, 1589, 1590, or 1591; or 
(II) an offense under state or local law consisting of conduct that 
would have been an offense under any such section if the offense had 
occurred within the special maritime and territorial jurisdiction of 
the United States.
    (vii) `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.
    (viii) `Terrorism offense' means any offense involving, or 
intending to promote, a `Federal crime of terrorism', as that term is 
defined in 18 U.S.C. 2332b(g)(5).
    (C) Prior Convictions.--In determining the amount of an enhancement 
under subsection (b)(1), note that the levels in subsections (b)(1)(A) 
and (B) depend on whether the conviction receives criminal history 
points under Chapter Four (Criminal History and Criminal Livelihood), 
while subsections (b)(1)(C), (D), and (E) apply without regard to 
whether the conviction receives criminal history points.
    2. Definition of `Felony'.--For purposes of subsection (b)(1)(A), 
(B), and (D), `felony' means any federal, state, or local offense 
punishable by imprisonment for a term exceeding one year.
    3. Application of Subsection (b)(1)(C).--
    (A) Definitions.--For purposes of subsection (b)(1)(C), `aggravated 
felony' has the meaning given that term in section 101(a)(43) of the 
Immigration and Nationality Act (8 U.S.C. 1101(a)(43)), without regard 
to the date of conviction for the aggravated felony.
    (B) In General.--The offense level shall be increased under 
subsection (b)(1)(C) for any aggravated felony (as defined in 
subdivision (A)), with respect to which the offense level is not 
increased under subsections (b)(1)(A) or (B).
    4. Application of Subsection (b)(1)(E).--For purposes of subsection 
(b)(1)(E):
    (A) `Misdemeanor' means any federal, state, or local offense 
punishable by a term of imprisonment of one year or less.
    (B) `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).
    5. Aiding and Abetting, Conspiracies, and Attempts.--Prior 
convictions of offenses counted under subsection (b)(1) include the 
offenses of aiding and abetting, conspiring, and attempting, to commit 
such offenses.
    6. Computation of Criminal History Points.--A conviction taken into 
account under subsection (b)(1) is not excluded from consideration of 
whether that conviction receives criminal history points pursuant to 
Chapter Four, Part A (Criminal History).
    7. Departure Based on Seriousness of a Prior Conviction.--There may 
be cases in which the applicable offense level substantially overstates 
or understates the seriousness of a prior conviction. In such a case, a 
departure may be warranted. Examples: (A) In a case in which subsection 
(b)(1)(A) or (b)(1)(B) does not apply and the defendant has a prior 
conviction for possessing or transporting a quantity of a controlled 
substance that exceeds a quantity consistent with personal use, an 
upward departure may be warranted. (B) In a case in which the 12-level 
enhancement under subsection (b)(1)(A) or the 8-level enhancement in 
subsection (b)(1)(B) applies but that enhancement does not adequately 
reflect the extent or seriousness of the conduct underlying the prior 
conviction, an upward departure may be warranted. (C) In a case in 
which subsection (b)(1)(A) applies, and the prior conviction does not 
meet the definition of aggravated felony at 8 U.S.C. 1101(a)(43), a 
downward departure may be warranted.'';

by redesignating Notes 8 and 9 as Notes 6 and 7, respectively, and 
inserting before Note 6 (as so redesignated) the following new Notes 1, 
2, 3, 4, and 5:
    ``1. In General.--
    (A) `Ordered Deported or Ordered Removed from the United States for 
the First Time'.--For purposes of this guideline, a defendant shall be 
considered `ordered deported or ordered removed from the United States' 
if the defendant was ordered deported or ordered removed from the 
United States based on a final order of exclusion, deportation, or 
removal, regardless of whether the order was in response to a 
conviction. `For the first time' refers to the first time the defendant 
was ever the subject of such an order.
    (B) Offenses Committed Prior to Age Eighteen.--Subsections (b)(1), 
(b)(2), and (b)(3) do not apply to a conviction for an offense 
committed before the defendant was eighteen years of age unless such 
conviction is classified as an adult conviction under the laws of the 
jurisdiction in which the defendant was convicted.
    2. Definitions.--For purposes of this guideline:
    `Crime of violence' means any of the following offenses under 
federal, state, or local law: murder, voluntary manslaughter, 
kidnapping, aggravated assault, a forcible sex offense, robbery, arson, 
extortion, the use or unlawful possession of a firearm described in 26 
U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c), or 
any other offense under federal, state, or local law that has as an 
element the use, attempted use, or threatened use of physical force 
against the person of another. `Forcible sex offense' includes where 
consent to the conduct is not given or is not legally valid, such as 
where consent to the conduct is involuntary, incompetent, or coerced. 
The offenses of sexual abuse of a minor and statutory rape are included 
only if the sexual abuse of a minor or statutory rape was (A) an 
offense described in 18 U.S.C. 2241(c) or (B) an offense under state 
law that would have been an offense under section 2241(c) if the 
offense had occurred within the special maritime and territorial 
jurisdiction of the United States. `Extortion' is obtaining something 
of value from another by the wrongful use of (A) force, (B) fear of 
physical injury, or (C) threat of physical injury.
    `Drug trafficking offense' means an offense under federal, state, 
or local law that prohibits the manufacture, import, export, 
distribution, or dispensing of, or offer to sell a controlled substance 
(or a counterfeit substance) or the possession of a controlled 
substance (or a counterfeit substance) with intent to manufacture, 
import, export, distribute, or dispense.
    `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 1326, or (B) a second or subsequent offense under 8 U.S.C. 1325(a).

[[Page 27271]]

    `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). The 
length of the sentence imposed includes any term of imprisonment given 
upon revocation of probation, parole, or supervised release.
    3. Criminal History Points.--For purposes of applying subsections 
(b)(1), (b)(2), and (b)(3), use only those convictions that receive 
criminal history points under Sec.  4A1.1(a), (b), or (c). In addition, 
for purposes of subsections (b)(1)(B), (b)(2)(E), and (b)(3)(E), use 
only those convictions that are counted separately under Sec.  
4A1.2(a)(2).
    A conviction taken into account under subsection (b)(1), (b)(2), or 
(b)(3) is not excluded from consideration of whether that conviction 
receives criminal history points pursuant to Chapter Four, Part A 
(Criminal History).
    4. Cases in Which Sentences for An Illegal Reentry Offense and 
Another Felony Offense were Imposed at the Same Time.--There may be 
cases in which the sentences for an illegal reentry offense and another 
felony offense were imposed at the same time and treated as a single 
sentence for purposes of calculating the criminal history score under 
Sec.  4A1.1(a), (b), and (c). In such a case, use the illegal reentry 
offense in determining the appropriate enhancement under subsection 
(b)(1), if it independently would have received criminal history 
points. In addition, use the prior sentence for the other felony 
offense in determining the appropriate enhancement under subsection 
(b)(3), if it independently would have received criminal history 
points.
    5. Departure Based on Seriousness of a Prior Offense.--There may be 
cases in which the offense level provided by an enhancement in 
subsection (b)(2) or (b)(3) substantially understates or overstates the 
seriousness of the conduct underlying the prior offense, because (A) 
the length of the sentence imposed does not reflect the seriousness of 
the prior offense; (B) the prior conviction is too remote to receive 
criminal history points (see Sec.  4A1.2(e)); or (C) the time actually 
served was substantially less than the length of the sentence imposed 
for the prior offense. In such a case, a departure may be warranted.''.
    The Commentary to Sec.  5G1.3 captioned ``Application Notes'' is 
amended in Note 2(B) by striking ``an aggravated felony'' and inserting 
``a prior conviction''.
    Reason for Amendment: This multi-part amendment is a result of the 
Commission's multi-year study of immigration offenses and related 
guidelines, and reflects extensive data collection and analysis 
relating to immigration offenses and offenders. Based on this data, 
legal analysis, and public comment, the Commission identified a number 
of specific areas where changes were appropriate. The first part of 
this amendment makes several discrete changes to the alien smuggling 
guideline, Sec.  2L1.1 (Smuggling, Transporting, or Harboring an 
Unlawful Alien), while the second part significantly revises the 
illegal reentry guideline, Sec.  2L1.2 (Unlawfully Entering or 
Remaining in the United States).

Alien Smuggling

    The first part of the amendment amends the alien smuggling 
guideline (Sec.  2L1.1). A 2014 letter from the Deputy Attorney General 
asked the Commission to examine several aspects of this guideline in 
light of changing circumstances surrounding the commission of these 
offenses. See Letter from James M. Cole to Hon. Patti B. Saris (Oct. 9, 
2014). In response, the Commission undertook a data analysis that, in 
conjunction with additional public comment, suggested two primary areas 
for change in the guideline.

Unaccompanied Minors

    The specific offense characteristic at Sec.  2L1.1(b)(4) provides 
an enhancement ``[i]f the defendant smuggled, transported, or harbored 
a minor who was unaccompanied by the minor's parent or grandparent.'' 
The amendment makes several changes to this enhancement.
    First, the amendment increases the enhancement at subsection (b)(4) 
from 2 levels to 4 levels, and broadens its scope to offense-based 
rather than defendant-based. These two changes were made in light of 
data, testimony, and public comment indicating that: (1) in recent 
years there has been a significant increase in the number of 
unaccompanied minors smuggled into the United States; (2) unaccompanied 
minors being smuggled are often exposed to deprivation and physical 
danger (including sexual abuse); (3) the smuggling of unaccompanied 
minors places a particularly severe burden on public resources when 
they are taken into custody; and (4) alien smuggling is typically 
conducted by multimember commercial enterprises that accept smuggling 
victims without regard to their age, such that an individual defendant 
is likely to be aware of the risk that unaccompanied minors are being 
smuggled as part of the offense.
    Second, the amendment narrows the scope of the enhancement at 
subsection (b)(4) by revising the meaning of an ``unaccompanied'' 
minor. Prior to the amendment, the enhancement did not apply if the 
minor was accompanied by the minor's parent or grandparent. The 
amendment narrows the class of offenders who would receive the 
enhancement by specifying that the enhancement does not apply if the 
minor was accompanied by the minor's ``parent, adult relative, or legal 
guardian.'' This change reflects the view that minors who are 
accompanied by a parent or another responsible adult relative or legal 
guardian ordinarily are not subject to the same level of risk as minors 
unaccompanied by such adults.
    Third, the amendment expands the definition of ``minor'' in the 
guideline, as it relates to the enhancement in subsection (b)(4), to 
include an individual under the age of 18. The guideline currently 
defines ``minor'' to include only individuals under 16 years of age. 
The Commission determined that an expanded definition of minor that 
includes 16- and 17-year-olds is consistent with other aspects of 
federal immigration law, including the statute assigning responsibility 
for unaccompanied minors under age 18 to the Department of Health and 
Human Services. See 6 U.S.C. 279(g)(2)(B). The Commission also believed 
that it was appropriate to conform the definition of minor in the alien 
smuggling guideline to the definition of minor in Sec.  3B1.4 (Using a 
Minor to Commit a Crime).

Clarification of the Enhancement Applicable to Sexual Abuse of Aliens

    The amendment addresses offenses in which an alien (whether or not 
a minor) is sexually abused. Specifically, it ensures that a ``serious 
bodily injury'' enhancement of 4 levels will apply in such a case. It 
achieves this by amending the commentary to Sec.  2L1.1 to clarify that 
the term ``serious bodily injury'' included in subsection (b)(7)(B) has 
the meaning given that term in the commentary to Sec.  1B1.1 
(Application Instructions). That instruction 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 2242 
or any similar offense under state law.
    The Commission's data indicated that the (b)(7)(B) enhancement has 
not been applied in some cases in which a smuggled alien had been 
sexually assaulted. The Commission determined

[[Page 27272]]

that this clarification is warranted to ensure that the 4-level 
enhancement is consistently applied when the offense involves the 
sexual abuse of an alien.

Illegal Reentry

    The second part of the amendment is the product of the Commission's 
multi-year study of the illegal reentry guideline. In considering this 
amendment, the Commission was informed by the Commission's 2015 report, 
Illegal Reentry Offenses; its previous consideration of the 
``categorical approach'' in the context of the definition of ``crimes 
of violence''; and extensive public testimony and public comment, in 
particular from judges from the southwest border districts where the 
majority of illegal reentry prosecutions occur.
    The amendment responds to three primary concerns. First, the 
Commission has received significant comment over several years from 
courts and stakeholders that the ``categorical approach'' used to 
determine the particular level of enhancement under the existing 
guideline is overly complex and resource-intensive and often leads to 
litigation and uncertainty. The existing guideline's single specific 
offense characteristic provides for enhancements of between 4 levels 
and 16 levels, based on the nature of a defendant's most serious 
conviction that occurred before the defendant was ``deported'' or 
``unlawfully remained in the United States.'' Determining whether a 
predicate conviction qualifies for a particular level of enhancement 
requires application of the categorical approach to the penal statute 
underlying the prior conviction. See generally United States v. Taylor, 
495 U.S. 575 (1990) (establishing the categorical approach). Instead of 
the categorical approach, the amendment adopts a much simpler sentence-
imposed model for determining the applicability of predicate 
convictions. The level of the sentencing enhancement for a prior 
conviction generally will be determined by the length of the sentence 
imposed for the prior offense, not by the type of offense for which the 
defendant had been convicted. The definition of ``sentence imposed'' is 
the same definition that appears in Chapter Four of the Guidelines 
Manual.
    Second, comment received by the Commission and sentencing data 
indicated that the existing 16- and 12-level enhancements for certain 
prior felonies committed before a defendant's deportation were overly 
severe. In fiscal year 2015, only 29.7 percent of defendants who 
received the 16-level enhancement were sentenced within the applicable 
sentencing guideline range, and only 32.4 percent of defendants who 
received the 12-level enhancement were sentenced within the applicable 
sentencing guideline range.
    Third, the Commission's research identified a concern that the 
existing guideline did not account for other types of criminal conduct 
committed by illegal reentry offenders. The Commission's 2015 report 
found that 48.0 percent of illegal reentry offenders were convicted of 
at least one offense (other than their instant illegal reentry 
conviction) after their first deportations.
    The amendment addresses these concerns by accounting for prior 
criminal conduct in a broader and more proportionate manner. The 
amendment reduces somewhat the level of enhancements for criminal 
conduct occurring before the defendant's first order of deportation and 
adds a new enhancement for criminal conduct occurring after the 
defendant's first order of deportation. It also responds to concerns 
that prior convictions for illegal reentry offenses may not be 
adequately accounted for in the existing guideline by adding an 
enhancement for prior illegal reentry and multiple prior illegal entry 
convictions.
    The manner in which the amendment responds to each of these 
concerns is discussed in more detail below.

Accounting for Prior Illegal Reentry Offenses

    The amendment provides at subsection (b)(1) a new tiered 
enhancement based on prior convictions for illegal reentry offenses 
under 8 U.S.C. 1253, 1325(a), or 1326. A defendant who has one or more 
felony illegal reentry convictions will receive an increase of 4 
levels. ``Illegal reentry offense'' is defined in the commentary to 
include all convictions under 8 U.S.C. 1253 (failure to depart after an 
order of removal) and 1326 (illegal reentry), as well as second or 
subsequent illegal entry convictions under Sec.  1325(a). A defendant 
who has two or more misdemeanor illegal entry convictions under 8 
U.S.C. 1325(a) will receive an increase of 2 levels.
    The Commission's data indicates that the extent of a defendant's 
history of illegal reentry convictions is associated with the number of 
his or her prior deportations or removals from the United States, with 
the average illegal reentry defendant having been removed from the 
United States 3.2 times. Illegal Reentry Offenses, at 14. Over one-
third (38.1%) of the defendants were previously deported after an 
illegal entry or reentry conviction. Id. at 15. The Commission 
determined that a defendant's demonstrated history of violating 
Sec. Sec.  1325(a) and 1326 is appropriately accounted for in a 
separate enhancement. Because defendants with second or successive 
Sec.  1325(a) convictions (whether they were charged as felonies or 
misdemeanors) have entered illegally more than once, the Commission 
determined that this conduct is appropriately accounted for under this 
enhancement.
    For a defendant with a conviction under Sec.  1326, or a felony 
conviction under Sec.  1325(a), the 4-level enhancement in the new 
subsection (b)(1)(A) is identical in magnitude to the enhancement the 
defendant would receive under the existing subsection (b)(1)(D). The 
Commission concluded that an enhancement is also appropriate for 
defendants previously convicted of two or more misdemeanor offenses 
under Sec.  1325(a).

Accounting for Other Prior Convictions

    Subsections (b)(2) and (b)(3) of the amended guideline account for 
convictions (other than illegal entry or reentry convictions) primarily 
through a sentence-imposed approach, which is similar to how Chapter 
Four of the Guidelines Manual determines a defendant's criminal history 
score based on his or her prior convictions. The two subsections are 
intended to divide the defendant's criminal history into two time 
periods. Subsection (b)(2) reflects the convictions, if any, that the 
defendant sustained before being ordered deported or removed from the 
United States for the first time. Subsection (b)(3) reflects the 
convictions, if any, that the defendant sustained after that event (but 
only if the criminal conduct that resulted in the conviction took place 
after that event).
    The specific offense characteristics at subsections (b)(2) and 
(b)(3) each contain a parallel set of enhancements of:
     10 levels for a prior felony conviction that received a 
sentence of imprisonment of five years or more;
     8 levels for a prior felony conviction that received a 
sentence of two years or more;
     6 levels for a prior felony conviction that received a 
sentence exceeding one year and one month;
     4 levels for any other prior felony conviction
     2 levels for three or more convictions for misdemeanors 
that are crimes of violence or drug trafficking offenses.
    The (b)(2) and (b)(3) specific offense characteristics are to be 
calculated separately, but within each specific

[[Page 27273]]

offense characteristic, a defendant may receive only the single 
greatest applicable increase.
    The Commission determined that the new specific offense 
characteristics more appropriately provide for incremental punishment 
to reflect the varying levels of culpability and risk of recidivism 
reflected in illegal reentry defendants' prior convictions. The (b)(2) 
specific offense characteristic reflects the same general rationale as 
the illegal reentry statute's increased statutory maximum penalties for 
offenders with certain types of serious pre-deportation predicate 
offenses (in particular, ``aggravated felonies'' and ``felonies''). See 
8 U.S.C. 1326(b)(1) and (b)(2). The Commission's data analysis of 
offenders' prior felony convictions showed that the more serious types 
of offenses, such as drug-trafficking offenses, crimes of violence, and 
sex offenses, tended to receive sentences of imprisonment of two years 
or more, while the less serious felony offenses, such as felony theft 
or drug possession, tended to receive much shorter sentences. The 
sentence-length benchmarks in (b)(2) are based on this data.
    The (b)(3) specific offense characteristic focuses on post-reentry 
criminal conduct which, if it occurred after a defendant's most recent 
illegal reentry, would receive no enhancement under the existing 
guideline. The Commission concluded that a defendant who sustains 
criminal convictions occurring before and after the defendant's first 
order of deportation warrants separate sentencing enhancement.
    The Commission concluded that the length of sentence imposed by a 
sentencing court is a strong indicator of the court's assessment of the 
seriousness of the predicate offense at the time, and this approach is 
consistent with how criminal history is generally scored in the Chapter 
Four of the Guidelines Manual. In amending the guideline, the 
Commission also took into consideration public testimony and comment 
indicating that tiered enhancements based on the length of the sentence 
imposed, rather than the classification of a prior offense under the 
categorical approach, would greatly simplify application of the 
guideline. With respect an offender's prior felony convictions, the 
amendment eliminates the use of the categorical approach, which has 
been criticized as cumbersome and overly legalistic.
    The amendment retains the use of the categorical approach for 
predicate misdemeanor convictions in the new subsections (b)(2)(E) and 
(b)(3)(E) in view of a congressional directive requiring inclusion of 
an enhancement for certain types of misdemeanor offenses. See Illegal 
Immigration and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 
Sec.  344, 110 Stat. 3009.
    The amendment also addresses another frequent criticism of the 
existing guideline--that its use of a single predicate conviction 
sustained by a defendant before being deported or removed from the 
United States to impose an enhancement of up to 16 levels is often 
disproportionate to a defendant's culpability or recidivism risk. The 
Commission's data shows an unusually high rate of downward variances 
and departures from the guideline for such defendants. For example, the 
Commission's report found that less than one-third of defendants who 
qualify for a 16-level enhancement have received a within-range 
sentence, while 92.7 percent of defendants who currently qualify for no 
enhancement receive a within-range sentence. Illegal Reentry Report, at 
11.
    The lengths of the terms of imprisonment triggering each level of 
enhancement were set based on Commission data showing differing median 
sentence lengths for a variety of predicate offense categories. For 
example, the Commission's data indicated that sentences for more 
serious predicate offenses, such as drug-trafficking and felony 
assault, exceeded the two- and five-year benchmarks far more frequently 
than did sentences for less serious felony offenses, such as drug 
possession and theft. With respect to drug-trafficking offenses, the 
Commission found that 34.6 percent of such offenses received sentences 
of between two and five years, and 17.0 percent of such offenses 
received sentences of five years or more. With respect to felony 
assault offenses, the Commission found that 42.1 percent of such 
offenses received sentences of between two and five years, and 9.0 
percent of such offenses received sentences of five years or more. With 
respect to felony drug possession offenses, 67.7 percent of such 
offenses received sentences of 13 months or less, while only 21.3 
percent received sentences between two years and five years and only 
3.0 percent received sentences of five years or more. With respect to 
felony theft offenses, 57.1 percent of such offenses received sentences 
of 13 months or less, while only 17.4 percent received sentences 
between two years and five years and only 2.0 percent received 
sentences of five years or more.
    The Commission considered public comment suggesting that the term 
of imprisonment a defendant actually served for a prior conviction was 
a superior means of assessing the seriousness of the prior offense. The 
Commission determined that such an approach would be administratively 
impractical due to difficulties in obtaining accurate documentation. 
The Commission determined that a sentence-imposed approach is 
consistent with the Chapter Four criminal history rules, easily 
applied, and appropriately calibrated to account for the seriousness of 
prior offenses.

Departure Provision

    The amendment adds a new departure provision, at Application Note 
5, applicable to situations where ``an enhancement in subsection (b)(2) 
or (b)(3) substantially understates or overstates the seriousness of 
the conduct underlying the prior offense.'' This departure accounts for 
three situations in which an enhancement based on the length of a prior 
imposed sentence appears either inadequate or excessive in light of the 
defendant's underlying conduct. For example, if a prior serious 
conviction (e.g., murder) is not accounted for because it 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. 
Conversely, if the time actually served by the defendant for the prior 
offense was substantially less than the length of the original sentence 
imposed, a downward departure may be warranted.

Excluding Stale Convictions

    For all three specific offense characteristics, the amendment 
considers prior convictions only if the convictions receive criminal 
history points under the rules in Chapter Four. Counting only 
convictions that receive criminal history points addresses concerns 
that the existing guideline sometimes has provided for an unduly severe 
enhancement based on a single offense so old it did not receive 
criminal history points. The Commission's research has found that a 
defendant's criminal history score is a strong indicator of recidivism 
risk, and it is therefore appropriate to employ the criminal history 
rules in this context. See U.S. Sent. Comm'n, Recidivism Among Federal 
Offenders: A Comprehensive Overview (2016). The limitation to offenses 
receiving criminal history points also promotes ease of application and 
uniformity throughout the guidelines. See 28 U.S.C. 994(c)(2) 
(directing the Commission to establish categories of offenses based on 
appropriate mitigating and aggravating factors); cf. USSG Sec.  2K2.1, 
comment.

[[Page 27274]]

(n.10) (imposing enhancements based on a defendant's predicate 
convictions only if they received criminal history points).

Application of the ``Single Sentence Rule''

    The amendment also contains an application note addressing the 
situation when a defendant was simultaneously sentenced for an illegal 
reentry offense and another federal felony offense. It clarifies that, 
in such a case, the illegal reentry offense counts towards subsection 
(b)(1), while the other felony offense counts towards subsection 
(b)(3).
    Because the amendment is intended to make a distinction between 
illegal reentry offenses and other types of offenses, the Commission 
concluded that it was appropriate to ensure that such convictions are 
separately accounted for under the applicable specific offense 
characteristics, even if they might otherwise constitute a ``single 
sentence'' under Sec.  4A1.2(a)(2). For example, if the single sentence 
rule applied, a defendant who was sentenced simultaneously for an 
illegal reentry and a federal felony drug-trafficking offense might 
receive an enhancement of only 4 levels under subsection (b)(1), even 
though, if the two sentences had been imposed separately, the drug 
offense would result in an additional enhancement of between 4 and 10 
levels under subsection (b)(3).

Definition of ``Crime of Violence''

    The amendment continues to use the term ``crime of violence,'' 
although now solely in reference to the 2-level enhancement for three 
or more misdemeanor convictions at subsections (b)(2)(E) and (b)(3)(E). 
The amendment conforms the definition of ``crime of violence'' in 
Application Note 2 to that adopted for use in the career offender 
guideline effective August 1, 2016. See Notice of Submission to 
Congress of Amendment to the Sentencing Guidelines Effective August 1, 
2016, 81 FR 4741 (Jan. 27, 2016). Uniformity and ease of application 
weigh in favor of using a consistent definition for the same term 
throughout the Guidelines Manual.
    5. Amendment: Section 5B1.3 is amended in the heading by striking 
``Conditions--'' and inserting ``Conditions'';

in subsections (a)(1) through (a)(8) by striking the initial letter of 
the first word in each subsection and inserting the appropriate capital 
letter for the word, and by striking the semicolon at the end of each 
subsection and inserting a period;

in subsection (a)(6), as so amended, by inserting before the period 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'';

by striking subsection (a)(9) as follows:

    ``(9) (A) in a state in which the requirements of the Sex Offender 
Registration and Notification Act (see 42 U.S.C. 16911 and 16913) do 
not apply, a defendant convicted of a sexual offense as described in 18 
U.S.C. 4042(c)(4) (Pub. L. 105-119, Sec.  115(a)(8), Nov. 26, 1997) 
shall report the address where the defendant will reside and any 
subsequent change of residence to the probation officer responsible for 
supervision, and shall register as a sex offender in any State where 
the person resides, is employed, carries on a vocation, or is a 
student; or
    (B) in a state in which the requirements of Sex Offender 
Registration and Notification Act apply, a sex offender shall (i) 
register, and keep such registration current, where the offender 
resides, where the offender is an employee, and where the offender is a 
student, and for the initial registration, a sex offender also shall 
register in the jurisdiction in which convicted if such jurisdiction is 
different from the jurisdiction of residence; (ii) provide information 
required by 42 U.S.C. 16914; and (iii) keep such registration current 
for the full registration period as set forth in 42 U.S.C. 16915;'',

and inserting the following:

    ``(9) If the defendant is required to register under the Sex 
Offender Registration and Notification Act, the defendant shall comply 
with the requirements of that Act (see 18 U.S.C. 3563(a)).'';

and in subsection (a)(10) by striking ``the defendant'' and inserting 
``The defendant'';

in subsection (b) by striking ``The court'' and inserting the 
following:

    ``Discretionary Conditions
    The court'';

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

    `` `Standard' Conditions (Policy Statement)
    The'';

and by striking paragraphs (1) through (14) as follows:

    ``(1) the defendant shall not leave the judicial district or other 
specified geographic area without the permission of the court or 
probation officer;
    (2) the defendant shall report to the probation officer as directed 
by the court or probation officer and shall submit a truthful and 
complete written report within the first five days of each month;
    (3) the defendant shall answer truthfully all inquiries by the 
probation officer and follow the instructions of the probation officer;
    (4) the defendant shall support the defendant's dependents and meet 
other family responsibilities (including, but not limited to, complying 
with the terms of any court order or administrative process pursuant to 
the law of a state, the District of Columbia, or any other possession 
or territory of the United States requiring payments by the defendant 
for the support and maintenance of any child or of a child and the 
parent with whom the child is living);
    (5) the defendant shall work regularly at a lawful occupation 
unless excused by the probation officer for schooling, training, or 
other acceptable reasons;
    (6) the defendant shall notify the probation officer at least ten 
days prior to any change of residence or employment;
    (7) the defendant shall refrain from excessive use of alcohol and 
shall not purchase, possess, use, distribute, or administer any 
controlled substance, or any paraphernalia related to any controlled 
substance, except as prescribed by a physician;
    (8) the defendant shall not frequent places where controlled 
substances are illegally sold, used, distributed, or administered, or 
other places specified by the court;
    (9) the defendant shall not associate with any persons engaged in 
criminal activity, and shall not associate with any person convicted of 
a felony unless granted permission to do so by the probation officer;
    (10) the defendant shall permit a probation officer to visit the 
defendant at any time at home or elsewhere and shall permit 
confiscation of any contraband observed in plain view by the probation 
officer;
    (11) the defendant shall notify the probation officer within 
seventy-two hours of being arrested or questioned by a law enforcement 
officer;
    (12) the defendant shall not enter into any agreement to act as an 
informer or a special agent of a law enforcement agency without the 
permission of the court;
    (13) as directed by the probation officer, the defendant shall 
notify third parties of risks that may be occasioned by the defendant's 
criminal record or personal history or characteristics, and shall 
permit the probation officer to make such notifications and to confirm

[[Page 27275]]

the defendant's compliance with such notification requirement;
    (14) the defendant shall pay the special assessment imposed or 
adhere to a court-ordered installment schedule for the payment of the 
special assessment.'', and inserting the following:

    ``(1) The defendant shall 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 instructs 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 shall report to the probation officer as instructed.
    (3) The defendant shall 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 shall answer truthfully the questions asked by 
the probation officer.
    (5) The defendant shall 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 shall notify the probation officer 
at least 10 days before the change. If notifying the probation officer 
at least 10 days in advance is not possible due to unanticipated 
circumstances, the defendant shall notify the probation officer within 
72 hours of becoming aware of a change or expected change.
    (6) The defendant shall allow the probation officer to visit the 
defendant at any time at his or her home or elsewhere, and the 
defendant shall 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 shall 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 shall 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 
shall notify the probation officer at least 10 days before the change. 
If notifying the probation officer at least 10 days in advance is not 
possible due to unanticipated circumstances, the defendant shall notify 
the probation officer within 72 hours of becoming aware of a change or 
expected change.
    (8) The defendant shall 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 shall not 
knowingly communicate or interact with that person without first 
getting the permission of the probation officer.
    (9) If the defendant is arrested or questioned by a law enforcement 
officer, the defendant shall notify the probation officer within 72 
hours.
    (10) The defendant shall 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 shall 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 notify the person about the risk 
and the defendant shall comply with that instruction. The probation 
officer may contact the person and confirm that the defendant has 
notified the person about the risk.
    (13) The defendant shall 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) as follows:

    ``(1) Possession of Weapons
    If the instant conviction is for a felony, or if the defendant was 
previously convicted of a felony or used a firearm or other dangerous 
weapon in the course of the instant offense--a condition prohibiting 
the defendant from possessing a firearm or other dangerous weapon.'',

and inserting the following:

    ``(1) Support of Dependents
    (A) If the defendant has one or more dependents--a condition 
specifying that the defendant shall support his or her dependents.
    (B) 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--a condition specifying that the defendant shall 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 before the period at the end the following: ``; and (B) a 
condition specifying that the defendant shall not use or possess 
alcohol''.

    The Commentary to Sec.  5B1.3 captioned ``Application Note'' is 
amended by striking Note 1 as follows:
    ``1. Application of Subsection (a)(9)(A) and (B).--Some 
jurisdictions continue to register sex offenders pursuant to the sex 
offender registry in place prior to July 27, 2006, the date of 
enactment of the Adam Walsh Act, which contained the Sex Offender 
Registration and Notification Act. In such a jurisdiction, subsection 
(a)(9)(A) will apply. In a jurisdiction that has implemented the 
requirements of the Sex Offender Registration and Notification Act, 
subsection (a)(9)(B) will apply. (See 42 U.S.C. 16911 and 16913.)'',

and inserting the following:

    ``1. Application of Subsection (c)(4).--Although the condition in 
subsection (c)(4) requires the defendant to `answer truthfully' the 
questions asked by the probation officer, a defendant'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 condition.''.
    Section 5D1.3 is amended is amended in the heading by striking 
``Conditions--'' and inserting ``Conditions'';

in subsections (a)(1) through (a)(6) by striking the initial letter of 
the first word in each subsection and inserting the appropriate capital 
letter for the word, and by striking the semicolon at the end of each 
subsection and inserting a period;

in subsection (a)(6), as so amended, by inserting before the period 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'';

by striking subsection (a)(7) as follows:

    ``(7) (A) in a state in which the requirements of the Sex Offender 
Registration and Notification Act (see 42

[[Page 27276]]

U.S.C. 16911 and 16913) do not apply, a defendant convicted of a sexual 
offense as described in 18 U.S.C. 4042(c)(4) (Pub. L. 105-119, Sec.  
115(a)(8), Nov. 26, 1997) shall report the address where the defendant 
will reside and any subsequent change of residence to the probation 
officer responsible for supervision, and shall register as a sex 
offender in any State where the person resides, is employed, carries on 
a vocation, or is a student; or
    (B) in a state in which the requirements of Sex Offender 
Registration and Notification Act apply, a sex offender shall (i) 
register, and keep such registration current, where the offender 
resides, where the offender is an employee, and where the offender is a 
student, and for the initial registration, a sex offender also shall 
register in the jurisdiction in which convicted if such jurisdiction is 
different from the jurisdiction of residence; (ii) provide information 
required by 42 U.S.C. 16914; and (iii) keep such registration current 
for the full registration period as set forth in 42 U.S.C. 16915;'',

and inserting the following:

    ``(7) If the defendant is required to register under the Sex 
Offender Registration and Notification Act, the defendant shall comply 
with the requirements of that Act (see 18 U.S.C. 3583(d)).'';

and in subsection (a)(8) by striking ``the defendant'' and inserting 
``The defendant'';

in subsection (b) by striking ``The court'' and inserting the 
following:

    ``Discretionary Conditions
    The court'';

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

    `` `Standard' Conditions (Policy Statement)
    The'';

and by striking paragraphs (1) through (15) as follows:

    ``(1) the defendant shall not leave the judicial district or other 
specified geographic area without the permission of the court or 
probation officer;
    (2) the defendant shall report to the probation officer as directed 
by the court or probation officer and shall submit a truthful and 
complete written report within the first five days of each month;
    (3) the defendant shall answer truthfully all inquiries by the 
probation officer and follow the instructions of the probation officer;
    (4) the defendant shall support the defendant's dependents and meet 
other family responsibilities (including, but not limited to, complying 
with the terms of any court order or administrative process pursuant to 
the law of a state, the District of Columbia, or any other possession 
or territory of the United States requiring payments by the defendant 
for the support and maintenance of any child or of a child and the 
parent with whom the child is living);
    (5) the defendant shall work regularly at a lawful occupation 
unless excused by the probation officer for schooling, training, or 
other acceptable reasons;
    (6) the defendant shall notify the probation officer at least ten 
days prior to any change of residence or employment;
    (7) the defendant shall refrain from excessive use of alcohol and 
shall not purchase, possess, use, distribute, or administer any 
controlled substance, or any paraphernalia related to any controlled 
substance, except as prescribed by a physician;
    (8) the defendant shall not frequent places where controlled 
substances are illegally sold, used, distributed, or administered, or 
other places specified by the court;
    (9) the defendant shall not associate with any persons engaged in 
criminal activity, and shall not associate with any person convicted of 
a felony unless granted permission to do so by the probation officer;
    (10) the defendant shall permit a probation officer to visit the 
defendant at any time at home or elsewhere and shall permit 
confiscation of any contraband observed in plain view by the probation 
officer;
    (11) the defendant shall notify the probation officer within 
seventy-two hours of being arrested or questioned by a law enforcement 
officer;
    (12) the defendant shall not enter into any agreement to act as an 
informer or a special agent of a law enforcement agency without the 
permission of the court;
    (13) as directed by the probation officer, the defendant shall 
notify third parties of risks that may be occasioned by the defendant's 
criminal record or personal history or characteristics, and shall 
permit the probation officer to make such notifications and to confirm 
the defendant's compliance with such notification requirement;
    (14) the defendant shall pay the special assessment imposed or 
adhere to a court-ordered installment schedule for the payment of the 
special assessment;
    (15) 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 inserting the following:

    ``(1) The defendant shall 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 instructs 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 shall report to the probation officer as instructed.
    (3) The defendant shall 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 shall answer truthfully the questions asked by 
the probation officer.
    (5) The defendant shall 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 shall notify the probation officer 
at least 10 days before the change. If notifying the probation officer 
at least 10 days in advance is not possible due to unanticipated 
circumstances, the defendant shall notify the probation officer within 
72 hours of becoming aware of a change or expected change.
    (6) The defendant shall allow the probation officer to visit the 
defendant at any time at his or her home or elsewhere, and the 
defendant shall 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 shall 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 shall 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 
shall notify the probation officer at least 10 days before the change. 
If notifying the probation officer in advance is not possible due to 
unanticipated circumstances, the defendant shall notify the probation 
officer within 72 hours of becoming aware of a change or expected 
change.

[[Page 27277]]

    (8) The defendant shall 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 shall not 
knowingly communicate or interact with that person without first 
getting the permission of the probation officer.
    (9) If the defendant is arrested or questioned by a law enforcement 
officer, the defendant shall notify the probation officer within 72 
hours.
    (10) The defendant shall 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 shall 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 notify the person about the risk 
and the defendant shall comply with that instruction. The probation 
officer may contact the person and confirm that the defendant has 
notified the person about the risk.
    (13) The defendant shall 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) as follows:

    ``(1) Possession of Weapons
    If the instant conviction is for a felony, or if the defendant was 
previously convicted of a felony or used a firearm or other dangerous 
weapon in the course of the instant offense--a condition prohibiting 
the defendant from possessing a firearm or other dangerous weapon.'',

and inserting the following:

    ``(1) Support of Dependents
    (A) If the defendant has one or more dependents--a condition 
specifying that the defendant shall support his or her dependents.
    (B) 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--a condition specifying that the defendant shall make the 
payments and comply with the other terms of the order.'';

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

and by inserting at the end the following new paragraph (8):

    ``(8) Unpaid Restitution, Fines, or Special Assessments
    If the defendant has any unpaid amount of restitution, fines, or 
special assessments, 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.''.
    The Commentary to Sec.  5D1.3 captioned ``Application Note'' is 
amended by striking Note 1 as follows:
    ``1. Application of Subsection (a)(7)(A) and (B).--Some 
jurisdictions continue to register sex offenders pursuant to the sex 
offender registry in place prior to July 27, 2006, the date of 
enactment of the Adam Walsh Act, which contained the Sex Offender 
Registration and Notification Act. In such a jurisdiction, subsection 
(a)(7)(A) will apply. In a jurisdiction that has implemented the 
requirements of the Sex Offender Registration and Notification Act, 
subsection (a)(7)(B) will apply. (See 42 U.S.C. 16911 and 16913.)'',

and inserting the following:

    ``1. Application of Subsection (c)(4).--Although the condition in 
subsection (c)(4) requires the defendant to `answer truthfully' the 
questions asked by the probation officer, a defendant'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 condition.''.
    Reason for Amendment: This amendment is a result of the 
Commission's multi-year review of sentencing practices relating to 
federal probation and supervised release. The amendment makes several 
changes to the guidelines and policy statements related to conditions 
of probation, Sec.  5B1.3 (Conditions of Probation), and supervised 
release, Sec.  5D1.3 (Conditions of Supervised Release).
    When imposing a sentence of probation or a sentence of imprisonment 
that includes a period of supervised release, the court is required to 
impose certain conditions of supervision listed by statute. 18 U.S.C. 
3563(a) and 3583(d). Congress has also empowered courts to impose 
additional conditions of probation and supervised release that are 
reasonably related to statutory sentencing factors contained in 18 
U.S.C. 3553(a), so long as those conditions ``involve only such 
deprivations of liberty or property as are reasonably necessary for the 
purposes indicated in 3553(a)(2).'' 18 U.S.C. 3563(b); see also 18 
U.S.C. 3583(d). Additional conditions of supervised release must also 
be consistent with any pertinent policy statements issued by the 
Commission. See 18 U.S.C. 3583(d)(3).
    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), and has implemented 
this directive in Sec. Sec.  5B1.3 and 5D1.3. The provisions follow a 
parallel structure, first setting forth those conditions of supervision 
that are required by statute in their respective subsections (a) and 
(b), and then providing guidance on discretionary conditions, which are 
categorized as ``standard'' conditions, ``special'' conditions, and 
``additional'' special conditions, in subsections (c), (d), and (e), 
respectively.
    In a number of cases, defendants have raised objections (with 
varied degrees of success) to the conditions of supervised release and 
probation imposed upon them at the time of sentencing. See, e.g., 
United States v. Munoz, 812 F.3d 809 (10th Cir. 2016); United States v. 
Kappes, 782 F.3d 828, 848 (7th Cir. 2015); United States v. Siegel, 753 
F.3d 705 (7th Cir. 2014); United States v. Bahr, 730 F.3d 963 (9th Cir. 
2013); United States v. Maloney, 513 F.3d 350, 357-59 (3d Cir. 2008); 
United States v. Saechao, 418 F.3d 1073, 1081 (9th Cir. 2005). 
Challenges have been made on the basis that certain conditions are 
vaguely worded, pose constitutional concerns, or have been categorized 
as ``standard'' conditions in a manner that has led to their improper 
imposition upon particular offenders.
    The amendment responds to many of the concerns raised in these 
challenges by revising, clarifying, and rearranging the conditions 
contained in Sec. Sec.  5B1.3 and 5D1.3 in order to make them easier 
for defendants to understand and probation officers to enforce. Many of 
the challenged conditions are those laid out in the Judgment in a 
Criminal Case Form, AO245B, which are nearly identical to the 
conditions in Sec. Sec.  5B1.3 and 5D1.3.
    The amendment was supported by the Criminal Law Committee (CLC) of 
the Judicial Conference of the United States.

[[Page 27278]]

The CLC has long taken an active and ongoing role in developing, 
monitoring and recommending revisions to the condition of supervision, 
which represent the core supervision practices required by the federal 
supervision model. The changes in the amendment are consistent with 
proposed changes to the national judgment form recently endorsed by the 
CLC and Administrative Office of the U.S. Courts, after an exhaustive 
review of those conditions aided by probation officers from throughout 
the country.
    As part of this broader revision, the conditions in Sec. Sec.  
5B1.3 and 5D1.3 have been renumbered. Where the specific conditions 
discussed below are identified by a guidelines provision reference, 
that numeration is in reference to their pre-amendment order.

Court-Established Payment Schedules

    First, the amendment amends Sec. Sec.  5B1.3(a)(6) and 5D1.3(a)(6) 
to set forth as a ``mandatory'' condition that if there is a court-
established payment schedule for making restitution or paying a special 
assessment, the defendant shall adhere to the schedule. Previously, 
those conditions were classified as ``standard.'' As a conforming 
change, similar language at Sec. Sec.  5B1.3(c)(14) and 5D1.3(c)(14) is 
deleted. This change is made to more closely adhere to the requirements 
of 18 U.S.C. 3572(d).

Sex Offender Registration and Notification Act

    Second, the amendment amends Sec. Sec.  5B1.3(a)(9) and 5D1.3(a)(7) 
to clarify that, if the defendant is required to register under the Sex 
Offender Registration and Notification Act (SORNA), the defendant shall 
comply with the requirements of the SORNA. Language in the guideline 
provisions and the accompanying commentary indicating that the Act 
applies in some states and not in others is correspondingly deleted. 
After receiving testimony from the Department of Justice suggesting the 
current condition could be misread, the Commission determined that the 
condition's language should be simplified and updated to unambiguously 
reflect that federal sex offender registration requirements apply in 
all states.

Reporting to the Probation Officer

    Third, the amendment divides the initial and regular reporting 
requirements, Sec. Sec.  5B1.3(a)(2) and 5D1.3(a)(2), into two more 
definite provisions. The amendment also amends the conditions to 
require that the defendant report to the probation office in the 
jurisdiction where he or she is authorized to reside, within 72 hours 
of release unless otherwise directed, and that the defendant must 
thereafter report to the probation officer as instructed by the court 
or the probation officer.

Leaving the Jurisdiction

    Fourth, the amendment revises Sec. Sec.  5B1.3(c)(1) and 
5D1.3(c)(1), which prohibit defendants from leaving the judicial 
district without permission, for clarity and to insert a mental state 
(mens rea) requirement that a defendant must not leave the district 
``knowingly.'' Testimony received by the Commission has observed that a 
rule prohibiting a defendant from leaving the district without 
permission of the court or probation officer may be unfairly applied to 
a defendant who unknowingly moves between districts. The Commission 
concluded that this change appropriately responds to that concern.

Answering Truthfully; Following Instructions

    Fifth, the amendment divides Sec. Sec.  5B1.3(c)(3) and 5D1.3(c)(3) 
into separate conditions which individually require the defendant to 
``answer truthfully'' the questions of the probation officer and to 
follow the instructions of the probation officer ``related to the 
conditions of supervision.''
    The amendment also adds commentary to clarify that a defendant'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 the ``answer truthfully'' condition. The 
Commission determined that this approach adequately addresses Fifth 
Amendment concerns raised by some courts, see, e.g., United States v. 
Kappes, 782 F.3d 828, 848 (7th Cir. 2015) and United States v. Saechao, 
418 F.3d 1073, 1081 (9th Cir. 2005), while preserving the probation 
officer's ability to adequately supervise the defendant.

Residence and Employment

    Sixth, the amendment clarifies the standard conditions relating to 
a defendant's residence, Sec. Sec.  5B1.3(c)(6) and 5D1.3(c)(6), and 
the requirement that the defendant work full time, Sec. Sec.  
5B1.3(c)(5) and 5D1.3(c)(5). The revised conditions spell out in plain 
language that the defendant must live at a place ``approved by the 
probation officer,'' and that the defendant must work full time (at 
least 30 hours per week) at a lawful type of employment -- or seek to 
do so -- unless excused by the probation officer. The defendant must 
also notify the probation officer of changes in residence or employment 
at least 10 days in advance of the change or, if this is not possible, 
within 72 hours of becoming aware of a change. The Commission 
determined that these changes are appropriate to ensure that defendants 
are made aware of what will be required of them while under 
supervision. These requirements and associated benchmarks (e.g., 30 
hours per week) are supported by testimony from the CLC as appropriate 
to meet supervision needs.

Visits by Probation Officer

    Seventh, the amendment amends the conditions requiring the 
defendant to permit the probation officer to visit the defendant at any 
time, at home or elsewhere, and to permit the probation officer to 
confiscate items prohibited by the defendant's terms of release, 
Sec. Sec.  5B1.3(c)(10) and 5D1.3(c)(10). The revision provides plain 
language notice to defendants and guidance to probation officers.
    The Seventh Circuit has criticized this condition as intrusive and 
not necessarily connected to the offense of conviction, see United 
States v. Kappes, 782 F.3d 828, 850-51 (7th Cir. 2015) and United 
States v. Thompson, 777 F.3d 368, 379-80 (7th Cir. 2015), but the 
Commission has determined that, in some circumstance, adequate 
supervision of defendants may require probation officers to have the 
flexibility to visit defendants at off-hours, at their workplaces, and 
without advance notice to the supervisee. For example, some supervisees 
work overnight shifts and, in order to verify that they are in 
compliance with the condition of supervision requiring employment, a 
probation officer might have to visit them at their workplace very late 
in the evening.

Association with Criminals

    Eighth, the amendment revises and clarifies the conditions 
mandating that the defendant not associate with persons engaged in 
criminal activity or persons convicted of a felony unless granted 
permission to do so by the probation officer, Sec. Sec.  5B1.3(c)(9) 
and 5D1.3(c)(9). As amended, the condition requires that the defendant 
must not ``communicate or interact with'' any person whom the defendant 
``knows'' to be engaged in ``criminal activity'' and prohibits the 
defendant from communicating or interacting with those whom the 
defendant ``knows'' to have been ``convicted of a felony'' without 
advance permission of the probation officer.

[[Page 27279]]

    These revisions address concerns expressed by the Seventh Circuit 
that the condition is vague and lacks a mens rea requirement. See 
United States v. Kappes, 782 F.3d 828, 848-49 (7th Cir. 2015); see also 
United States v. King, 608 F.3d 1122, 1128 (9th Cir. 2010) (upholding 
the condition by interpreting it to have an implicit mens rea 
requirement). The revision adds an express mental state requirement and 
replaces the term ``associate'' with more definite language.

Arrested or Questioned by a Law Enforcement Officer

    Ninth, the amendment makes clerical changes to the ``standard'' 
conditions requiring that the defendant notify the probation officer 
after being arrested or questioned by a law enforcement officer. See 
Sec. Sec.  5B1.3(11) and 5D1.3(11).

Firearms and Dangerous Weapons

    Tenth, the amendment reclassifies the ``special'' conditions which 
require that the defendant not possess a firearm or other dangerous 
weapon, Sec. Sec.  5B1.3(d)(1) and 5D1.3(d)(1), as ``standard'' 
conditions and clarifies those conditions. As amended, the defendant 
must not ``own, possess, or have access to'' a firearm, ammunition, 
destructive device, or dangerous weapon. After reviewing the testimony 
from the CLC and others, the Commission determined that reclassifying 
this condition as a ``standard'' condition will promote public safety 
and reduce safety risks to probation officers. The amendment also 
defines ``dangerous weapon'' as ``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.''

Acting as an Informant

    Eleventh, the amendment rewords the ``standard'' condition at 
Sec. Sec.  5B1.3(c)(12) and 5D1.3(c)(12) requiring that the defendant 
not enter into an agreement to act as an informant without permission 
of the court. The condition is revised to improve clarity.

Duty to Notify of Risks Posed by the Defendant

    Twelfth, the amendment revises the conditions requiring the 
defendant, at the direction of the probation officer, to notify others 
of risks the defendant may pose based on his or her personal history or 
characteristics, Sec. Sec.  5B1.3(c)(13) and 5D1.3(c)(13). As amended, 
the condition provides that, if the probation officer determines that 
the defendant poses a risk to another person, the probation officer may 
require the defendant to tell the person about the risk and permits the 
probation officer to confirm that the defendant has done so. The 
Commission determined that this revision is appropriate to address 
criticism by the Seventh Circuit regarding potential ambiguity in how 
the condition is currently phrased. See United States v. Thompson, 777 
F.3d 368, 379 (7th Cir. 2015).

Support of Dependents

    Thirteenth, the amendment clarifies and moves the dependent support 
requirement from the list of ``standard'' conditions, Sec. Sec.  
5B1.3(c)(4) and 5D1.3(c)(4), to the list of ``special'' conditions in 
subsection (d). As amended, the conditions require that, if the 
defendant has dependents, he or she must support those dependents; and 
if the defendant is ordered to make child support payments, he or she 
must make the payments and comply with the other terms of the order.
    These changes address concerns expressed by the Seventh Circuit 
that the current condition--which requires a defendant to ``support his 
or her dependents and meet other family responsibilities''--is vague 
and does apply to defendants who have no dependents. See United States 
v. Kappes, 782 F.3d 828, 849 (7th Cir. 2015) and United States v. 
Thompson, 777 F.3d 368, 379-80 (7th Cir. 2015). The amendment uses 
plainer language to provide better notice to the defendant about what 
is required. The Commission determined that this condition need not 
apply to all defendants but only to those with dependents.

Alcohol; Controlled Substances; Frequenting Places Where Controlled 
Substances are Sold

    Fourteenth, the standard conditions requiring that the defendant 
refrain from excessive use of alcohol, not possess or distribute 
controlled substances or paraphernalia, and not frequent places where 
controlled substances are illegally sold, Sec. Sec.  5B1.3(c)(7)-(8) 
and 5D1.3(c)(7)-(8), have been deleted. The Commission determined that 
these conditions are either best dealt with as special conditions or 
are redundant with other conditions. Specifically, to account for the 
supervision needs of defendants with alcohol abuse problems, a new 
special condition that the defendant ``must not use or possess 
alcohol'' has been added. The requirement that the defendant abstain 
from the illegal use of controlled substances is covered by the 
``mandatory'' conditions prohibiting commission of additional crimes 
and requiring substance abuse testing. Finally, the prohibition on 
frequenting places where controlled substances are illegally sold is 
encompassed by the ``standard'' condition that defendants not associate 
with those they know to be criminals or who are engaged in criminal 
activity.

Material Change in Economic Circumstances (Sec.  5D1.3 Only)

    Finally, with respect to supervised release only, the ``standard'' 
condition requiring that the defendant 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, Sec.  5D1.3(c)(15), is 
reclassified as a ``special'' condition in subsection (d). Testimony 
from the CLC and others indicated that defendants on supervised release 
often have no outstanding restitution, fines, or special assessments 
remaining at the time of their release, rendering the condition 
superfluous in those cases. No change has been made to the parallel 
``mandatory'' condition of probation at Sec.  5B1.3(a)(7).
    6. Amendment: Section 2K2.1 is amended in subsection (a)(8) by 
inserting ``, or 18 U.S.C. 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,''.
    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)''.
    The Commentary to Sec.  2T1.6 captioned ``Background'' is amended 
by striking ``The offense is a felony that is infrequently 
prosecuted.''.
    Chapter Two, Part T, Subpart 2, is amended in the Introductory 
Commentary by striking ``Because these offenses are no longer a major 
enforcement priority, no effort'' and inserting ``No effort''.
    Section 2T2.1 is amended by striking the Commentary captioned 
``Background'' as follows:
    ``Background: The most frequently prosecuted conduct violating this 
section is operating an illegal still. 26 U.S.C. 5601(a)(1).''.
    Section 2T2.2 is amended by striking the Commentary captioned 
``Background'' as follows:
    ``Background: Prosecutions of this type are infrequent.''.
    Appendix A (Statutory Index) is amended by inserting after the line

[[Page 27280]]

referenced to 18 U.S.C. 1712 the following:

``18 U.S.C. 1715                         2K2.1'';
 

by inserting after the line referenced to 18 U.S.C. 2280 the following:

``18 U.S.C. 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. 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''.
 

Reason for Amendment: This amendment responds to recently enacted 
legislation and miscellaneous guideline application issues.

USA FREEDOM Act

    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), set forth changes to statutes 
related to maritime navigation and nuclear terrorism and provided new 
and expanded criminal offenses to implement the United States' 
obligations under certain provisions of four international conventions. 
The USA FREEDOM Act also specified that the new crimes constitute 
``federal crimes of terrorism.'' See 18 U.S.C. 2332b(g)(5). The 
amendment responds to the USA FREEDOM Act by referencing the new 
offenses in Appendix A (Statutory Index) to various Chapter Two 
guidelines covering murder and assault, weapons, national security, and 
environmental offenses.
    First, the USA FREEDOM Act enacted 18 U.S.C. 2280a (Violence 
against maritime navigation and maritime transport involving weapons of 
mass destruction). Subsections 2280a(a)(1)(A) and (a)(1)(B)(i) prohibit 
certain acts 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. Subsections 2280a(a)(1)(B)(ii)-(vi) prohibit certain other 
acts against maritime navigation. Subsection 2280a(a)(1)(C) prohibits 
transporting another person on board a ship knowing the person has 
committed a violation under 18 U.S.C. 2280 (Violence against maritime 
navigation) or certain subsections of section 2280a, or an offense 
under a listed counterterrorism treaty. Subsection 2280a(a)(1)(D) 
prohibits injuring or killing a person in connection with the 
commission of certain offenses under section 2280a. Subsection 
2280a(a)(1)(E) prohibits attempts and conspiracies under the statute. 
The penalty for a violation of these subsections is a term of 
imprisonment for not more than 20 years. If the death of a person 
results, the penalty is imprisonment for any term of years or for life. 
Subsection 2280a(a)(2) prohibits threats to commit offenses under 
subsection 2280a(a)(1)(A), with a penalty of imprisonment of up to five 
years.
    The new offenses at section 2280a are referenced 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; 
Property Damage by Use of Explosives); 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).
    Second, the USA FREEDOM Act enacted 18 U.S.C. 2281a (Additional 
offenses against maritime fixed platforms). Subsection 2281a(a)(1) 
prohibits certain 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. The penalty for a violation of 
subsection 2281a(a)(1) is a term of imprisonment for not more than 20 
years. If the death of a person results, the penalty is imprisonment 
for any term of years or for life. Subsection 2281a(a)(2) prohibits 
threats to commit offenses under subsection 2281a(a)(1), and the 
penalty for a violation of subsection 2281a(a)(2) is imprisonment of up 
to five years.
    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.
    Third, the USA FREEDOM Act enacted 18 U.S.C. 2332i (Acts of nuclear 
terrorism). Section 2332i prohibits the possession or use of certain 
radioactive materials or devices with the intent to cause death or 
serious bodily injury or to cause substantial damage to property or the 
environment, as well as threats to commit any such acts. The penalty 
for a violation of section 2332i is imprisonment for any term of years 
or for life.
    The new offenses at 18 U.S.C. 2332i are referenced 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.
    The amendment also 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.
    The three new statutes provide a wide range of elements--meaning 
that the statutes can be violated in a large number of alternative 
ways. The Commission performed a section-by-section analysis of the 
elements of the new statutes and identified the Chapter Two offense 
guidelines that appear most analogous. As a result, the Commission 
determined that referencing the new statutes in Appendix A (Statutory 
Index) to a range of guidelines will allow the courts to select the 
most appropriate guideline in light of the nature of the conviction. 
For example, a reference to Sec.  2K1.4 (Arson; Property Damage by Use 
of Explosives) is provided to account for when the defendant is 
convicted under section 2280a(a)(1)(A)(i) for the use of an explosive 
device on a ship in a manner that causes or is likely to cause death or 
serious injury. See USSG App. A, Introduction (Where the statute is

[[Page 27281]]

referenced to more than one guideline section, the court is to ``use 
the guideline most appropriate for the offense conduct charged in the 
count of which the defendant was convicted.''). The Commission also 
found it persuasive that other similar statutes are referenced in 
Appendix A to a similar list of Chapter Two guidelines. Referencing 
these three new statutes in a manner consistent with the treatment of 
existing related statutes is reasonable to achieve parity, and will 
lead to consistent application of the guidelines.

Firearms As Nonmailable Items under 18 U.S.C. 1715

    Section 1715 of title 18 of the United States Code (Firearms as 
nonmailable; regulations) 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 the penalty for a violation of this 
statute is a term of imprisonment up to two years. Section 1715 is not 
referenced in Appendix A (Statutory Index). The amendment amends 
Appendix A 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). 
The amendment also amends Sec.  2K2.1 to provide a base offense level 
of 6 under Sec.  2K2.1(a)(8) for convictions under section 1715.
    The Commission received public comment suggesting that the lack of 
specific guidance for section 1715 offenses caused unwarranted 
sentencing disparity. Commission data provided further support for the 
need for an amendment to address this issue. Although the data 
indicated that courts routinely applied Sec.  2K2.1 to violations of 
section 1715, it also evidenced that courts were reaching different 
results in the base offense level applied. The Commission was persuaded 
by the data and public comment that an Appendix A reference and 
corresponding changes to Sec.  2K2.1 would reduce those unwarranted 
sentencing disparities. The Commission determined that Sec.  2K2.1 is 
the most analogous guideline for these types of firearms offenses. By 
providing an Appendix A reference for section 1715, the amendment 
ensures that Sec.  2K2.1 will be consistently applied to these 
offenses. Moreover, the Commission decided that the accompanying 
changes to Sec.  2K2.1 will eliminate the disparate application of the 
base offense levels in that guideline. The Commission selected the base 
offense level of 6 for these offenses because similar statutory 
provisions with similar penalties are referenced to Sec.  2K2.1(a)(8). 
The Commission concluded that referencing section 1715 will promote 
consistency in application and avoid unwarranted sentencing 
disparities.

Background Commentary to Sec.  2T1.6 (Failing to Collect or Truthfully 
Account for and Pay Over Tax)

    The Background Commentary in Sec.  2T1.6 (Failing to Collect or 
Truthfully Account for and Pay Over Tax) states that ``[t]he offense is 
a felony that is infrequently prosecuted.'' Section 2T1.6 applies to 
violations of 26 U.S.C. 7202 (Willful failure to collect or pay over 
tax) which requires employers to withhold from an employee's paychecks 
money representing the employee's personal income and Social Security 
taxes. 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. The amendment makes a clerical change to the 
Background Commentary to Sec.  2T1.6 to delete the statement that 
section 7202 offenses are infrequently prosecuted. The amendment makes 
additional clerical changes in the Introductory Commentary to Chapter 
Two, Part T, Subpart 2 (Alcohol and Tobacco Taxes), and the Background 
Commentary to Sec. Sec.  2T2.1 (Non-Payment of Taxes) and 2T2.2 
(Regulatory Offenses) which has similar language.
    The amendment reflects public comment received by the Commission 
that indicated while the statement in the Background Commentary to 
Sec.  2T1.6 may have been accurate when the commentary was originally 
written in 1987, the number of prosecutions under section 7202 have 
since increased. Additionally, the Commission decided that removing 
language characterizing the frequency of prosecutions for the tax 
offenses sentenced under Sec. Sec.  2T1.6, 2T2.1, and 2T2.2 will remove 
the perception that the Commission has taken a position regarding the 
relative frequency of prosecution of such offenses.

[FR Doc. 2016-10431 Filed 5-4-16; 8:45 am]
 BILLING CODE 2210-40-P