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
-----------------------------------------------------------------------
Sentencing Guidelines for United States Courts; Notice
Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 /
Notices
[[Page 27262]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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