Sentencing Guidelines for United States Courts, 92003-92021 [2016-30493]

Agencies

• United States Sentencing Commission

[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Notices]
[Pages 92003-92021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30493]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

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

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SUMMARY: The United States Sentencing Commission is considering 
promulgating certain amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice also sets forth a number of 
issues for comment, some of which are set forth together with the 
proposed amendments, and one of which (regarding retroactive 
application of proposed amendments) is set forth in the SUPPLEMENTARY 
INFORMATION portion of this notice.

DATES: (1) Written Public Comment.--Written public comment regarding 
the proposed amendments and issues for comment set forth in this 
notice, including public comment regarding retroactive application of 
any of the proposed amendments, should be received by the Commission 
not later than February 20, 2017. Written reply comments, which may 
only respond to issues raised in the original comment period, should be 
received by the Commission on March 10, 2017. Public comment regarding 
a proposed amendment received after the close of the comment period, 
and reply comment received on issues not raised in the original comment 
period, may not be considered.
    (2) Public Hearing.--The Commission may hold a public hearing 
regarding the proposed amendments and issues for comment set forth in 
this notice. Further information regarding any public hearing that may 
be scheduled, including requirements for testifying and providing 
written testimony, as well as the date, time, location, and scope of 
the hearing, will be provided by the Commission on its Web site at 
www.ussc.gov.

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

FOR FURTHER INFORMATION CONTACT: Christine Leonard, Director, Office of 
Legislative and Public Affairs, (202) 502-4500, pubaffairs@ussc.gov.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal courts pursuant to 28 U.S.C. 994(a). The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline 
amendments to the Congress not later than the first day of May each 
year pursuant to 28 U.S.C. 994(p).
    The proposed amendments in this notice are presented in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline, policy statement, or commentary. Bracketed 
text within a proposed amendment indicates a heightened interest on the 
Commission's part in comment and suggestions regarding alternative 
policy choices; for example, a proposed enhancement of [2][4][6] levels 
indicates that the Commission is considering, and invites comment on, 
alternative policy choices regarding the appropriate level of 
enhancement. Similarly, bracketed text within a specific offense 
characteristic or application note means that the Commission 
specifically invites comment on whether the proposed provision is 
appropriate. Second, the Commission has highlighted certain issues for 
comment and invites suggestions on how the Commission should respond to 
those issues.
    The proposed amendments and issues for comment in this notice are 
as follows:
    (1) A multi-part proposed amendment to Chapters Four (Criminal 
History and Criminal Livelihood) and Five (Determining the Sentence), 
including (A) setting forth options for a new Chapter Four guideline, 
at Sec.  4C1.1 (First Offenders), and amending Sec.  5C1.1 (Imposition 
of a Term of Imprisonment) to provide lower guideline ranges for 
``first offenders'' generally and increase the availability of 
alternatives to incarceration for such offenders at the lower levels of 
the Sentencing Table, and related issues for comment; and (B) revisions 
to Chapter Five to (i) amend the Sentencing Table in Chapter Five, Part 
A to expand Zone B by consolidating Zones B and C, (ii) amend the 
Commentary to Sec.  5F1.2 (Home Detention) to revise language requiring 
electronic monitoring, and (iii) related issues for comment.
    (2) a multi-part proposed amendment relating to the findings and 
recommendations contained in the May 2016 Report issued by the 
Commission's Tribal Issues Advisory Group, including (A) amending the 
Commentary to Sec.  4A1.3 (Departures Based on Inadequacy of Criminal 
History Category (Policy Statement)) to set forth a non-exhaustive list 
of factors for the court to consider in determining whether, or to what 
extent, an upward departure based on a tribal court conviction is 
appropriate, and related issues for comment; and (B) amending the 
Commentary to Sec.  1B1.1 (Application Instructions) to provide a 
definition of ``court protection order,'' and related issues for 
comment;
    (3) a proposed amendment to Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History) to revise how juvenile 
sentences are considered for purposes of calculating criminal

[[Page 92004]]

history points, and to the Commentary to Sec.  4A1.3 (Departures Based 
on Inadequacy of Criminal History Category (Policy Statement)) to 
account for cases in which a defendant had an adult conviction for an 
offense committed prior to age eighteen counted in the criminal history 
score that would have been classified as a juvenile adjudication (and 
therefore not counted) if the laws of the jurisdiction in which the 
defendant was convicted did not categorically consider offenders below 
the age of eighteen years as ``adults;'' and related issues for 
comment;
    (4) a multi-part proposed amendment to Chapter Four, Part A 
(Criminal History), including (A) amending Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History) to revise how revocations 
of probation, parole, supervised release, special parole, or mandatory 
release are considered for purposes of calculating criminal history 
points, and related issues for comment; and (B) amending the Commentary 
to Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)) to account for cases in which the period 
of imprisonment actually served by the defendant was substantially less 
than the length of the sentence imposed for a conviction counted in the 
criminal history score, and a related issue for comment;
    (5) a multi-part proposed amendment to respond to the Bipartisan 
Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015), including (A) 
revisions to Appendix A (Statutory Index), and a related issue for 
comment; and (B) amending Sec.  2B1.1 (Theft, Property Destruction, and 
Fraud) to address new increased penalties for certain persons who 
commit fraud offenses under certain Social Security programs, and 
related issues for comment;
    (6) a proposed amendment to the Commentary to Sec.  3E1.1 
(Acceptance of Responsibility) to revise how the defendant's challenge 
of relevant conduct should be considered in determining whether the 
defendant has accepted responsibility for purposes of the guideline, 
and a related issue for comment;
    (7) a multi-part proposed amendment to the Guidelines Manual to 
respond to recently enacted legislation and miscellaneous guideline 
issues, including (A) amending Sec.  2B5.3 (Criminal Infringement of 
Copyright or Trademark) to respond to changes made by the Transnational 
Drug Trafficking Act of 2015, Public Law 114-154 (May 16, 2016); (B) 
amending Sec.  2A3.5 (Failure to Register as a Sex Offender), Sec.  
2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender), 
and Appendix A (Statutory Index) to respond to changes made by the 
International Megan's Law to Prevent Child Exploitation and Other 
Sexual Crimes Through Advanced Notification of Traveling Sex Offenders 
Act, Public Law 114-119 (Feb. 8, 2016); (C) revisions to Appendix A 
(Statutory Index) to respond to a new offense established by the Frank 
R. Lautenberg Chemical Safety for the 21st Century Act, Public Law 114-
182 (June 22, 2016); and (D) a technical amendment to Sec.  2G1.3 
(Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a 
Minor; Transportation of Minors to Engage in a Commercial Sex Act or 
Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or 
Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; 
Use of Interstate Facilities to Transport Information about a Minor);
    (8) a proposed amendment to make technical changes to Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to replace the term ``marihuana equivalency'' used in the 
Drug Equivalency Tables when determining penalties for controlled 
substances;
    (9) a proposed amendment to make various technical changes to the 
Guidelines Manual, including (A) an explanatory note in Chapter One, 
Part A, Subpart 1(4)(b)(Departures) and clarifying changes to the 
Commentary to Sec.  2B1.1 (Theft, Property Destruction, and Fraud); (B) 
technical changes to Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History) and to the Commentary of other guidelines 
to correct title references to Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category (Policy Statement)); and (C) 
clerical changes to Sec.  2D1.11 (Unlawful Distributing, Importing, 
Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), 
Sec.  5D1.3 (Conditions of Supervised Release), Appendix A (Statutory 
Index), and to the Commentary of other guidelines;
    The Commission requests public comment regarding whether, pursuant 
to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any proposed amendment 
published in this notice should be included in subsection (d) of Sec.  
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range (Policy Statement)) as an amendment that may be applied 
retroactively to previously sentenced defendants. The Commission lists 
in Sec.  1B1.10(d) the specific guideline amendments that the court may 
apply retroactively under 18 U.S.C. 3582(c)(2). The background 
commentary to Sec.  1B1.10 lists the purpose of the amendment, the 
magnitude of the change in the guideline range made by the amendment, 
and the difficulty of applying the amendment retroactively to determine 
an amended guideline range under Sec.  1B1.10(b) as among the factors 
the Commission considers in selecting the amendments included in Sec.  
1B1.10(d). To the extent practicable, public comment should address 
each of these factors.
    Publication of a proposed amendment requires the affirmative vote 
of at least three voting members of the Commission and is deemed to be 
a request for public comment on the proposed amendment. See Rules 2.2 
and 4.4 of the Commission's Rules of Practice and Procedure. In 
contrast, the affirmative vote of at least four voting members is 
required to promulgate an amendment and submit it to Congress. See Rule 
2.2; 28 U.S.C. 994(p).
    Additional information pertaining to the proposed amendments and 
issues for comment described in this notice may be accessed through the 
Commission's Web site at www.ussc.gov.

    Authority:  28 U.S.C. 994(a), (o), (p), (x); USSC Rules of 
Practice and Procedure 4.3, 4.4.

Patti B. Saris,
Chair.

1. First Offenders/Alternatives to Incarceration

    Synopsis of Proposed Amendment: The proposed amendment contains two 
parts (Part A and Part B). The Commission is considering whether to 
promulgate either or both of these parts, as they are not necessarily 
mutually exclusive.

(A) First Offenders

    Part A of the proposed amendment is primarily informed by the 
Commission's multi-year study of recidivism, which included an 
examination of circumstances that correlate with increased or reduced 
recidivism. See United States Sentencing Commission, ``Notice of Final 
Priorities,'' 81 FR 58004 (Aug. 24, 2016). It is also informed by the 
Commission's continued study of approaches to encourage the use of 
alternatives to incarceration. Id.
    Under the Guidelines Manual, offenders with minimal or no criminal 
history are classified into Criminal History Category I. ``First 
offenders,'' offenders with no criminal history, are

[[Page 92005]]

addressed in the guidelines only by reference to Criminal History 
Category I. However, Criminal History Category I includes not only 
``first'' offenders but also offenders with varying criminal histories, 
such as offenders with no criminal history points and those with one 
criminal history point. Accordingly, the following offenders are 
classified in the same category: (1) First time offenders with no prior 
convictions; (2) offenders who have prior convictions that are not 
counted because they were not within the time limits set forth in Sec.  
4A1.2(d) and (e); (3) offenders who have prior convictions that are not 
used in computing the criminal history category for reasons other than 
their ``staleness'' (e.g., sentences resulting from foreign or tribal 
court convictions, minor misdemeanor convictions or infractions); and 
(4) offenders with a prior conviction that received only one criminal 
history point.
    Part A sets forth a new Chapter Four guideline, at Sec.  4C1.1 
(First Offenders), that would provide lower guideline ranges for 
``first offenders'' generally and increase the availability of 
alternatives to incarceration for such offenders at the lower levels of 
the Sentencing Table (compared to otherwise similar offenders in 
Criminal History Category I). Recidivism data analyzed by the 
Commission indicate that ``first offenders'' generally pose the lowest 
risk of recidivism. See, e.g., U.S. Sent. Comm'n, ``Recidivism Among 
Federal Offenders: A Comprehensive Overview,'' at 18 (2016), available 
at https://www.ussc.gov/research/research-publications/recidivism-among-federal-offenders-comprehensive-overview. In addition, 28 U.S.C. 994(j) 
directs that alternatives to incarceration are generally appropriate 
for first offenders not convicted of a violent or otherwise serious 
offense. The new Chapter Four Guideline, in conjunction with the 
revision to Sec.  5C1.1 (Imposition of a Term of Imprisonment) 
described below, would further implement the congressional directive at 
section 994(j).
    The new Chapter Four guideline would apply if [(1) the defendant 
did not receive any criminal history points under the rules contained 
in Chapter Four, Part A, and (2)] the defendant has no prior 
convictions of any kind. Part A of the proposed amendment sets forth 
two options for providing such an adjustment.
    Option 1 provides a decrease of [1] level from the offense level 
determined under Chapters Two and Three.
    Option 2 provides a decrease of [2] levels if the final offense 
level determined under Chapters Two and Three is less than level [16], 
or a decrease of [1] level if the offense level determined under 
Chapters Two and Three is level [16] or greater.
    Part A also amends Sec.  5C1.1 (Imposition of a Term of 
Imprisonment) to add a new subsection (g) that provides that if (1) the 
defendant is determined to be a first offender under Sec.  4C1.1 (First 
Offender), (2) [the instant offense of conviction is not a crime of 
violence][the defendant did not use violence or credible threats of 
violence or possess a firearm or other dangerous weapon in connection 
with the offense], and (3) the guideline range applicable to that 
defendant is in Zone A or Zone B of the Sentencing Table, the court 
ordinarily should impose a sentence other than a sentence of 
imprisonment in accordance with the other sentencing options.
    Finally, Part A of the proposed amendment also provides issues for 
comment.

(B) Consolidation of Zones B and C in the Sentencing Table

    Part B of the proposed amendment is a result of the Commission's 
continued study of approaches to encourage the use of alternatives to 
incarceration. See United States Sentencing Commission, ``Notice of 
Final Priorities,'' 81 FR 58004 (Aug. 24, 2016).
    The Guidelines Manual defines and allocates sentencing options in 
Chapter Five (Determining the Sentence). This chapter sets forth 
``zones'' in the Sentencing Table based on the minimum months of 
imprisonment in each cell. The Sentencing Table sorts all sentencing 
ranges into four zones, labeled A through D. Each zone allows for 
different sentencing options, as follows:
    Zone A.--All sentence ranges within Zone A, regardless of the 
underlying offense level or criminal history category, are zero to six 
months. A sentencing court has the discretion to impose a sentence that 
is a fine-only, probation-only, probation with a confinement condition 
(home detention, community confinement, or intermittent confinement), a 
split sentence (term of imprisonment with term of supervised release 
with condition of confinement), or imprisonment. Zone A allows for 
probation without any conditions of confinement.
    Zone B.--Sentence ranges in Zone B are from one to 15 months of 
imprisonment. Zone B allows for a probation term to be substituted for 
imprisonment, contingent upon the probation term including conditions 
of confinement. Zone B allows for non-prison sentences, which 
technically result in sentencing ranges larger than six months, because 
the minimum term of imprisonment is one month and the maximum terms 
begin at seven months. To avoid sentencing ranges exceeding six months, 
the guidelines require that probationary sentences in Zone B include 
conditions of confinement. Zone B also allows for a term of 
imprisonment (of at least one month) followed by a term of supervised 
release with a condition of confinement (i.e., a ``split sentence'') or 
a term of imprisonment only.
    Zone C.--Sentences in Zone C range from 10 to 18 months of 
imprisonment. Zone C allows for split sentences, which must include a 
term of imprisonment equivalent to at least half of the minimum of the 
applicable guideline range. The remaining half of the term requires 
supervised release with a condition of community confinement or home 
detention. Alternatively, the court has the option of imposing a term 
of imprisonment only.
    Zone D.--The final zone, Zone D, allows for imprisonment only, 
ranging from 15 months to life.
    Part B of the proposed amendment expands Zone B by consolidating 
Zones B and C. The expanded Zone B would include sentence ranges from 
one to 18 months and allow for the sentencing options described above. 
Although the proposed amendment would in fact delete Zone C by its 
consolidation with Zone B, Zone D would not be redesignated. Finally, 
Part B makes conforming changes to Sec. Sec.  5B1.1 (Imposition of a 
Term of Probation) and 5C1.1 (Imposition of a Term of Imprisonment).
    Part B also amends the Commentary to Sec.  5F1.2 (Home Detention) 
to remove the language instructing that (1) electronic monitoring 
``ordinarily should be used in connection with'' home detention; (2) 
alternative means of surveillance may be used ``so long as they are 
effective as electronic monitoring;'' and (3) ``surveillance necessary 
for effective use of home detention ordinarily requires'' electronic 
monitoring.
    Issues for comment are also provided.

(A) First Offenders

Proposed Amendment
    Chapter Four is amended by inserting at the end the following new 
Part C:

Part C--First Offender

Sec.  4C1.1. First Offender

    (a) A defendant is a first offender if [(1) the defendant did not 
receive any criminal history points from Chapter Four, Part A, and (2)] 
the defendant has no prior convictions of any kind.


[[Page 92006]]


[Option 1:
    (b) If the defendant is determined to be a first offender under 
subsection (a), decrease the offense level determined under Chapters 
Two and Three by [1] level.]

[Option 2:

    (b) If the defendant is determined to be a first offender under 
subsection (a), decrease the offense level as follows:
    (1) if the offense level determined under Chapters Two and Three is 
less than level [16], decrease by [2] levels; or
    (2) if the offense level determined under Chapters Two and Three is 
level [16] or greater, decrease by [1] level.]

Commentary

Application Note:

    1. Cases Involving Mandatory Minimum Penalties.--If the case 
involves a statutorily required minimum sentence of at least five years 
and the defendant meets the criteria set forth in subsection (a) of 
Sec.  5C1.2 (Limitation on Applicability of Statutory Minimum Sentences 
in Certain Cases), the offense level determined under this section 
shall be not less than level 17. See Sec.  5C1.2(b).''.
    Section 5C1.1 is amended by inserting at the end the following new 
subsection (g):
    ''(g) In cases in which (1) the defendant is determined to be a 
first offender under Sec.  4C1.1 (First Offender), (2) [the instant 
offense of conviction is not a crime of violence][the defendant did not 
use violence or credible threats of violence or possess a firearm or 
other dangerous weapon in connection with the offense], and (3) the 
guideline range applicable to that defendant is in Zone A or B of the 
Sentencing Table, the court ordinarily should impose a sentence other 
than a sentence of imprisonment in accordance with the other sentencing 
options set forth in this guideline.''.
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended by inserting at the end the following new Note 10:
    ``10. Application of Subsection (g).--
    (A) Sentence of Probation Prohibited.--The court may not impose a 
sentence of probation pursuant to this provision if prohibited by 
statute or where a term of imprisonment is required under this 
guideline. See Sec.  5B1.1 (Imposition of a Term of Probation).
    [(B) Definition of `Crime of Violence'.--For purposes of subsection 
(g), `crime of violence' has the meaning given that term in Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1).
    (C) Sentence of Imprisonment for First Offenders.--A sentence of 
imprisonment may be appropriate in cases in which the defendant used 
violence or credible threats of violence or possessed a firearm or 
other dangerous weapon in connection with the offense].''.
Issues for Comment
    1. The Commission seeks comment on ``first offenders,'' defined in 
the proposed amendment as defendants with no prior convictions of any 
kind. Should the Commission broaden the scope of the term ``first 
offender'' to include other defendants who did not receive criminal 
history points and, if so, how? For example, should the term ``first 
offender'' include defendants who have prior convictions that are not 
used in computing criminal history points under Chapter Four (e.g., 
sentences resulting from foreign or tribal court convictions, 
misdemeanors and petty offenses listed in Sec.  4A1.2(c))? Should the 
Commission instead limit the scope of the term? If so, how? Should the 
Commission provide additional or different guidance for determining 
whether a defendant is, or is not, a first offender?
    2. Part A of the proposed amendment sets forth a new Chapter Four 
guideline that would apply if [(1) the defendant did not receive any 
criminal history points under the rules contained in Chapter Four, Part 
A, and (2)] the defendant has no prior convictions of any kind. One of 
the options set forth for this new guideline, Option 1, would provide 
that if the defendant is determined to be a first offender (as defined 
in the new guideline) a decrease of [1] level from the offense level 
determined under Chapters Two and Three would apply. Should the 
Commission limit the applicability of the adjustment to defendants with 
an offense level determined under Chapters Two and Three that is less 
than a certain number of levels? For example, should the Commission 
provide that if the offense level determined under Chapters Two and 
Three is less than level [16], the offense level shall be decreased by 
[1] level? What other limitations or requirements, if any, should the 
Commission provide for such an adjustment?
    3. Part A of the proposed amendment would amend Sec.  5C1.1 
(Imposition of a Term of Imprisonment) to provide that if the defendant 
is determined to be a first offender under the new Sec.  4C1.1 (First 
Offender), [the defendant's instant offense of conviction is not a 
crime of violence][the defendant did not use violence or credible 
threats of violence or possess a firearm or other dangerous weapon in 
connection with the offense], and the guideline range applicable to 
that defendant is in Zone A or Zone B of the Sentencing Table, the 
court ordinarily should impose a sentence other than a sentence of 
imprisonment in accordance with the other sentencing options. Should 
the Commission further limit the application of such a rebuttable 
``presumption'' and exclude certain categories of non-violent offenses? 
If so, what offenses should be excluded from the presumption of a non-
incarceration sentence? For example, should the Commission exclude 
public corruption, tax, and other white-collar offenses?
    4. If the Commission were to promulgate Part A of the proposed 
amendment, what conforming changes, if any, should the Commission make 
to other provisions of the Guidelines Manual?

(B) Consolidation of Zones B and C in the Sentencing Table

Proposed Amendment
    Chapter Five, Part A is amended in the Sentencing Table by striking 
``Zone C''; by redesignating Zone B to contain all guideline ranges 
having a minimum of at least one month but not more than twelve months; 
and by inserting below ``Zone B'' the following: ``[Zone C Deleted]''.
    The Commentary to Chapter Five, Part A (Sentencing Table) is 
amended by inserting at the end the following:
    ``Background: The Sentencing Table previously provided four 
``zones,'' labeled A through D, based on the minimum months of 
imprisonment in each cell. The Commission expanded Zone B by 
consolidating former Zones B and C. Zone B in the Sentencing Table now 
contains all guideline ranges having a minimum term of imprisonment of 
at least one but not more than twelve months. Although Zone C was 
deleted by its consolidation with Zone B, the Commission decided not to 
redesignate Zone D as Zone C, to avoid unnecessary confusion that may 
result from different meanings of ``Zone C'' and ``Zone D'' through 
different editions of the Guidelines Manual.''.
    The Commentary to Sec.  5B1.1 captioned ``Application Notes'' is 
amended in Note 1(B), in the heading, by striking ``nine months'' and 
inserting ``twelve months''; and in Note 2 by striking ``Zone C or D'' 
and inserting ``Zone D'', and by striking ``ten months'' and inserting 
``fifteen months''.
    Section 5C1.1 is amended--

in subsection (c) by striking ``subsection (e)'' both places such term 
appears and inserting ``subsection (d)'';
by striking subsection (d) as follows:


[[Page 92007]]


    ``(d) If the applicable guideline range is in Zone C of the 
Sentencing Table, the minimum term may be satisfied by--
    (1) a sentence of imprisonment; or
    (2) a sentence of imprisonment that includes a term of supervised 
release with a condition that substitutes community confinement or home 
detention according to the schedule in subsection (e), provided that at 
least one-half of the minimum term is satisfied by imprisonment.'';

and by redesignating subsections (e) and (f) as subsections (d) and 
(e), respectively.
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended--

in Note 3 by striking ``nine months'' and inserting ``twelve months'';
by striking Note 4 as follows:

    ``4. Subsection (d) provides that where the applicable guideline 
range is in Zone C of the Sentencing Table (i.e., the minimum term 
specified in the applicable guideline range is ten or twelve months), 
the court has two options:
    (A) It may impose a sentence of imprisonment.
    (B) Or, it may impose a sentence of imprisonment that includes a 
term of supervised release with a condition requiring community 
confinement or home detention. In such case, at least one-half of the 
minimum term specified in the guideline range must be satisfied by 
imprisonment, and the remainder of the minimum term specified in the 
guideline range must be satisfied by community confinement or home 
detention. For example, where the guideline range is 10-16 months, a 
sentence of five months imprisonment followed by a term of supervised 
release with a condition requiring five months community confinement or 
home detention would satisfy the minimum term of imprisonment required 
by the guideline range.
    The preceding example illustrates a sentence that satisfies the 
minimum term of imprisonment required by the guideline range. The 
court, of course, may impose a sentence at a higher point within the 
guideline range. For example, where the guideline range is 10-16 
months, both a sentence of five months imprisonment followed by a term 
of supervised release with a condition requiring six months of 
community confinement or home detention (under subsection (d)), and a 
sentence of ten months imprisonment followed by a term of supervised 
release with a condition requiring four months of community confinement 
or home detention (also under subsection (d)) would be within the 
guideline range.'';

by striking Note 6 as follows:

    ``6. There may be cases in which a departure from the sentencing 
options authorized for Zone C of the Sentencing Table (under which at 
least half the minimum term must be satisfied by imprisonment) to the 
sentencing options authorized for Zone B of the Sentencing Table (under 
which all or most of the minimum term may be satisfied by intermittent 
confinement, community confinement, or home detention instead of 
imprisonment) is appropriate to accomplish a specific treatment 
purpose. Such a departure should be considered only in cases where the 
court finds that (A) the defendant is an abuser of narcotics, other 
controlled substances, or alcohol, or suffers from a significant mental 
illness, and (B) the defendant's criminality is related to the 
treatment problem to be addressed.
    In determining whether such a departure is appropriate, the court 
should consider, among other things, (1) the likelihood that completion 
of the treatment program will successfully address the treatment 
problem, thereby reducing the risk to the public from further crimes of 
the defendant, and (2) whether imposition of less imprisonment than 
required by Zone C will increase the risk to the public from further 
crimes of the defendant.
    Examples: The following examples both assume the applicable 
guideline range is 12-18 months and the court departs in accordance 
with this application note. Under Zone C rules, the defendant must be 
sentenced to at least six months imprisonment. (1) The defendant is a 
nonviolent drug offender in Criminal History Category I and probation 
is not prohibited by statute. The court departs downward to impose a 
sentence of probation, with twelve months of intermittent confinement, 
community confinement, or home detention and participation in a 
substance abuse treatment program as conditions of probation. (2) The 
defendant is convicted of a Class A or B felony, so probation is 
prohibited by statute (see Sec.  5B1.1(b)). The court departs downward 
to impose a sentence of one month imprisonment, with eleven months in 
community confinement or home detention and participation in a 
substance abuse treatment program as conditions of supervised 
release.'';

by redesignating Notes 5, 7, 8, and 9 as Notes 4, 5, 6, and 7, 
respectively;
in Note 4 (as so redesignated) by striking ``Subsection (e)'' and 
inserting ``Subsection (d)'';
in Note 5 (as so redesignated) by striking ``subsections (c) and (d)'' 
and inserting ``subsection (c)'';
and in Note 7 (as so redesignated) by striking ``Subsection (f)'' and 
inserting ``Subsection (e)'', and by striking ``subsection (e)'' and 
inserting ``subsection (d)''.

    The Commentary to Sec.  5F1.2 captioned ``Application Notes'' is 
amended in Note 1 [by striking ``Electronic monitoring is an 
appropriate means of surveillance and ordinarily should be used in 
connection with home detention'' and inserting ``Electronic monitoring 
is an appropriate means of surveillance for home detention''; and] by 
striking ``may be used so long as they are as effective as electronic 
monitoring'' and inserting ``may be used if appropriate''.
    The Commentary to Sec.  5F1.2 captioned ``Background'' is amended 
by striking ``The Commission has concluded that the surveillance 
necessary for effective use of home detention ordinarily requires 
electronic monitoring'' and inserting ``The Commission has concluded 
that electronic monitoring is an appropriate means of surveillance for 
home detention''; and by striking ``the court should be confident that 
an alternative form of surveillance will be equally effective'' and 
inserting ``the court should be confident that an alternative form of 
surveillance is appropriate considering the facts and circumstances of 
the defendant's case''.
Issues for Comment
    1. The Commission requests comment on whether the zone changes 
contemplated by Part B of the proposed amendment should apply to all 
offenses, or only to certain categories of offenses. The zone changes 
would increase the number of offenders who are eligible under the 
guidelines to receive a non-incarceration sentence. Should the 
Commission provide a mechanism to exempt certain offenses from these 
zone changes? For example, should the Commission provide a mechanism to 
exempt public corruption, tax, and other white-collar offenses from 
these zone changes (e.g., to reflect a view that it would not be 
appropriate to increase the number of public corruption, tax, and other 
white-collar offenders who are eligible to receive a non-incarceration 
sentence)? If so, what mechanism should the Commission provide, and 
what offenses should be covered by it?
    2. The proposed amendment would consolidate Zones B and C to create 
an expanded Zone B. Such an adjustment would provide probation with 
conditions of confinement as a sentencing option for current Zone C

[[Page 92008]]

defendants, an option that was not available to such defendants before. 
The Commission seeks comment on whether the Commission should provide 
additional guidance to address these new Zone B defendants. If so, what 
guidance should the Commission provide?

2. Tribal Issues

    Synopsis of Proposed Amendment: In August 2016, the Commission 
indicated that one of its priorities would be the ``[s]tudy of the 
findings and recommendations contained in the May 2016 Report issued by 
the Commission's Tribal Issues Advisory Group, and consideration of any 
amendments to the Guidelines Manual that may be appropriate in light of 
the information obtained from such study.'' See United States 
Sentencing Commission, ``Notice of Final Priorities,'' 81 FR 58004 
(Aug. 24, 2016). See also Report of the Tribal Issues Advisory Group 
(May 16, 2016), at https://www.ussc.gov/research/research-publications/report-tribal-issues-advisory-group. The Commission is publishing this 
proposed amendment to inform the Commission's consideration of the 
issues related to this policy priority.
    In 2015, the Commission established the Tribal Issues Advisory 
Group (TIAG) as an ad hoc advisory group to the Commission. Among other 
things, the Commission tasked the TIAG with studying the following 
issues--
    (A) the operation of the federal sentencing guidelines as they 
relate to American Indian defendants and victims and to offenses 
committed in Indian Country, and any viable methods for revising the 
guidelines to (i) improve their operation or (ii) address particular 
concerns of tribal communities and courts;
    (B) whether there are disparities in the application of the federal 
sentencing guidelines to American Indian defendants, and, if so, how to 
address them;
    (C) the impact of the federal sentencing guidelines on offenses 
committed in Indian Country in comparison with analogous offenses 
prosecuted in state courts and tribal courts;
    (D) the use of tribal court convictions in the computation of 
criminal history scores, risk assessment, and for other purposes;
    (E) how the federal sentencing guidelines should account for 
protection orders issued by tribal courts; and
    (F) any other issues relating to American Indian defendants and 
victims, or to offenses committed in Indian Country, that the TIAG 
considers appropriate. See Tribal Issues Advisory Group Charter Sec.  
1(b)(3).
    The Commission also directed the TIAG to present a final report 
with its findings and recommendations, including any recommendations 
that the TIAG considered appropriate on potential amendments to the 
guidelines and policy statements. See id. Sec.  6(a). On May 16, 2016, 
the TIAG presented to the Commission its final report. Among the 
recommendations suggested in the Report, the TIAG recommends revisions 
to the Guidelines Manual relating to ``the use of tribal court 
convictions in the computation of criminal history scores'' and ``how 
the federal sentencing guidelines should account for protection orders 
issued by tribal courts.''
    The Commission is publishing this proposed amendment to inform the 
Commission's consideration of these issues. The proposed amendment 
contains two parts. The Commission is considering whether to promulgate 
one or both of these parts, as they are not necessarily mutually 
exclusive.

(A) Tribal Court Convictions

    Pursuant to Chapter Four, Part A (Criminal History), sentences 
resulting from tribal court convictions are not counted for purposes of 
calculating criminal history points, but may be considered under Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category 
(Policy Statement)). See USSG Sec.  4A1.2(i). The policy statement at 
Sec.  4A1.3 allows for upward departures if reliable information 
indicates that the defendant's criminal history category substantially 
underrepresents the seriousness of the defendant's criminal history. 
Among the grounds for departure, the policy statement includes 
``[p]rior sentences not used in computing the criminal history category 
(e.g., sentences for foreign and tribal offenses).'' USSG Sec.  
4A1.3(a)(2)(A).
    As noted in the TIAG's report, in recent years there have been 
important changes in tribal criminal jurisdiction. In 2010, Congress 
enacted the Tribal Law and Order Act of 2010 (TLOA), Pub. L. 111-211, 
to address high rates of violent crime in Indian Country by improving 
criminal justice funding and infrastructure in tribal government, and 
expanding the sentencing authority of tribal court systems. In 2013, 
the Violence Against Women Reauthorization Act of 2013 (VAWA 
Reauthorization), Pub. L. 113-4, was enacted to expand the criminal 
jurisdiction of tribes to prosecute, sentence, and convict Indians and 
non-Indians who assault Indian spouses or dating partners or violate a 
protection order in Indian Country. It also established new assault 
offenses and enhanced existing assault offenses. Both Acts increased 
criminal jurisdiction for tribal courts, but also required more robust 
court procedures and provided more procedural protections for 
defendants.
    The TIAG notes in its report that ``[w]hile some tribes have 
exercised expanded jurisdiction under TLOA and the VAWA 
Reauthorization, most have not done so. Given the lack of tribal 
resources, and the absence of significant additional funding under TLOA 
and the VAWA Reauthorization to date, it is not certain that more 
tribes will be able to do so any time soon.'' TIAG Report, at 10-11. 
Members of the TIAG describe their experience with tribal courts as 
``widely varied,'' expressing among their findings certain concerns 
about funding, perceptions of judicial bias or political influence, due 
process protections, and access to tribal court records. Id. at 11-12.
    The TIAG report highlights that ``[t]ribal courts occupy a unique 
and valuable place in the criminal justice system,'' while also 
recognizing that ``[t]ribal courts range in style''. Id. at 13. 
According to the TIAG, the differences in style and the concerns 
expressed above ``make it often difficult for a federal court to 
determine how to weigh tribal court convictions in rendering a 
sentencing decision.'' Id. at 11. It also asserts that ``taking a 
single approach to the consideration of tribal court convictions would 
be very difficult and could potentially lead to a disparate result 
among Indian defendants in federal courts.'' Id. at 12. Thus, the TIAG 
concludes that tribal convictions should not be counted for purposes of 
determining criminal history points pursuant to Chapter Four, Part A, 
and that ``the current use of USSG Sec.  4A1.3 to depart upward in 
individual cases continues to allow the best formulation of `sufficient 
but not greater than necessary' sentences for defendants, while not 
increasing sentencing disparities or introducing due process 
concerns.'' Id. Nevertheless, the TIAG recommends that the Commission 
amend Sec.  4A1.3 to provide guidance and a more structured analytical 
framework for courts to consider when determining whether a departure 
is appropriate based on a defendant's record of tribal court 
convictions. The guidance recommended by the TIAG ``collectively . . . 
reflect[s] important considerations for courts to balance the rights of 
defendants, the unique and important status of tribal courts, the need 
to avoid disparate sentences in light of disparate tribal court 
practices and circumstances,

[[Page 92009]]

and the goal of accurately assessing the severity of any individual 
defendant's criminal history.'' Id. at 13.
    The proposed amendment would amend the Commentary to Sec.  4A1.3 to 
set forth a non-exhaustive list of factors for the court to consider in 
determining whether, or to what extent, an upward departure based on a 
tribal court conviction is appropriate.
    Issues for comment are also provided.

(B) Court Protection Orders

    Under the Guidelines Manual, the violation of a court protection 
order is a specific offense characteristic in three Chapter Two offense 
guidelines. See USSG Sec. Sec.  2A2.2 (Aggravated Assault), 2A6.1 
(Threatening or Harassing Communications; Hoaxes; False Liens), and 
2A6.2 (Stalking or Domestic Violence). The Commission has heard 
concerns that the term ``court protection order'' has not been defined 
in the guidelines and should be clarified.
    The TIAG notes in its report the importance of defining ``court 
protection orders'' in the guidelines, because--

[a] clear definition of that term will ensure that orders used for 
sentencing enhancements are the result of court proceedings assuring 
appropriate due process protections, that there is consistent 
identification and treatment of such orders, and that such orders 
issued by tribal courts receive treatment consistent with that of 
other issuing jurisdictions. TIAG Report, at 14.

    The TIAG recommends that the Commission adopt a definition of 
``court protection order'' that incorporates the statutory provisions 
at 18 U.S.C. 2265 and 2266. Section 2266(5) provides that the term 
``protection order'' includes:

    (A) any injunction, restraining order, or any other order issued 
by a civil or criminal court for the purpose of preventing violent 
or threatening acts or harassment against, sexual violence, or 
contact or communication with or physical proximity to, another 
person, including any temporary or final order issued by a civil or 
criminal court whether obtained by filing an independent action or 
as a pendente lite order in another proceeding so long as any civil 
or criminal order was issued in response to a complaint, petition, 
or motion filed by or on behalf of a person seeking protection; and
    (B) any support, child custody or visitation provisions, orders, 
remedies or relief issued as part of a protection order, restraining 
order, or injunction pursuant to State, tribal, territorial, or 
local law authorizing the issuance of protection orders, restraining 
orders, or injunctions for the protection of victims of domestic 
violence, sexual assault, dating violence, or stalking. 18 U.S.C. 
2266(5).

    Section 2265(b) provides that

    A protection order issued by a State, tribal, or territorial 
court is consistent with this subsection if--
    (1) such court has jurisdiction over the parties and matter 
under the law of such State, Indian tribe, or territory; and
    (2) reasonable notice and opportunity to be heard is given to 
the person against whom the order is sought sufficient to protect 
that person's right to due process. In the case of ex parte orders, 
notice and opportunity to be heard must be provided within the time 
required by State, tribal, or territorial law, and in any event 
within a reasonable time after the order is issued, sufficient to 
protect the respondent's due process rights. 18 U.S.C. 2265(b).

    The proposed amendment would amend the Commentary to Sec.  1B1.1 
(Application Instructions) to provide a definition of court protection 
order derived from 18 U.S.C. 2266(5), with a provision that it must be 
consistent with 18 U.S.C. 2265(b).
    Issues for comment are also provided.

(A) Tribal Court Convictions

Proposed Amendment
    Section 4A1.3(a)(2) is amended by striking ``subsection (a)'' and 
inserting ``subsection (a)(1)''; and by striking ``tribal offenses'' 
and inserting ``tribal convictions''.
    The Commentary to Sec.  4A1.3 captioned ``Application Notes'' is 
amended in Note 2 by inserting at the end the following new paragraph 
(C):
    ``(C) Upward Departures Based on Tribal Court Convictions.--In 
determining whether, or to what extent, an upward departure based on a 
tribal court conviction is appropriate, the court shall consider the 
factors set forth in Sec.  4A1.3(a) above and, in addition, may 
consider relevant factors such as the following:
    (i) The defendant was represented by a lawyer, had the right to a 
trial by jury, and received other due process protections consistent 
with those provided to criminal defendants under the United States 
Constitution.
    (ii) The tribe was exercising expanded jurisdiction under the 
Tribal Law and Order Act of 2010, Pub. L. 111-211 (July 29, 2010), and 
the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4 
(March 7, 2013).
    (iii) The tribal court conviction is not based on the same conduct 
that formed the basis for a conviction from another jurisdiction that 
receives criminal history points pursuant to this Chapter.
    (iv) The conviction is for an offense that otherwise would be 
counted under Sec.  4A1.2 (Definitions and Instructions for Computing 
Criminal History).
    [(v) At the time the defendant was sentenced, the tribal government 
had formally expressed a desire that convictions from its courts should 
be counted for purposes of computing criminal history pursuant to the 
Guidelines Manual.]''.
Issues for Comment
    1. The proposed amendment would provide a list of relevant factors 
that courts may consider, in addition to the factors set forth in Sec.  
4A1.3(a), in determining whether an upward departure based on a tribal 
court conviction may be warranted. The Commission seeks comment on 
whether the factors provided in the proposed amendment are appropriate. 
Should any factors be deleted or changed? Should the Commission provide 
additional or different guidance? If so, what guidance should the 
Commission provide?
    In particular, the Commission seeks comment on how these factors 
should interact with each other and with the factors already contained 
in Sec.  4A1.3(a). Should the Commission provide greater emphasis on 
one or more factors set forth in the proposed amendment? For example, 
how much weight should be given to factors that address due process 
concerns (subdivisions (i) and (ii)) in relation to the other factors 
provided in the proposed amendment, such as those factors relevant to 
preventing unwarranted double counting (subdivisions (iii) and (iv))? 
Should the Commission provide that in order to consider whether an 
upward departure based on a tribal court conviction is appropriate, and 
before taking into account any other factor, the court must first 
determine as a threshold factor that the defendant received due process 
protections consistent with those provided to criminal defendants under 
the United States Constitution?
    Finally, the proposed amendment brackets the possibility of 
including as a factor that courts may consider in deciding whether to 
depart based on a tribal court conviction if, ``at the time the 
defendant was sentenced, the tribal government had formally expressed a 
desire that convictions from its courts should be counted for purposes 
of computing criminal history pursuant to the Guidelines Manual.'' The 
Commission invites broad comment on this factor and its interaction 
with the other factors set forth in the proposed amendment. Is this 
factor relevant to the court's determination of whether to depart? What 
are the advantages and disadvantages of including such a factor? How 
much weight should be given to this factor in relation to the other 
factors provided in the proposed amendment? What criteria should be 
used in determining when a tribal government has ``formally expressed a

[[Page 92010]]

desire'' that convictions from its courts should count? How would 
tribal governments notify and make available such statements?
    2. Pursuant to subsection (i) of Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History), sentences resulting from 
tribal court convictions are not counted for purposes of calculating 
criminal history points, but may be considered under Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category (Policy 
Statement)). As stated above, the policy statement at Sec.  4A1.3 
allows for upward departures if reliable information indicates that the 
defendant's criminal history category substantially underrepresents the 
seriousness of the defendant's criminal history.
    The Commission invites comment on whether the Commission should 
consider changing how the guidelines account for sentences resulting 
from tribal court convictions for purposes of determining criminal 
history points pursuant to Chapter Four, Part A (Criminal History). 
Should the Commission consider amending Sec.  4A1.2(i) and, if so, how? 
For example, should the guidelines treat sentences resulting from 
tribal court convictions like other sentences imposed for federal, 
state, and local offenses that may be used to compute criminal history 
points? Should the Commission treat sentences resulting from tribal 
court convictions more akin to military sentences and provide a 
distinction between certain types of tribal courts? Is there a 
different approach the Commission should follow in addressing the use 
of tribal court convictions in the computation of criminal history 
scores?
(B) Court Protection Orders
Proposed Amendment
    The Commentary to Sec.  1B1.1 captioned ``Application Notes'' is 
amended in Note 1 by redesignating paragraphs (D) through (L) as 
paragraphs (E) through (M), respectively; and by inserting the 
following new paragraph (D):
    ``(D) `court protection order' means `protection order' as defined 
by 18 U.S.C. 2266(5) and consistent with 18 U.S.C. 2265(b).''.
Issues for Comment
    1. The proposed amendment would include in the Commentary to Sec.  
1B1.1 (Application Instructions) a definition of court protection order 
derived from 18 U.S.C. 2266(5), that is consistent with 18 U.S.C. 
2265(b). Is this definition appropriate? If not, what definition, if 
any, should the Commission provide?
    2. The Commission has heard concerns about cases in which the 
offense involved the violation of a court protection order. As stated 
above, the violation of a court protection order is a specific offense 
characteristic in three Chapter Two offense guidelines (see Sec. Sec.  
2A2.2, 2A6.1, and 2A6.2). However, other guidelines in which the 
offense might involve a violation of a court protection order do not 
provide for such an enhancement.
    The Commission seeks comment on whether the Guidelines Manual 
should provide higher penalties for cases involving the violation of a 
court protection order. How, if at all, should the Commission amend the 
guidelines to provide appropriate penalties in such cases?
    For example, should the Commission address this factor throughout 
the guidelines by establishing a Chapter Three adjustment if the 
offense involved the violation of a court protection order? If so, how 
should this provision interact with other provisions in the Guidelines 
Manual that may involve the violation of an order, such as Sec.  
2B1.1(b)(9)(C) (``If the offense involved . . . (C) a violation of any 
prior specific judicial or administrative order, injunction, decree, or 
process not addressed elsewhere in the guidelines . . . increase by 2 
levels.''), Sec.  2J1.1 (Contempt), and Sec.  3C1.1 (Obstructing or 
Impeding the Administration of Justice)?
    Alternatively, should the Commission identify and amend particular 
offense guidelines in Chapter Two to include the violation of a court 
protection order as a specific offense characteristic? If so, which 
guidelines should be amended to include such a new specific offense 
characteristic? For example, should the Commission include such a new 
specific offense characteristic in the guidelines related to offenses 
against the person, sexual offenses, and offenses that create a risk of 
injury? Should the Commission include such a new specific offense 
characteristic in offenses that caused a financial harm, such as 
identity theft?

3. Youthful Offenders

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's study of the treatment of youthful offenders under 
the Guidelines Manual. See United States Sentencing Commission, 
``Notice of Final Priorities,'' 81 FR 5280004 (Aug. 24, 2016). This 
policy priority stemmed from recommendations about the treatment of 
youthful offenders contained in the May 2016 Report issued by the 
Commission's Tribal Issues Advisory Group. See Report of the Tribal 
Issues Advisory Group (May 16, 2016), at https://www.ussc.gov/research/research-publications/report-tribal-issues-advisory-group.
    Pursuant to Chapter Four, Part A (Criminal History), sentences for 
offenses committed prior to age eighteen are considered in the 
calculation of the defendant's criminal history score. The guidelines 
distinguish between an ``adult sentence'' in which the defendant 
committed the offense before age eighteen and was convicted as an 
adult, and a ``juvenile sentence'' resulting from a juvenile 
adjudication.
    Under Sec.  4A1.2 (Definitions and Instructions for Computing 
Criminal History), if the defendant was convicted as an adult for an 
offense committed before age eighteen and received a sentence exceeding 
one year and one month, the sentence is counted so long as it was 
imposed, or resulted in the defendant being incarcerated, within 
fifteen years of the defendant's commencement of the instant offense. 
See USSG Sec.  4A1.2(d), (e). All other sentences for offenses 
committed prior to age eighteen are counted only if the sentence was 
imposed, or resulted in the defendant being incarcerated, within five 
years of the defendant's commencement of the instant offense. See USSG 
Sec.  4A1.2(d). The Commentary to Sec.  4A1.2 provides that, to avoid 
disparities from jurisdiction to jurisdiction in the age at which a 
defendant is considered a ``juvenile,'' the rules set forth in Sec.  
4A1.2(d) apply to all offenses committed prior to age eighteen.
    Juvenile adjudications are addressed in two other places in the 
guidelines. First, Sec.  4A1.2(c)(2) provides a list of certain 
offenses that are ``never counted'' for purposes of the criminal 
history score, including ``juvenile status offenses and truancy.'' 
Second, Sec.  4A1.2(f) provides that adult diversionary dispositions 
resulting from a finding or guilt, or a nolo contendere, are counted 
even if a conviction is not formally entered. However, the same 
provision further provides that ``diversion from juvenile court is not 
counted.''
    The proposed amendment amends Sec.  4A1.2(d) to exclude juvenile 
sentences from being considered in the calculation of the defendant's 
criminal history score. The proposed amendment also amends the 
Commentary to Sec.  4A1.3 (Departures Based on Inadequacy of Criminal 
History Category (Policy Statement)) to provide an example of an 
instance in which a downward departure from the defendant's criminal 
history may be warranted. Specifically, the proposed amendment provides 
that

[[Page 92011]]

a downward departure may be warranted if the defendant had an adult 
conviction for an offense committed prior to age eighteen counted in 
the criminal history score that would have been classified as a 
juvenile adjudication (and therefore not counted) if the laws of the 
jurisdiction in which the defendant was convicted did not categorically 
consider offenders below the age of eighteen years as ``adults.''
    Issues for comment are provided.

Proposed Amendment

    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``An adult or juvenile sentence'' and 
inserting ``An adult sentence''; and in Note 3 by striking ``An adult 
or juvenile sentence'' and inserting ``An adult sentence''.
    Section 4A1.2 is amended--
    [in subsection (c)(2) by striking ``Juvenile status offenses and 
truancy'';]
    in subsection (d) by striking ``or juvenile'' both places such term 
appears in paragraph (2), and by inserting at the end the following new 
paragraph (3):
    ''(3) Sentences resulting from juvenile adjudications are not 
counted.'';
    [and in subsection (f) by striking: ``, except that diversion from 
juvenile court is not counted''].
    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended in Note 7 by striking the following:
    ``Section 4A1.2(d) covers offenses committed prior to age eighteen. 
Attempting to count every juvenile adjudication would have the 
potential for creating large disparities due to the differential 
availability of records. Therefore, for offenses committed prior to age 
eighteen, only those that resulted in adult sentences of imprisonment 
exceeding one year and one month, or resulted in imposition of an adult 
or juvenile sentence or release from confinement on that sentence 
within five years of the defendant's commencement of the instant 
offense are counted. To avoid disparities from jurisdiction to 
jurisdiction in the age at which a defendant is considered a 
`juvenile,' this provision applies to all offenses committed prior to 
age eighteen.'',
and inserting the following:

    ``Section 4A1.2(d) applies only when the defendant was convicted as 
an adult for an offense committed prior to age eighteen. This provision 
also sets forth the time period within which such prior adult sentences 
are counted.''.
    The Commentary to Sec.  4A1.3 captioned ``Application Notes'' is 
amended in Note 3 by striking the following:
    '' Downward Departures.--A downward departure from the defendant's 
criminal history category may be warranted if, for example, the 
defendant had two minor misdemeanor convictions close to ten years 
prior to the instant offense and no other evidence of prior criminal 
behavior in the intervening period. A departure below the lower limit 
of the applicable guideline range for Criminal History Category I is 
prohibited under subsection (b)(2)(B), due to the fact that the lower 
limit of the guideline range for Criminal History Category I is set for 
a first offender with the lowest risk of recidivism.'',

and inserting the following:

    '' Downward Departures.--
    (A) Examples.--A downward departure from the defendant's criminal 
history category may be warranted based on any of the following 
circumstances:
    (i) The defendant had two minor misdemeanor convictions close to 
ten years prior to the instant offense and no other evidence of prior 
criminal behavior in the intervening period.
    (ii) The defendant had an adult conviction for an offense committed 
prior to age eighteen counted in the criminal history score that would 
have been classified as a juvenile adjudication (and therefore not 
counted) if the laws of the jurisdiction in which the defendant was 
convicted did not categorically consider offenders below the age of 
eighteen years as `adults.'
    (B) Downward Departures from Criminal History Category I.--A 
departure below the lower limit of the applicable guideline range for 
Criminal History Category I is prohibited under subsection (b)(2)(A), 
due to the fact that the lower limit of the guideline range for 
Criminal History Category I is set for a first offender with the lowest 
risk of recidivism.''.

Issues for Comment

    1. The Commission seeks comment on whether the Commission should 
consider changing how the guidelines account for juvenile sentences for 
purposes of determining the defendant's criminal history pursuant to 
Chapter Four, Part A (Criminal History). Should the Commission amend 
the guidelines to provide that sentences resulting from juvenile 
adjudications shall not be counted in the criminal history score? 
Alternatively, should the Commission amend the guidelines to count 
juvenile sentences only if the offense involved violence or was an 
otherwise serious offense? Should the Commission provide instead that 
sentences for offenses committed prior to age eighteen are not to be 
counted in the criminal history score, regardless of whether the 
sentence was classified as a ``juvenile'' or ``adult'' sentence?
    2. If the Commission were to promulgate the proposed amendment, 
should the Commission provide that juvenile sentences may be considered 
for purposes of an upward departure under Sec.  4A1.3 (Departures Based 
on Inadequacy of Criminal History Category (Policy Statement))? If so, 
should the Commission limit the consideration of such departures to 
certain offenses? For example, should the Commission provide that an 
upward departure under Sec.  4A1.3 may be warranted if the juvenile 
sentence was imposed for an offense involving violence or that was an 
otherwise serious offense?
    3. The proposed amendment would provide that a departure may be 
warranted in cases in which the defendant had an adult conviction for 
an offense committed prior to age eighteen counted in the criminal 
history score that would have been classified as a juvenile 
adjudication (and therefore not counted) if the laws of the 
jurisdiction in which the defendant was convicted did not categorically 
consider offenders below the age of eighteen years as ``adults.'' 
Should the Commission provide that a downward departure may be 
warranted for such cases? How would courts determine that the defendant 
would have received a juvenile adjudication if the laws of the 
jurisdiction in which the defendant was convicted did not categorically 
consider offenders below the age of eighteen years as ``adults''? 
Should the Commission provide specific examples or guidance for 
determining whether a downward departure is warranted in such cases? If 
so, what guidance or examples should the Commission provide? Should the 
Commission use a different approach to address these cases and, if so, 
what should that approach be? Are there other circumstances that the 
Commission should identify as an appropriate basis for a downward 
departure?

4. Criminal History Issues

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's work in examining Chapter Four, Part A (Criminal 
History) ``to (A) study the treatment of revocation sentences under 
Sec.  4A1.2(k), and (B) consider a possible amendment of Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category (Policy 
Statement)) to account for instances in which the time actually served 
was substantially less than the length of the sentence imposed for a

[[Page 92012]]

conviction counted under the Guidelines Manual.'' See United States 
Sentencing Commission, ``Notice of Final Priorities,'' 81 FR 58004 
(Aug. 24, 2016).

(A) Treatment of Revocation Sentences Under Sec.  4A1.2(k)

    Pursuant to Chapter Four, Part A (Criminal History), revocations of 
probation, parole, supervised release, special parole, or mandatory 
release are counted for purposes of calculating criminal history 
points. Section 4A1.2(k) provides that a sentence of imprisonment given 
upon revocation should be added to the original sentence of 
imprisonment, if any, and the total should be counted as if it were one 
sentence for purposes of computing criminal history points under Sec.  
4A1.1(a), (b), or (c). The Commentary to Sec.  4A1.2 provides that 
where a revocation applies to multiple sentences, and such sentences 
are counted separately under Sec.  4A1.2(a)(2), the term of 
imprisonment imposed upon revocation is added to the sentence that will 
result in the greatest increase in criminal history points. See USSG 
Sec.  4A1.2, comment. (n.11).
    Section 4A1.2(k)(2) further provides that aggregating the 
revocation sentence to the original sentence of imprisonment may affect 
the time period under which certain sentences are counted under Chapter 
Four. See USSG Sec.  4A1.2(d)(2) and (e). The resulting total of adding 
both sentences could affect the applicable time period by increasing 
the length of a defendant's term of imprisonment or by changing the 
defendant's date of release from imprisonment.
    Part A of the proposed amendment would amend Sec.  4A1.2(k) to 
provide that revocations of probation, parole, supervised release, 
special parole, or mandatory release are not to be counted for purposes 
of calculating criminal history points. It would also state that such 
revocation sentences may be considered under Sec.  4A1.3 (Departures 
Based on Inadequacy of Criminal History Category (Policy Statement)).
    Issues for comment are also provided.

(B) Departure Based on Substantial Difference Between Time-Served and 
Sentence Imposed

    Section 4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)) provides for upward and downward 
departures where the defendant's criminal history category 
substantially understates or substantially overstates the seriousness 
of the defendant's criminal history or the likelihood of recidivism. 
The Commentary to Sec.  4A1.3 provides guidance in determining when a 
downward departure from the defendant's criminal history may be 
warranted.
    Part B of the proposed amendment would amend the Commentary to 
Sec.  4A1.3 to provide that a downward departure from the defendant's 
criminal history may warranted in a case in which the period of 
imprisonment actually served by the defendant was substantially less 
than the length of the sentence imposed for a conviction counted in the 
criminal history score.
    An issue for comment is also provided.

(A) Treatment of Revocation Sentences Under Sec.  4A1.2(k)

Proposed Amendment
    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Where a prior sentence of imprisonment 
resulted from a revocation of probation, parole, or a similar form of 
release, see Sec.  4A1.2(k).''; and in Note 2 by striking ``Where a 
prior sentence of imprisonment resulted from a revocation of probation, 
parole, or a similar form of release, see Sec.  4A1.2(k).''.
    Section 4A1.2(k) is amended by striking paragraphs (1) and (2) as 
follows:
    `` (1) In the case of a prior revocation of probation, parole, 
supervised release, special parole, or mandatory release, add the 
original term of imprisonment to any term of imprisonment imposed upon 
revocation. The resulting total is used to compute the criminal history 
points for Sec.  4A1.1(a), (b), or (c), as applicable.
    (2) Revocation of probation, parole, supervised release, special 
parole, or mandatory release may affect the time period under which 
certain sentences are counted as provided in Sec.  4A1.2(d)(2) and (e). 
For the purposes of determining the applicable time period, use the 
following: (A) in the case of an adult term of imprisonment totaling 
more than one year and one month, the date of last release from 
incarceration on such sentence (see Sec.  4A1.2(e)(1)); (B) in the case 
of any other confinement sentence for an offense committed prior to the 
defendant's eighteenth birthday, the date of the defendant's last 
release from confinement on such sentence (see Sec.  4A1.2(d)(2)(A)); 
and (C) in any other case, the date of the original sentence (see Sec.  
4A1.2(d)(2)(B) and (e)(2)).'',

and inserting the following:

    `` Sentences upon revocation of probation, parole, supervised 
release, special parole, or mandatory release are not counted, but may 
be considered under Sec.  4A1.3 (Departures Based on Inadequacy of 
Criminal History Category (Policy Statement)).''.
    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended by striking Note 11 as follows:
    ``11. Revocations to be Considered.--Section 4A1.2(k) covers 
revocations of probation and other conditional sentences where the 
original term of imprisonment imposed, if any, did not exceed one year 
and one month. Rather than count the original sentence and the 
resentence after revocation as separate sentences, the sentence given 
upon revocation should be added to the original sentence of 
imprisonment, if any, and the total should be counted as if it were one 
sentence. By this approach, no more than three points will be assessed 
for a single conviction, even if probation or conditional release was 
subsequently revoked. If the sentence originally imposed, the sentence 
imposed upon revocation, or the total of both sentences exceeded one 
year and one month, the maximum three points would be assigned. If, 
however, at the time of revocation another sentence was imposed for a 
new criminal conviction, that conviction would be computed separately 
from the sentence imposed for the revocation.
    Where a revocation applies to multiple sentences, and such 
sentences are counted separately under Sec.  4A1.2(a)(2), add the term 
of imprisonment imposed upon revocation to the sentence that will 
result in the greatest increase in criminal history points. Example: A 
defendant was serving two probationary sentences, each counted 
separately under Sec.  4A1.2(a)(2); probation was revoked on both 
sentences as a result of the same violation conduct; and the defendant 
was sentenced to a total of 45 days of imprisonment. If one sentence 
had been a `straight' probationary sentence and the other had been a 
probationary sentence that had required service of 15 days of 
imprisonment, the revocation term of imprisonment (45 days) would be 
added to the probationary sentence that had the 15-day term of 
imprisonment. This would result in a total of 2 criminal history points 
under Sec.  4A1.1(b) (for the combined 60-day term of imprisonment) and 
1 criminal history point under Sec.  4A1.1(c) (for the other 
probationary sentence).'';

and by redesignating Note 12 as Note 11.
Issues for Comment
    1. The Commission invites comment on whether the Commission should 
consider changing how the guidelines currently account for revocations 
of

[[Page 92013]]

probation, parole, supervised release, special parole, or mandatory 
release for purposes of determining criminal history points pursuant to 
Chapter Four, Part A (Criminal History). Should the Commission consider 
amending Sec.  4A1.2(k) and, if so, how? For example, should revocation 
sentences not be counted in determining the criminal history score, as 
provided in the proposed amendment? Should the Commission provide 
instead a different approach for counting revocation sentences, such as 
counting the original sentence and the revocation sentences as separate 
sentences instead of aggregating them? If the Commission were to 
provide a different approach for counting revocation sentences, what 
should that different approach be?
    2. The proposed amendment would amend Sec.  4A1.2(k) to provide 
that revocations of probation, parole, supervised release, special 
parole, or mandatory release are not to be counted for purposes of 
calculating criminal history points, but may be considered under Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category 
(Policy Statement)). The policy statement at Sec.  4A1.3 provides 
upward departures for cases in which reliable information indicates 
that the defendant's criminal history category substantially 
underrepresents the seriousness of the defendant's criminal history.
    The Commission seeks comment on whether revocation sentences, if 
not counted for purposes of calculating criminal history points, may be 
considered for a departure under Sec.  4A1.3. Should the Commission 
provide specific guidance for determining whether an upward departure 
based on a revocation sentence may be warranted? If so, what specific 
guidance should the Commission provide?
    3. The Commission recently promulgated an amendment to the illegal 
reentry guideline at Sec.  2L1.2 (Unlawfully Entering or Remaining in 
the United States) that, among other things, revised the specific 
offense characteristics to account for prior convictions primarily 
through a sentence-imposed approach rather than through a type of 
offense approach (i.e., ``categorical approach''). See USSG App. C, 
amendment 802 (effective November 1, 2016). The amendment retained in 
the Commentary to Sec.  2L1.2 a definition of ``sentence imposed'' that 
includes as part of the length of the sentence ``any term of 
imprisonment given upon revocation of probation, parole, or supervised 
release.'' USSG Sec.  2L1.2, comment. (n.2).
    If the Commission were to promulgate the proposed amendment 
changing how the guidelines account for revocation sentences for 
purposes of determining criminal history points, should the Commission 
revise the definition of ``sentence imposed'' at Sec.  2L1.2 and, if 
so, how? How, if at all, should the Commission revise the ``sentence 
imposed'' definition to address any term of imprisonment given upon a 
revocation sentence? Should the Commission provide that revocation 
sentences should not be considered in determining the length of the 
``sentence imposed'' for purposes of applying the enhancements at Sec.  
2L1.2?

(B) Departure Based on Substantial Difference Between Time-Served and 
Sentence Imposed

Proposed Amendment
    The Commentary to Sec.  4A1.3 captioned ``Application Notes'' is 
amended in Note 3 by striking the following:
    '' Downward Departures.--A downward departure from the defendant's 
criminal history category may be warranted if, for example, the 
defendant had two minor misdemeanor convictions close to ten years 
prior to the instant offense and no other evidence of prior criminal 
behavior in the intervening period. A departure below the lower limit 
of the applicable guideline range for Criminal History Category I is 
prohibited under subsection (b)(2)(B), due to the fact that the lower 
limit of the guideline range for Criminal History Category I is set for 
a first offender with the lowest risk of recidivism.'',

and inserting the following:

    '' Downward Departures.--
    (A) Examples.--A downward departure from the defendant's criminal 
history category may be warranted based on any of the following 
circumstances:
    (i) The defendant had two minor misdemeanor convictions close to 
ten years prior to the instant offense and no other evidence of prior 
criminal behavior in the intervening period.
    (ii) The period of imprisonment actually served by the defendant 
was substantially less than the length of the sentence imposed for a 
conviction counted in the criminal history score.
    (B) Downward Departures from Criminal History Category I.--A 
departure below the lower limit of the applicable guideline range for 
Criminal History Category I is prohibited under subsection (b)(2)(A), 
due to the fact that the lower limit of the guideline range for 
Criminal History Category I is set for a first offender with the lowest 
risk of recidivism.''.
Issue for Comment
    1. Part B of the proposed amendment would amend the Commentary to 
Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)) to provide that a downward departure from 
the defendant's criminal history may be warranted in a case in which 
the period of imprisonment actually served by the defendant was 
substantially less than the length of the sentence imposed for a 
conviction counted in the criminal history score. Should the Commission 
exclude the consideration of such a downward departure in cases in 
which the time actually served by the defendant was substantially less 
than the length of the sentence imposed due to reasons unrelated to the 
facts and circumstances of the defendant's case, e.g., in order to 
minimize overcrowding or due to state budget concerns?

5. Bipartisan Budget Act

    Synopsis of Proposed Amendment: This proposed amendment responds to 
the Bipartisan Budget Act of 2015, Pub. L. 114-74 (Nov. 2, 2015), 
which, among other things, amended three existing criminal statutes 
concerned with fraudulent claims under certain Social Security 
programs.
    The three criminal statutes amended by the Bipartisan Budget Act of 
2015 are sections 208 (Penalties [for fraud involving the Federal Old-
Age and Survivors Insurance Trust Fund]), 811 (Penalties for fraud 
[involving special benefits for certain World War II veterans]), and 
1632 (Penalties for fraud [involving supplemental security income for 
the aged, blind, and disabled]) of the Social Security Act (42 U.S.C. 
408, 1011, and 1383a, respectively).

(A) Conspiracy To Commit Social Security Fraud

    The Bipartisan Budget Act of 2015 added new subdivisions 
prohibiting conspiracy to commit fraud for substantive offenses already 
contained in the three statutes (42 U.S.C. 408, 1011, and 1383a). For 
each of the three statutes, the new subdivision provides that whoever 
``conspires to commit any offense described in any of [the] 
paragraphs'' enumerated shall be imprisoned for not more than five 
years, the same statutory maximum penalty applicable to the substantive 
offense.
    The three amended statutes are currently referenced in Appendix A 
(Statutory Index) to Sec.  2B1.1 (Theft, Property Destruction, and 
Fraud). The

[[Page 92014]]

proposed amendment would amend Appendix A so that sections 408, 1011, 
and 1383a of Title 42 are referenced not only to Sec.  2B1.1 but also 
to Sec.  2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a 
Specific Office Guideline)).
    An issue for comment is provided.

(B) Increased Penalties for Certain Individuals Violating Positions of 
Trust

    The Bipartisan Budget Act of 2015 also amended sections 408, 1011, 
and 1383a of Title 42 to add increased penalties for certain persons 
who commit fraud offenses under the relevant Social Security programs. 
The Act included a provision in all three statutes identifying such 
persons as:

a person who receives a fee or other income for services performed 
in connection with any determination with respect to benefits under 
this title (including a claimant representative, translator, or 
current or former employee of the Social Security Administration), 
or who is a physician or other health care provider who submits, or 
causes the submission of, medical or other evidence in connection 
with any such determination . . . .

    A person who meets this requirement and is convicted of a fraud 
offense under one of the three amended statutes may be imprisoned for 
not more than ten years, double the otherwise applicable five-year 
penalty for other offenders. The new increased penalties apply to all 
of the fraudulent conduct in subsection (a) of the three statutes.
    The proposed amendment would amend Sec.  2B1.1 to address cases in 
which the defendant was convicted under 42 U.S.C. 408(a), Sec.  
1011(a), or Sec.  1383a(a) and the statutory maximum term of ten years' 
imprisonment applies. It provides an enhancement of [4][2] levels and a 
minimum offense level of [14][12] for such cases. It also adds 
Commentary specifying whether an adjustment under Sec.  3B1.3 (Abuse of 
Position of Trust or Use of Special Skill) applies -- bracketing two 
possibilities: if the enhancement applies, the adjustment does not 
apply; and if the enhancement applies, the adjustment is not precluded 
from applying.
    Issues for comment are also provided.

(A) Conspiracy to Commit Social Security Fraud

Proposed Amendment
    Appendix A (Statutory Index) is amended in the line referenced to 
42 U.S.C. 408 by inserting ``, 2X1.1'' at the end; in the line 
referenced to 42 U.S.C. 1011 by inserting ``, 2X1.1'' at the end; and 
in the line referenced to 42 U.S.C. 1383a(a) by inserting ``, 2X1.1'' 
at the end.
Issue for Comment
    1. Part A of the proposed amendment would reference the new 
conspiracy offenses under 42 U.S.C. 408, 1011, and 1383a to Sec.  2X1.1 
(Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Office 
Guideline)). The Commission invites comment on whether the guidelines 
covered by the proposed amendment adequately account for these 
offenses. If not, what revisions to the guidelines would be appropriate 
to account for these offenses? Should the Commission reference these 
new offenses to other guidelines instead of, or in addition to, the 
guidelines covered by the proposed amendment?

(B) Increased Penalties for Certain Individuals Violating Positions of 
Trust

Proposed Amendment
    Section 2B1.1(b) is amended by redesignating paragraphs (13) 
through (19) as paragraphs (14) through (20), respectively, and by 
inserting the following new paragraph (13):
    ``(13) If the defendant was convicted under 42 U.S.C. 408(a), Sec.  
1011(a), or Sec.  1383a(a) and the statutory maximum term of ten years' 
imprisonment applies, increase by [4][2] levels. If the resulting 
offense level is less than [14][12], increase to level [14][12].''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 11 through 20 as Notes 12 through 21, 
respectively, and by inserting the following new Note 11:
    ``11. Interaction of Subsection (b)(13) and Sec.  3B1.3.--[If 
subsection (b)(13) applies, do not apply Sec.  3B1.3 (Abuse of Position 
of Trust or Use of Special Skill).][Application of subsection (b)(13) 
does not preclude a defendant from consideration for an adjustment 
under Sec.  3B1.3 (Abuse of Position of Trust or Use of Special 
Skill).]''.
Issues for Comment
    1. The Bipartisan Budget Act of 2015 amended sections 408, 1011, 
and 1383a of Title 42 to include a provision in all three statutes 
increasing the statutory maximum term of imprisonment from five years 
to ten years for certain persons who commit fraud offenses under 
subsection (a) of the three statutes. The Act identifies such persons 
as:

a person who receives a fee or other income for services performed 
in connection with any determination with respect to benefits under 
this title (including a claimant representative, translator, or 
current or former employee of the Social Security Administration), 
or who is a physician or other health care provider who submits, or 
causes the submission of, medical or other evidence in connection 
with any such determination . . . .

    The Commission seeks comment on how, if at all, the guidelines 
should be amended to address cases in which the offense of conviction 
is 42 U.S.C. 408, Sec.  1011, or Sec.  1383a, and the statutory maximum 
term of ten years' imprisonment applies because the defendant was a 
person described in 42 U.S.C. 408(a), Sec.  1011(a), or Sec.  1383a(a). 
Are these cases adequately addressed by existing provisions in the 
guidelines, such as the adjustment in Sec.  3B1.3 (Abuse of Position of 
Trust or Use of Special Skill)? If so, as an alternative to the 
proposed amendment, should the Commission amend Sec.  2B1.1 only to 
provide an application note that expressly provides that, for a 
defendant subject to the ten years' statutory maximum in such cases, an 
adjustment under Sec.  3B1.3 ordinarily would apply? If not, how should 
the Commission amend the guidelines to address these cases?
    2. The proposed amendment would amend Sec.  2B1.1 to provide an 
enhancement and a minimum offense level for cases in which the 
defendant was convicted under 42 U.S.C. 408(a), Sec.  1011(a), or Sec.  
1383a(a) and the statutory maximum term of ten years' imprisonment 
applies because the defendant was a person described in 42 U.S.C. 
408(a), Sec.  1011(a), or Sec.  1383a(a). However, there may be cases 
in which a defendant, who meets the criteria set forth for the new 
statutory maximum term of ten years' imprisonment, is convicted under a 
general fraud statute (e.g., 18 U.S.C. 1341) for an offense involving 
conduct described in 42 U.S.C. 408(a), Sec.  1011(a), or Sec.  
1383a(a).
    The Commission seeks comment on whether the Commission should 
instead amend Sec.  2B1.1 to provide a general specific offense 
characteristic for such cases. For example, should the Commission 
provide an enhancement for cases in which the offense involved conduct 
described in 42 U.S.C. 408(a), Sec.  1011(a), or Sec.  1383a(a) and the 
defendant is a person ``who receives a fee or other income for services 
performed in connection with any determination with respect to benefits 
[covered by those statutory provisions] (including a claimant 
representative, translator, or current or former employee of the Social 
Security Administration), or who is a physician or other health care 
provider who submits, or causes the submission of, medical or other 
evidence in connection with any such determination''? If so, how many 
levels would be appropriate for such an enhancement? How should

[[Page 92015]]

such an enhancement interact with the existing enhancements at Sec.  
2B1.1 and the Chapter Three adjustment at Sec.  3B1.3 (Abuse of 
Position of Trust or Use of Special Skill)?

6. Acceptance of Responsibility

    Synopsis of Proposed Amendment: In August 2016, the Commission 
indicated that one of its priorities would be the consideration of 
miscellaneous guideline application issues, ``including possible 
consideration of whether a defendant's denial of relevant conduct 
should be considered in determining whether a defendant has accepted 
responsibility for purposes of Sec.  3E1.1.'' See United States 
Sentencing Commission, ``Notice of Final Priorities,'' 81 FR 58004 
(Aug. 24, 2016).
    Section 3E1.1 (Acceptance of Responsibility) provides for a 2-level 
reduction for a defendant who clearly demonstrates acceptance of 
responsibility. Application Note 1(A) of Sec.  3E1.1 provides as one of 
the appropriate considerations in determining whether a defendant 
``clearly demonstrate[d] acceptance of responsibility'' the following:

truthfully admitting the conduct comprising the offense(s) of 
conviction, and truthfully admitting or not falsely denying any 
additional relevant conduct for which the defendant is accountable 
under Sec.  1B1.3 (Relevant Conduct). Note that a defendant is not 
required to volunteer, or affirmatively admit, relevant conduct 
beyond the offense of conviction in order to obtain a reduction 
under subsection (a). A defendant may remain silent in respect to 
relevant conduct beyond the offense of conviction without affecting 
his ability to obtain a reduction under this subsection. However, a 
defendant who falsely denies, or frivolously contests, relevant 
conduct that the court determines to be true has acted in a manner 
inconsistent with acceptance of responsibility;

    In addition, Application Note 3 provides further guidance on 
evidence that might demonstrate acceptance of responsibility, as 
follows:

    Entry of a plea of guilty prior to the commencement of trial 
combined with truthfully admitting the conduct comprising the 
offense of conviction, and truthfully admitting or not falsely 
denying any additional relevant conduct for which he is accountable 
under Sec.  1B1.3 (Relevant Conduct) (see Application Note 1(A)), 
will constitute significant evidence of acceptance of responsibility 
for the purposes of subsection (a). However, this evidence may be 
outweighed by conduct of the defendant that is inconsistent with 
such acceptance of responsibility. A defendant who enters a guilty 
plea is not entitled to an adjustment under this section as a matter 
of right.

    The Commission has heard concerns that the Commentary to Sec.  
3E1.1 (particularly the provisions cited above) encourages courts to 
deny a reduction in sentence when a defendant pleads guilty and accepts 
responsibility for the offense of conviction, but unsuccessfully 
challenges the presentence report's assessments of relevant conduct. 
These commenters suggest this has a chilling effect because defendants 
are concerned such objections may jeopardize their eligibility for a 
reduction for acceptance of responsibility.
    The proposed amendment amends the Commentary to Sec.  3E1.1 to 
revise how the defendant's challenge of relevant conduct should be 
considered in determining whether the defendant has accepted 
responsibility for purposes of the guideline. Specifically, it would 
amend Application Note 1(A) to delete the sentence that states ``a 
defendant who falsely denies, or frivolously contests, relevant conduct 
that the court determines to be true has acted in a manner inconsistent 
with acceptance of responsibility.'' The proposed amendment would 
instead provide that a defendant who makes a non-frivolous challenge to 
relevant conduct is not precluded from consideration for a reduction 
under Sec.  3E1.1(a).
    An issue for comment is also provided.
Proposed Amendment
    The Commentary to Sec.  3E1.1 captioned ``Application Notes'' is 
amended in Note 1(A) by striking ``However, a defendant who falsely 
denies, or frivolously contests, relevant conduct that the court 
determines to be true has acted in a manner inconsistent with 
acceptance of responsibility'' and inserting the following: ``In 
addition, a defendant who makes a non-frivolous challenge to relevant 
conduct is not precluded from consideration for a reduction under 
subsection (a)''.
Issue for Comment
    1. The Commission seeks comment on whether the Commission should 
amend the Commentary to Sec.  3E1.1 (Acceptance of Responsibility) to 
change or clarify how a defendant's challenge to relevant conduct 
should be considered in determining whether a defendant has accepted 
responsibility for purposes of Sec.  3E1.1? If so, what changes should 
the Commission make to Sec.  3E1.1?
    For example, the proposed amendment would provide that a defendant 
who makes a non-frivolous challenge to relevant conduct is not 
precluded from consideration for a reduction under Sec.  3E1.1(a). What 
additional guidance, if any, should the Commission provide on what 
constitutes ``a non-frivolous challenge to relevant conduct''? Should 
such challenges include informal challenges to relevant conduct during 
the sentencing process, whether or not the issues challenged are 
determinative to the applicable guideline range? Should the Commission 
broaden the proposed provision to include other sentencing 
considerations, such as departures or variances? Should the Commission 
instead remove from Sec.  3E1.1 all references to relevant conduct for 
which the defendant is accountable under Sec.  1B1.3, and reference 
only the elements of the offense of conviction?

7. Miscellaneous

    Synopsis of Proposed Amendment: This proposed amendment responds to 
recently enacted legislation and miscellaneous guideline issues.
    The proposed amendment contains four parts (Parts A through D). The 
Commission is considering whether to promulgate any or all of these 
parts, as they are not necessarily mutually exclusive. They are as 
follows--
    Part A responds to the Transnational Drug Trafficking Act of 2015, 
Pub. L. 114-154 (May 16, 2016), by amending Sec.  2B5.3 (Criminal 
Infringement of Copyright or Trademark).
    Part B responds to the International Megan's Law to Prevent Child 
Exploitation and Other Sexual Crimes Through Advanced Notification of 
Traveling Sex Offenders Act, Pub. L. 114-119 (Feb. 8, 2016), by 
amending Sec.  2A3.5 (Failure to Register as a Sex Offender), Sec.  
2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender), 
and Appendix A (Statutory Index).
    Part C responds to the Frank R. Lautenberg Chemical Safety for the 
21st Century Act, Pub. L. 114-182 (June 22, 2016), by amending Appendix 
A (Statutory Index).
    Part D amends Sec.  2G1.3 (Promoting a Commercial Sex Act or 
Prohibited Sexual Conduct with a Minor; Transportation of Minors to 
Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to 
Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; 
Sex Trafficking of Children; Use of Interstate Facilities to Transport 
Information about a Minor) to clarify how the use of a computer 
enhancement at subsection (b)(3) interacts with its correlating 
commentary.
(A) Transnational Drug Trafficking Act of 2015
    Synopsis of Proposed Amendment: Part A of the proposed amendment 
responds to the Transnational Drug Trafficking Act of 2015, Pub. L. 
114-154

[[Page 92016]]

(May 16, 2016). The primary purpose of the Act is to enable the 
Department of Justice to target extraterritorial drug trafficking 
activity. Among other things, the Act clarified the mens rea 
requirement for offenses related to trafficking in counterfeit drugs, 
without changing the statutory penalties associated with such offenses. 
The Act amended 18 U.S.C. 2230 (Trafficking in Counterfeit Goods or 
Services), which prohibits trafficking in a range of goods and 
services, including counterfeit drugs. The amended statute is currently 
referenced in Appendix A (Statutory Index) of the Guidelines Manual to 
Sec.  2B5.3 (Criminal Infringement of Copyright or Trademark).
    In particular, the Act made changes relating to counterfeit drugs. 
First, the Act amended the penalty provision at section 2320, replacing 
the term ``counterfeit drug'' with the phrase ``drug that uses a 
counterfeit mark on or in connection with the drug.'' Second, the Act 
revised section 2320(f)(6) to define only the term ``drug'' instead of 
``counterfeit drug.'' The amended provision defines ``drug'' as ``a 
drug, as defined in section 201 of the Federal Food, Drug, and Cosmetic 
Act (21 U.S.C. 321).'' The Act did not amend the definition of 
``counterfeit mark'' contained in section 2230(f)(1), which provides 
that--

the term ``counterfeit mark'' means--
    (A) a spurious mark--
    (i) that is used in connection with trafficking in any goods, 
services, labels, patches, stickers, wrappers, badges, emblems, 
medallions, charms, boxes, containers, cans, cases, hangtags, 
documentation, or packaging of any type or nature;
    (ii) that is identical with, or substantially indistinguishable 
from, a mark registered on the principal register in the United States 
Patent and Trademark Office and in use, whether or not the defendant 
knew such mark was so registered;
    (iii) that is applied to or used in connection with the goods or 
services for which the mark is registered with the United States Patent 
and Trademark Office, or is applied to or consists of a label, patch, 
sticker, wrapper, badge, emblem, medallion, charm, box, container, can, 
case, hangtag, documentation, or packaging of any type or nature that 
is designed, marketed, or otherwise intended to be used on or in 
connection with the goods or services for which the mark is registered 
in the United States Patent and Trademark Office; and
    (iv) the use of which is likely to cause confusion, to cause 
mistake, or to deceive; or
    (B) a spurious designation that is identical with, or substantially 
indistinguishable from, a designation as to which the remedies of the 
Lanham Act are made available by reason of section 220506 of title 36 . 
. . .
    Part A of the proposed amendment amends Sec.  2B5.3(b)(5) to 
replace the term ``counterfeit drug'' with ``drug that uses a 
counterfeit mark on or in connection with the drug.'' The proposed 
amendment would also amend the Commentary to Sec.  2B5.3 to delete the 
``counterfeit drug'' definition and provide that ``drug'' and 
``counterfeit mark'' have the meaning given those terms in 18 U.S.C. 
2320(f).
Proposed Amendment
    Section 2B5.3(b)(5) is amended by striking ``counterfeit drug'' and 
inserting ``drug that uses a counterfeit mark on or in connection with 
the drug''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 1 by striking the third undesignated paragraph as 
follows:
    ```Counterfeit drug' has the meaning given that term in 18 U.S.C. 
2320(f)(6).'',

and by inserting after the paragraph that begins ```Counterfeit 
military good or service' has the meaning'' the following new 
paragraph:

    ```Drug' and `counterfeit mark' have the meaning given those terms 
in 18 U.S.C. 2320(f).''.
(B) International Megan's Law to Prevent Child Exploitation and Other 
Sexual Crimes Through Advanced Notification of Traveling Sex Offenders
    Synopsis of Proposed Amendment: Part B of the proposed amendment 
responds to the International Megan's Law to Prevent Child Exploitation 
and Other Sexual Crimes Through Advanced Notification of Traveling Sex 
Offenders Act (``International Megan's Law''), Pub. L. 114-119 (Feb. 8, 
2016). The Act added a new notification requirement to 42 U.S.C. 16914 
(Information required in [sex offender] registration). Section 16914 
states that sex offenders who are required to register under the Sex 
Offender Registration and Notification Act (SORNA) must provide certain 
information for inclusion in the sex offender registry. Those 
provisions include the offender's name, Social Security number, address 
of all residences, name and address where the offender is an employee, 
the name and address where the offender is a student, license plate 
number and description of any vehicle. The International Megan's Law 
added as an additional requirement that the sex offender must provide 
``information relating to intended travel of the sex offender outside 
of the United States, including any anticipated dates and places of 
departure, arrival or return, carrier and flight numbers for air 
travel, destination country and address or other contact information 
therein, means and purpose of travel, and any other itinerary or other 
travel-related information required by the Attorney General.''
    The International Megan's Law also added a new criminal offense at 
18 U.S.C. 2250(b) (Failure to register). The new subsection (b) 
provides that whoever is required to register under SORNA who knowingly 
fails to provide the above described information required by SORNA 
relating to intended travel in foreign commerce and who engages or 
attempts to engage in the intended travel, is subject to a 10 year 
statutory maximum penalty. Section 2250 offenses are referenced in 
Appendix A (Statutory Index) to Sec.  2A3.5 (Failure to Register as a 
Sex Offender).
    Part B of the proposed amendment amends Appendix A (Statutory 
Index) so the new offenses at 18 U.S.C. 2250(b) are referenced to Sec.  
2A3.5. The proposed amendment also brackets the possibility of adding a 
new application note to the Commentary to Sec.  2A3.5 providing that 
for purposes of Sec.  2A3.5(b), a defendant shall be deemed to be in a 
``failure to register status'' during the period in which the defendant 
engaged in conduct described in 18 U.S.C. 2250(a) or (b).
    Finally, Part B makes clerical changes to Sec.  2A3.6 (Aggravated 
Offenses Relating to Registration as a Sex Offender) to reflect the 
redesignation of 18 U.S.C.Sec.  2250(c) by the International Megan's 
Law.
Proposed Amendment
    The Commentary to Sec.  2A3.5 captioned ``Statutory Provisions'' is 
amended by striking ``Sec.  2250(a)'' and inserting ``Sec.  2250(a), 
(b)''.
    [The Commentary to Sec.  2A3.5 captioned ``Application Notes'' is 
amended by redesignating Note 2 as Note 3, and by inserting the 
following new Note 2:
    ``2. Application of Subsection (b)(1).--For purposes of subsection 
(b)(1), a defendant shall be deemed to be in a `failure to register 
status' during the period in which the defendant engaged in conduct 
described in 18 U.S.C. 2250(a) or (b).''.]
    Section 2A3.6(a) is amended by striking ``Sec.  2250(c)'' and 
inserting ``Sec.  2250(d)''.
    The Commentary to Sec.  2A3.6 captioned ``Statutory Provisions'' is 
amended by striking ``2250(c)'' and inserting ``2250(d)''.

[[Page 92017]]

    The Commentary to Sec.  2A3.6 captioned ``Statutory provisions is 
amended--

in Note 1 by striking ``Section 2250(c)'' and inserting ``Section 
2250(d)'', and by inserting after ``18 U.S.C. 2250(a)'' the following: 
``or (b)'';
in Note 3 by striking ``Sec.  2250(c)'' and inserting ``Sec.  
2250(d)'';
and in Note 4 by striking ``Sec.  2250(c)'' and inserting ``Sec.  
2250(d)''.

    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 2250(a) by striking ``Sec.  2250(a)'' and inserting ``Sec.  
2250(a), (b)''; and in the line referenced to 18 U.S.C. 2250(c) by 
striking ``Sec.  2250(c)'' and inserting ``Sec.  2250(d)''.
(C) Frank R. Lautenberg Chemical Safety for the 21st Century Act
    Synopsis of Proposed Amendment: Part C of the proposed amendment 
responds to the Frank R. Lautenberg Chemical Safety for the 21st 
Century Act, Pub. L. 114-182 (June 22, 2016). The Act, among other 
things, amended section 16 of the Toxic Substances Control Act (15 
U.S.C. 2615) to add a new subsection that provides that any person who 
knowingly and willfully violates certain provisions of the Toxic 
Substances Control Act and who knows at the time of the violation that 
the violation places an individual in imminent danger of death or 
bodily injury shall be subject to a fine up to $250,000, imprisonment 
of up to 15 years, or both.
    Part C of the proposed amendment amends Appendix A (Statutory 
Index) so that the new provision, 15 U.S.C. 2615(b)(2) is referenced to 
Sec.  2Q1.1 (Knowing Endangerment Resulting From Mishandling Hazardous 
or Toxic Substances, Pesticides or Other Pollutants), while maintaining 
the reference to Sec.  2Q1.2 (Mishandling of Hazardous or Toxic 
Substances or Pesticides; Recordkeeping, Tampering, and Falsification; 
Unlawfully Transporting Hazardous Materials in Commerce) for 15 U.S.C. 
2615(b)(1).
Proposed Amendment
    Appendix A (Statutory Index) is amended--

    in the line referenced to 15 U.S.C. 2615 by striking ``Sec.  2615'' 
and inserting ``Sec.  2615(b)(1)'';
and by inserting before the line referenced to 15 U.S.C. 6821 the 
following new line reference:

    ``15 U.S.C. 2615(b)(2) 2Q1.1''.
D) Use of a Computer Enhancement in Sec.  2G1.3
    Synopsis of Proposed Amendment: Part D of the proposed amendment 
clarifies how the use of a computer enhancement at Sec.  2G1.3(b)(3) 
interacts with its corresponding commentary at Application Note 4. 
Section 2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual 
Conduct with a Minor; Transportation of Minors to Engage in a 
Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in 
Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex 
Trafficking of Children; Use of Interstate Facilities to Transport 
Information about a Minor) applies to several offenses involving the 
transportation of a minor for illegal sexual activity. Subsection 
(b)(3) of Sec.  2G1.3 provides a 2-level enhancement if--

the offense involved the use of a computer or an interactive 
computer service to (A) persuade, induce, entice, coerce, or 
facilitate the travel of, the minor to engage in prohibited sexual 
conduct; or (B) entice, encourage, offer, or solicit a person to 
engage in prohibited sexual conduct with the minor.

    Application Note 4 to Sec.  2G1.3 sets forth guidance on this 
enhancement providing as follows:

    Subsection (b)(3) is intended to apply only to the use of a 
computer or an interactive computer service to communicate directly 
with a minor or with a person who exercises custody, care, or 
supervisory control of the minor. Accordingly, the enhancement in 
subsection (b)(3) would not apply to the use of a computer or an 
interactive computer service to obtain airline tickets for the minor 
from an airline's Internet site.

    An application issue has arisen as to whether Application Note 4, 
by failing to distinguish between the two prongs of subsection (b)(3), 
prohibits application of the enhancement where a computer was used to 
solicit a third party to engage in prohibited sexual conduct with a 
minor.
    Most courts to have addressed this issue have concluded that 
Application Note 4 is inconsistent with the language of Sec.  
2G1.3(b)(3), and have permitted the application of the enhancement for 
use of a computer in third party solicitation cases. See, e.g., United 
States v. Cramer, 777 F.3d 597, 606 (2d Cir. 2015) (``We conclude that 
Application Note 4 is plainly inconsistent with subsection (b)(3)(B). . 
. . The plain language of subsection (b)(3)(B) is clear, and there is 
no indication that the drafters of the Guidelines intended to limit 
this plain language through Application Note 4.''); United States v. 
McMillian, 777 F.3d 444, 449-50 (7th Cir. 2015) (``[The defendant] 
points out that Application Note 4 states that `Subsection (b)(3) is 
intended to apply only to the use of a computer or an interactive 
computer service to communicate directly with a minor or with a person 
who exercises custody, care, or supervisory control of the minor.[`]. . 
. . But the note is wrong. The guideline section provides a 2-level 
enhancement whenever the defendant uses a computer to `entice, 
encourage, offer, or solicit a person to engage in prohibited sexual 
conduct with the minor. . . . When an application note clashes with the 
guideline, the guideline prevails.''); United States v. Hill, 783 F.3d 
842, 846 (11th Cir. 2015) (``Because the application note is 
inconsistent with the plain language of U.S.S.G. Sec.  2G1.3(b)(3)(B), 
the plain language of the guideline controls.''); United States v. 
Pringler, 765 F.3d 455 (5th Cir. 2014) (``[W]e hold that the commentary 
in application note 4 is `inconsistent with' Guideline Sec.  
2G1.3(b)(3)(B), and we therefore follow the plain language of the 
Guideline alone.'').
    Part D of the proposed amendment would amend the Commentary to 
Sec.  2G1.3 to clarify that the guidance contained in Application Note 
4 refers only to subsection (b)(3)(A) and does not control the 
application of the enhancement for use of a computer in third party 
solicitation cases (as provided in subsection (b)(3)(B)).
Proposed Amendment
    The Commentary to Sec.  2G1.3 captioned ``Application Notes'' is 
amended in Note 4 by striking ``(b)(3)'' each place such term appears 
and inserting ``(b)(3)(A)''.

8. Marihuana Equivalency

    Synopsis of Proposed Amendment This proposed amendment makes 
technical changes to Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) to replace the term ``marihuana 
equivalency'' which is used in the Drug Equivalency Tables when 
determining penalties for controlled substances.
    The Commentary to Sec.  2D1.1 sets forth a series of Drug 
Equivalency Tables. These tables provide a value termed ``marihuana 
equivalency'' for certain controlled substances that is used to 
determine the offense level for cases in which the controlled substance 
involved in the offense is not specifically listed in the Drug Quantity 
Tables, or where there is more than one controlled substance involved 
in the offense (whether or not listed in the Drug Quantity Table). See 
Sec.  2D1.1, comment. (n.8). The tables are separated by drug type and 
schedule.
    In a case involving a controlled substance that is not specifically 
referenced in the Drug Quantity Table,

[[Page 92018]]

the base offense level is determined by using the Drug Equivalency 
Tables to convert the quantity of the controlled substance involved in 
the offense to its marihuana equivalency, then finding the offense 
level in the Drug Quantity Table that corresponds to that quantity of 
marihuana. In a case involving more than one controlled substance, each 
of the drugs is converted into its marihuana equivalency, the converted 
quantities are added, and the aggregate quantity is used to find the 
offense level in the Drug Quantity Table.
    The Commission received comment expressing concern that the term 
``marihuana equivalency'' is misleading and results in confusion for 
individuals not fully versed in the guidelines. In particular, they 
suggested that the Commission should replace ``marihuana equivalency'' 
with another term.
    The proposed amendment amends Sec.  2D1.1 to replace ``marihuana 
equivalency'' in the Drug Equivalency Tables for determining penalties 
for controlled substances. It replaces that term throughout the 
guideline with the term ``converted drug weight.'' It also changes the 
title of the ``Drug Equivalency Tables'' to ``Drug Conversion Tables.'' 
The proposed amendment is not intended as a substantive change in 
policy.
    Finally, the proposed amendment makes certain clerical and 
conforming changes to reflect the changes to the Drug Equivalency 
Tables.
Proposed Amendment
    Section 2D1.1(c)(1) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    ''  90,000 KG or more of Converted Drug Weight.''.
    Section 2D1.1(c)(2) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    ''  At least 30,000 KG but less than 90,000 KG of Converted 
Drug Weight.''.
    Section 2D1.1(c)(3) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    ''  At least 10,000 KG but less than 30,000 KG of Converted 
Drug Weight.''.
    Section 2D1.1(c)(4) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    ''  At least 3,000 KG but less than 10,000 KG of Converted 
Drug Weight.''.
    Section 2D1.1(c)(5) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    ''  At least 1,000 KG but less than 3,000 KG of Converted 
Drug Weight.''.
    Section 2D1.1(c)(6) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    ''  At least 700 KG but less than 1,000 KG of Converted 
Drug Weight.''.
    Section 2D1.1(c)(7) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    ''  At least 400 KG but less than 700 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(8) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    ''  At least 100 KG but less than 400 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(9) is amended by striking the period at the end of 
the line referenced to Flunitrazepam and inserting a semicolon, and by 
adding at the end the following:
    ''  At least 80 KG but less than 100 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(10) is amended by striking the period at the end 
of the line referenced to Flunitrazepam and inserting a semicolon, and 
by adding at the end the following:
    ''  At least 60 KG but less than 80 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(11) is amended by striking the period at the end 
of the line referenced to Flunitrazepam and inserting a semicolon, and 
by adding at the end the following:
    ''  At least 40 KG but less than 60 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(12) is amended by striking the period at the end 
of the line referenced to Flunitrazepam and inserting a semicolon, and 
by adding at the end the following:
    ''  At least 20 KG but less than 40 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(13) is amended by striking the period at the end 
of the line referenced to Flunitrazepam and inserting a semicolon, and 
by adding at the end the following:
    ''  At least 10 KG but less than 20 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(14) is amended by striking the period at the end 
of the line referenced to Schedule IV substances (except Flunitrazepam) 
and inserting a semicolon, and by adding at the end the following:
    ''  At least 5 KG but less than 10 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(15) is amended by striking the period at the end 
of the line referenced to Schedule IV substances (except Flunitrazepam) 
and inserting a semicolon, and by adding at the end the following:
    ''  At least 2.5 KG but less than 5 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(16) is amended by striking the period at the end 
of the line referenced to Schedule V substances and inserting a 
semicolon, and by adding at the end the following:
    ''  At least 1 KG but less than 2.5 KG of Converted Drug 
Weight.''.
    Section 2D1.1(c)(17) is amended by striking the period at the end 
of the line referenced to Schedule V substances and inserting a 
semicolon, and by adding at the end the following:
    ''  Less than 1 KG of Converted Drug Weight.''.
    The annotation to Sec.  2D1.1(c) captioned ``Notes to Drug Quantity 
Table'' is amended by inserting at the end the following new Note (J):
    ``(J) The term `Converted Drug Weight,' for purposes of this 
guideline, refers to a nominal reference designation that is to be used 
as a conversion factor in the Drug Conversion Tables set forth in the 
Commentary below, to determine the offense level for controlled 
substances that are not specifically referenced in the Drug Quantity 
Table or when combining differing controlled substances.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended--

in Note 6 by striking ``marihuana equivalency'' and inserting 
``converted drug weight'' and by inserting after ``the most closely 
related controlled substance referenced in this guideline.'' the 
following: ``See Application Note 8.'';
in the heading of Note 8 by striking ``Equivalency'' and inserting 
``Conversion'';
in Note 8(A) by striking ``Drug Equivalency Tables'' both places such 
term appears and inserting ``Drug Conversion Tables''; by striking ``to 
convert the quantity of the controlled substance involved in the 
offense to its equivalent quantity of marihuana'' and inserting ``to 
find the converted drug weight of the controlled substance involved in 
the offense''; by striking ``Find the equivalent quantity of 
marihuana'' and inserting ``Find the corresponding converted drug 
weight''; by striking ``Use the offense level that corresponds to the 
equivalent quantity of marihuana''

[[Page 92019]]

and inserting ``Use the offense level that corresponds to the converted 
drug weight determined above''; by striking ``an equivalent quantity of 
5 kilograms of marihuana'' and inserting ``5 kilogram of converted drug 
weight''; and by striking ``the equivalent quantity of marihuana would 
be 500 kilograms'' and inserting ``the converted drug weight would be 
500 kilograms'';
in Note 8(B) by striking ``Drug Equivalency Tables'' each place such 
term appears and inserting ``Drug Conversion Tables''; by striking 
``convert each of the drugs to its marihuana equivalent'' and inserting 
``convert each of the drugs to its converted drug weight''; by striking 
``For certain types of controlled substances, the marihuana 
equivalencies'' and inserting ``For certain types of controlled 
substances, the converted drug weights assigned''; by striking ``e.g., 
the combined equivalent weight of all Schedule V controlled substances 
shall not exceed 2.49 kilograms of marihuana'' and inserting ``e.g., 
the combined converted weight of all Schedule V controlled substances 
shall not exceed 2.49 kilograms of converted drug weight''; by striking 
``determine the marihuana equivalency for each schedule separately'' 
and inserting ``determine the converted drug weight for each schedule 
separately''; and by striking ``Then add the marihuana equivalencies to 
determine the combined marihuana equivalency'' and inserting ``Then add 
the converted drug weights to determine the combined converted drug 
weight'';
in Note 8(C)(i) by striking ``of marihuana'' each place such term 
appears and inserting ``of converted drug weight''; and by striking 
``The total is therefore equivalent to 95 kilograms'' and inserting 
``The total therefore converts to 95 kilograms'';
in Note 8(C)(ii) by striking the following:

    ``The defendant is convicted of selling 500 grams of marihuana 
(Level 6) and 10,000 units of diazepam (Level 6). The diazepam, a 
Schedule IV drug, is equivalent to 625 grams of marihuana. The total, 
1.125 kilograms of marihuana, has an offense level of 8 in the Drug 
Quantity Table.'',
and inserting the following:

    ``The defendant is convicted of selling 500 grams of marihuana 
(Level 6) and 10,000 units of diazepam (Level 6). The amount of 
marihuana converts to 500 grams of converted drug weight. The diazepam, 
a Schedule IV drug, converts to 625 grams of converted drug weight. The 
total, 1.125 kilograms of converted drug weight, has an offense level 
of 8 in the Drug Quantity Table.'';

in Note 8(C)(iii) by striking ``is equivalent'' both places such term 
appears and inserting ``converts''; by striking ``of marihuana'' each 
place such term appears and inserting ``of converted drug weight''; and 
by striking ``The total is therefore equivalent'' and inserting ``The 
total therefore converts'';
in Note 8(C)(iv) by striking ``marihuana equivalency'' each place such 
term appears and inserting ``converted drug weight''; by striking ``76 
kilograms of marihuana'' and inserting ``76 kilograms''; by striking 
``79.99 kilograms of marihuana'' both places such term appears and 
inserting ``79.99 kilograms of converted drug weight''; by striking 
``equivalent weight'' each place such term appears and inserting 
``converted weight''; by striking ``9.99 kilograms of marihuana'' and 
inserting ``9.99 kilograms''; and by striking ``2.49 kilograms of 
marihuana'' and inserting ``2.49 kilograms'';
and in Note 8(D)--

    in the heading, by striking ``Equivalency'' and inserting 
``Conversion'';
    under the heading relating to Schedule I or II Opiates, by striking 
the heading as follows:
    ``Schedule I or II Opiates*'',

and inserting the following new heading:

``Schedule I or II Opiates*           Converted Drug Weight'';
 

and by striking ``of marihuana'' each place such term appears;
under the heading relating Cocaine and Other Schedule I and II 
Stimulants (and their immediate precursors), by striking the heading as 
follows:

    ``Cocaine and Other Schedule I and II Stimulants (and their 
immediate precursors)*'',

and inserting the following new heading:

``Cocaine and Other Schedule I and    Converted Drug Weight'';
 II Stimulants (and their immediate
 precursors)*
 

and by striking ``of marihuana'' each place such term appears;

under the heading relating to LSD, PCP, and Other Schedule I and II 
Hallucinogens (and their immediate precursors), by striking the heading 
as follows:

    ``LSD, PCP, and Other Schedule I and II Hallucinogens (and their 
immediate precursors)*'',

and inserting the following new heading:

``LSD, PCP, and Other Schedule I and  Converted Drug Weight'';
 II Hallucinogens (and their
 immediate precursors)*
 

and by striking ``of marihuana'' each place such term appears;
under the heading relating to Schedule I Marihuana, by striking the 
heading as follows:

    ``Schedule I Marihuana'',

and inserting the following new heading:

``Schedule I Marihuana                Converted Drug Weight'';
 

and by striking ``of marihuana'' each place such term appears;
under the heading relating to Flunitrazepam, by striking the heading as 
follows:
    ``Flunitrazepam**'',
and inserting the following new heading:

``Flunitrazepam**                     Converted Drug Weight'';
 

and by striking ``of marihuana'';
under the heading relating to Schedule I or II Depressants (except 
gamma-hydroxybutyric acid), by striking the heading as follows:

    ``Schedule I or II Depressants (except gamma-hydroxybutyric 
acid)'',

and inserting the following new heading:

``Schedule I or II Depressants        Converted Drug Weight'';
 (except gamma-hydroxybutyric acid)
 

and by striking ``of marihuana'';
under the heading relating to Gamma-hydroxybutyric Acid, by striking 
the heading as follows:
    ``Gamma-hydroxybutyric Acid'',
and inserting the following new heading:

``Gamma-hydroxybutyric Acid           Converted Drug Weight'';
 

and by striking ``of marihuana'';
under the heading relating to Schedule III Substances (except 
ketamine), by striking the heading as follows:
    ``Schedule III Substances (except ketamine)***'',

and inserting the following new heading:

``Schedule III Substances (except     Converted Drug Weight'';
 ketamine)***
 

by striking ``1gm of marihuana'' and inserting ``1 gm''; by striking

[[Page 92020]]

``equivalent weight'' and inserting ``converted weight''; and by 
striking ``79.99 kilograms of marihuana'' and inserting ``79.99 
kilograms of converted drug weight'';
under the heading relating to Ketamine, by striking the heading as 
follows:

    ``Ketamine'',

and inserting the following new heading:

``Ketamine                            Converted Drug Weight'';
 

and by striking ``of marihuana'';
under the heading relating to Schedule IV Substances (except 
flunitrazepam), by striking the heading as follows:

    ``Schedule IV Substances (except flunitrazepam)*****'',

and inserting the following new heading:

``Schedule IV Substances (except      Converted Drug Weight'';
 flunitrazepam)*****
 

by striking ``0.0625 gm of marihuana'' and inserting ``0.0625 gm''; by 
striking ``equivalent weight'' and inserting ``converted weight''; and 
by striking ``9.99 kilograms of marihuana'' and inserting ``9.99 
kilograms of converted drug weight'';
under the heading relating to Schedule V Substances, by striking the 
heading as follows:

    ``Schedule V Substances******'',

and inserting the following new heading:

``Schedule V Substances******         Converted Drug Weight'';
 

by striking ``0.00625 gm of marihuana'' and inserting ``0.00625 gm''; 
by striking ``equivalent weight'' and inserting ``converted weight''; 
and by striking ``2.49 kilograms of marihuana'' and inserting ``2.49 
kilograms of converted drug weight'';
under the heading relating to List I Chemicals (relating to the 
manufacture of amphetamine or methamphetamine), by striking the heading 
as follows:

    ``List I Chemicals (relating to the manufacture of amphetamine or 
methamphetamine)*******'',

and inserting the following new heading:

``List I Chemicals (relating to the   Converted Drug Weight'';
 manufacture of amphetamine or
 methamphetamine)*******
 

and by striking ``of marihuana'' each place such term appears;
under the heading relating to Date Rape Drugs (except flunitrazepam, 
GHB, or ketamine), by striking the heading as follows:
    ``Date Rape Drugs (except flunitrazepam, GHB, or ketamine)'',
and inserting the following new heading:

``Date Rape Drugs (except             Converted Drug Weight'';
 flunitrazepam, GHB, or ketamine)
 

    and by striking ``marihuana'' each place such term appears;
    and in the text before the heading relating to Measurement 
Conversion Table, by striking ``To facilitate conversions to drug 
equivalencies'' and inserting ``To facilitate conversions to converted 
drug weights''.

9. Technical Amendment

    Synopsis of Amendment: This proposed amendment makes various 
technical changes to the Guidelines Manual.
    Part A of the proposed amendment makes certain clarifying changes 
to two guidelines. First, the proposed amendment amends Chapter One, 
Part A, Subpart 1(4)(b) (Departures) to provide an explanatory note 
addressing the fact that Sec.  5K2.19 (Post-Sentencing Rehabilitative 
Efforts) was deleted by Amendment 768, effective November 1, 2012. 
Second, the proposed amendment makes minor clarifying changes to 
Application Note 2(A) to Sec.  2B1.1 (Theft, Property Destruction, and 
Fraud), to make clear that, for purposes of subsection (a)(1)(A), an 
offense is ``referenced to this guideline'' if Sec.  2B1.1 is the 
applicable Chapter Two guideline specifically referenced in Appendix A 
(Statutory Index) for the offense of conviction.
    Part B of the proposed amendment makes technical changes in 
Sec. Sec.  2Q1.3 (Mishandling of Other Environmental Pollutants; 
Recordkeeping, Tampering, and Falsification), 2R1.1 (Bid-Rigging, 
Price-Fixing or Market-Allocation Agreements Among Competitors), 4A1.2 
(Definitions and Instructions for Computing Criminal History), and 
4B1.4 (Armed Career Criminal), to correct title references to Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category 
(Policy Statement)).
    Part C of the proposed amendment makes clerical changes to--
    (1) the Commentary to Sec.  1B1.13 (Reduction in Term of 
Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)) to 
correct a typographical error by inserting a missing word in 
Application Note 4;
    (2) subsection (d)(6) to Sec.  2D1.11 (Unlawfully Distributing, 
Importing, Exporting or Possessing a Listed Chemical; Attempt or 
Conspiracy) to correct a typographical error in the line referencing 
Pseudoephedrine;
    (3) subsection (e)(2) to Sec.  2D1.11 (Unlawfully Distributing, 
Importing, Exporting or Possessing a Listed Chemical; Attempt or 
Conspiracy) to correct a punctuation mark under the heading relating to 
List I Chemicals;
    (4) the Commentary to Sec.  2M2.1 (Destruction of, or Production of 
Defective, War Material, Premises, or Utilities) captioned ``Statutory 
Provisions'' to add a missing section symbol and a reference to 
Appendix A (Statutory Index);
    (5) the Commentary to Sec.  2Q1.1 (Knowing Endangerment Resulting 
From Mishandling Hazardous or Toxic Substances, Pesticides or Other 
Pollutants) captioned ``Statutory Provisions'' to add a missing 
reference to 42 U.S.C. 7413(c)(5) and a reference to Appendix A 
(Statutory Index);
    (6) the Commentary to Sec.  2Q1.2 (Mishandling of Hazardous or 
Toxic Substances or Pesticides; Recordkeeping, Tampering, and 
Falsification; Unlawfully Transporting Hazardous Materials in Commerce) 
captioned ``Statutory Provisions'' to add a specific reference to 42 
U.S.C. 7413(c)(1)-(4);
    (7) the Commentary to Sec.  2Q1.3 (Mishandling of Other 
Environmental Pollutants; Recordkeeping, Tampering, and Falsification) 
captioned ``Statutory Provisions'' to add a specific reference to 42 
U.S.C. 7413(c)(1)-(4);
    (8) subsection (a)(4) to Sec.  5D1.3. (Conditions of Supervised 
Release) to change an inaccurate reference to ``probation'' to 
``supervised release''; and
    (9) the lines referencing ``18 U.S.C. 371'' and ``18 U.S.C. 1591'' 
in Appendix A (Statutory Index) to rearrange the order of certain 
Chapter Two guidelines references to place them in proper numerical 
order.

Proposed Amendment:

(A) Clarifying Changes
    Chapter One, Part A is amended in Subpart 1(4)(b) (Departures) by 
inserting an asterisk after ``Sec.  5K2.19 (Post-Sentencing 
Rehabilitative Efforts)'', and by inserting at the end [of the first 
paragraph] the following:
    ``*Note: Section 5K2.19 (Post-Sentencing Rehabilitative Efforts) 
was deleted by Amendment 768, effective November 1, 2012. (See USSG 
App. C, amendment 768.)'';

    and in the note at the end of Subpart 1(4)(d) (Probation and Split 
Sentences) by striking ``Supplement to Appendix C'' and inserting 
``USSG App. C''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in

[[Page 92021]]

Note 2(A)(i) by striking ``as determined under the provisions of Sec.  
1B1.2 (Applicable Guidelines) for the offense of conviction'' and 
inserting the following: ``specifically referenced in Appendix A 
(Statutory Index) for the offense of conviction, as determined under 
the provisions of Sec.  1B1.2 (Applicable Guidelines)''.
(B) Title References to Sec.  4A1.3
    The Commentary to Sec.  2Q1.3 captioned ``Application Notes'' is 
amended in Note 8 by striking ``Adequacy of Criminal History Category'' 
and inserting ``Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)''.
    The Commentary to Sec.  2R1.1 captioned ``Application Notes'' is 
amended in Note 7 by striking ``Adequacy of Criminal History Category'' 
and inserting ``Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)''.
    Section 4A1.2 is amended in subsections (h) through (j) by striking 
``Adequacy of Criminal History Category'' each place such term appears 
and inserting ``Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)''.
    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended in Notes 6 and 8 by striking ``Adequacy of Criminal History 
Category'' both places such term appears and inserting ``Departures 
Based on Inadequacy of Criminal History Category (Policy Statement)''.
    The Commentary to Sec.  4B1.4 captioned ``Background'' is amended 
by striking ``Adequacy of Criminal History Category'' and inserting 
``Departures Based on Inadequacy of Criminal History Category (Policy 
Statement)''.
(C) Clerical Changes
    The Commentary to Sec.  1B1.13 captioned ``Application Notes'' is 
amended in Note 4 by striking ``factors set forth 18 U.S.C. 3553(a)'' 
and inserting ``factors set forth in 18 U.S.C. 3553(a)''.
    Section 2D1.11 is amended in subsection (d)(6) by striking 
``Pseuodoephedrine'' and inserting ``Pseudoephedrine'';
    and in subsection (e)(2), under the heading relating to List I 
Chemicals, by striking the period at the end and inserting a semicolon.
    The Commentary to Sec.  2M2.1 captioned ``Statutory Provisions'' is 
amended by striking ``Sec.  2153'' and inserting ``Sec. Sec.  2153'', 
and by inserting at the end the following: ``For additional statutory 
provision(s), see Appendix A (Statutory Index).''.
    The Commentary to Sec.  2Q1.1 captioned ``Statutory Provisions'' is 
amended by striking ``42 U.S.C. 6928(e)'' and inserting ``42 U.S.C. 
6928(e), 7413(c)(5)'', and by inserting at the end the following: ``For 
additional statutory provision(s), see Appendix A (Statutory Index).''.
    The Commentary to Sec.  2Q1.2 captioned ``Statutory Provisions'' is 
amended by striking ``7413'' and inserting ``7413(c)(1)-(4)''.
    The Commentary to Sec.  2Q1.3 captioned ``Statutory Provisions'' is 
amended by striking ``7413'' and inserting ``7413(c)(1)-(4)''.
    Section 5D1.3(a)(4) is amended by striking ``release on probation'' 
and inserting ``release on supervised release''.
    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 371 by rearranging the guidelines to place them in proper 
order, and in the line referencing 18 U.S.C. 1591 by rearranging the 
guidelines to place them in proper order.

[FR Doc. 2016-30493 Filed 12-16-16; 8:45 am]
 BILLING CODE 2210-40-P