Sentencing Guidelines for United States Courts, 7180-7234 [2023-01346]

Agencies

• United States Sentencing Commission

[Federal Register Volume 88, Number 22 (Thursday, February 2, 2023)]
[Notices]
[Pages 7180-7234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01346]



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Vol. 88

Thursday,

No. 22

February 2, 2023

Part III





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

Federal Register / Vol. 88, No. 22 / Thursday, February 2, 2023 / 
Notices

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice and request for public comment and hearing.

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SUMMARY: The United States Sentencing Commission is considering 
promulgating 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 several 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 
section of this notice.

DATES: 
    Written Public Comment. Written public comment regarding the 
proposed amendments and issues for comment set forth in this notice, 
including public comment regarding retroactive application of any of 
the proposed amendments, should be received by the Commission not later 
than March 14, 2023. Any public comment received after the close of the 
comment period may not be considered.
    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 website at 
www.ussc.gov.

ADDRESSES: There are two methods for submitting public comment.
    Electronic Submission of Comments. Comments may be submitted 
electronically via the Commission's Public Comment Submission Portal at 
https://comment.ussc.gov. Follow the online instructions for submitting 
comments.
    Submission of Comments by Mail. Comments may be submitted by mail 
to the following address: United States Sentencing Commission, One 
Columbus Circle NE, Suite 2-500, Washington, DC 200002-8002, Attention: 
Public Affairs--Proposed Amendments.

FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs 
Specialist, (202) 502-4597.

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).
    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 USSC Rules 
of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote 
of at least four voting members is required to promulgate an amendment 
and submit it to Congress. See id. 2.2; 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.
    In summary, the proposed amendments and issues for comment set 
forth in this notice are as follows:
    (1) A proposed amendment to Sec.  1B1.13 (Reduction in Term of 
Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)) to 
implement the First Step Act of 2018 (Pub. L. 115-391) and revise the 
list of circumstances that should be considered extraordinary and 
compelling reasons for sentence reductions under 18 U.S.C. 
3582(c)(1)(A), and related issues for comment;
    (2) A two-part proposed amendment to implement the First Step Act 
of 2018 (Pub. L. 115-391) including (A) (i) amendments to Sec.  5C1.2 
(Limitation on Applicability of Statutory Minimum Sentences in Certain 
Cases) to reflect the broader class of defendants who are eligible for 
safety valve relief under the First Step Act and to provide additional 
conforming changes; (ii) amendments to Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category (Policy Statement)) to make 
conforming changes; (iii) two options for amending Sec. Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) and 2D1.11 (Unlawfully Distributing, Importing, Exporting 
or Possessing a Listed Chemical; Attempt or Conspiracy) in light of the 
proposed revisions to Sec.  5C1.2; and (iv) related issues for comment; 
and (B) amendments to Sec.  2D1.1 to make the guideline's base offense 
levels consistent with the First Step Act's changes to the type of 
prior offenses that trigger enhanced mandatory minimum penalties;
    (3) A multi-part proposed amendment to Sec.  2K2.1 (Unlawful 
Receipt, Possession, or Transportation of Firearms or Ammunition; 
Prohibited Transactions Involving Firearms or Ammunition) to implement 
the Bipartisan Safer Communities Act (Pub. L. 117-159) and make other 
changes that may be warranted to appropriately address firearms 
offenses, including (A) amendments to Appendix A (Statutory Index) and 
two options for amending Sec.  2K2.1 to address (i) the new offenses 
established by the Bipartisan Safer Communities Act and to increase 
penalties for offenses involving straw purchases and firearms 
trafficking as required by the directive contained in the Act; (ii) the 
part of the directive in the Bipartisan Safer Communities Act that 
requires the Commission to ``consider, in particular, an appropriate 
amendment to reflect the intent of Congress that straw purchasers 
without significant criminal histories receive sentences that are 
sufficient to deter participation in such activities and reflect the 
defendant's role and culpability, and any coercion, domestic violence 
survivor history, or other mitigating factors''; (iii) the part of the 
directive in the Bipartisan Safer Communities Act that requires the 
Commission to ``review and amend its guidelines and policy statements 
to reflect the intent of Congress that a person convicted of an offense 
under

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section 932 or 933 of title 18, United States Code, who is affiliated 
with a gang, cartel, organized crime ring, or other such enterprise 
should be subject to higher penalties than an otherwise unaffiliated 
individual''; and (iv) related issues for comment; (B) amendments to 
Sec.  2K2.1 in response to concerns expressed by some commenters that 
the guideline does not adequately address firearms that are not marked 
by a serial number (i.e., ``ghost guns''), and a related issue for 
comment; and (C) a series of issues for comment on possible further 
revisions to Sec.  2K2.1 that may be warranted to appropriately address 
firearms offenses;
    (4) A two-part proposed amendment addressing certain circuit 
conflicts involving Sec.  3E1.1 (Acceptance of Responsibility) and 
Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1), including (A) 
amendments to Sec.  3E1.1 to address circuit conflicts regarding the 
permissible bases for withholding a reduction under Sec.  3E1.1(b), and 
a related issue for comment; and (B) two options for amending Sec.  
4B1.2 to address a circuit conflict concerning whether the definition 
of ``controlled substance offense'' in Sec.  4B1.2(b) only covers 
offenses involving substances controlled by federal law, and a related 
issue for comment;
    (5) A multi-part proposed amendment in response to recently enacted 
legislation, including (A) amendments to Appendix A (Statutory Index) 
and the Commentary to Sec.  2N2.1 (Violations of Statutes and 
Regulations Dealing with Any Food, Drug, Biological Product, Device, 
Cosmetic, Agricultural Product, or Consumer Product) in response to the 
FDA Reauthorization Act of 2017 (Pub. L. 115-52), and to the Commentary 
to Sec.  2N1.1 (Tampering or Attempting to Tamper Involving Risk of 
Death or Bodily Injury) to make a technical correction, and a related 
issue for comment; (B) amendments to Appendix A, Sec.  2G1.1 (Promoting 
a Commercial Sex Act or Prohibited Sexual Conduct with an Individual 
Other than a Minor), and 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), as well as bracketing the possibility of 
amending the Commentary to Sec. Sec.  4B1.5 (Repeat and Dangerous Sex 
Offender Against Minors) and 5D1.2 (Term of Supervised Release), in 
response to the Allow States and Victims to Fight Online Sex 
Trafficking Act of 2017 (Pub. L. 115-164), and related issues for 
comment; (C) amendments to Appendix A and Sec.  2A5.2 (Interference 
with Flight Crew Member or Flight Attendant; Interference with 
Dispatch, Navigation, Operation, or Maintenance of Mass Transportation 
Vehicle), as well as the Commentary to Sec. Sec.  2A2.4 (Obstructing or 
Impeding Officers) and 2X5.2 (Class A Misdemeanors (Not Covered by 
Another Specific Offense Guideline)), in response to the FAA 
Reauthorization Act of 2018 (Pub. L. 115-254), and a related issue for 
comment; (D) amendments to Appendix A and the Commentary to Sec. Sec.  
2B1.1 (Theft, Property Destruction, and Fraud) and 2B4.1 (Bribery in 
Procurement of Bank Loan and Other Commercial Bribery) in response to 
the SUPPORT for Patients and Communities Act (Pub. L. 115-271), and a 
related issue for comment; (E) amendments to Appendix A and the 
Commentary to Sec.  2X5.2 in response to the Amy, Vicky, and Andy Child 
Pornography Victim Assistance Act of 2018 (Pub. L. 115-299), and a 
related issue for comment; (F) amendments to Appendix A and the 
Commentary to Sec.  2H3.1 (Interception of Communications; 
Eavesdropping; Disclosure of Certain Private or Protected Information) 
in response to the Foundations for Evidence-Based Policymaking Act of 
2018 (Pub. L. 115-435), and a related issue for comment; (G) amendments 
to Appendix A and the Commentary to Sec.  2X5.2 in response to the 
National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-
92), and a related issue for comment; (H) amendments to Appendix A and 
the Commentary to Sec.  2B1.1 in response to the Representative Payee 
Fraud Prevention Act of 2019 (Pub. L. 116-126), and a related issue for 
comment; (I) amendments to Appendix A and the Commentary to Sec.  2B1.1 
in response to the Stop Student Debt Relief Scams Act of 2019 (Pub. L. 
116-251), and a related issue for comment; (J) amendments to Appendix A 
in response to the Protecting Lawful Streaming Act of 2020, part of the 
Consolidation Appropriation Act, 2021 (Pub. L. 116-260), and related 
issues for comment; and (K) amendments to Appendix A and the Commentary 
to Sec.  2S1.3 (Structuring Transactions to Evade Reporting 
Requirements; Failure to Report Cash or Monetary Transactions; Failure 
to File Currency and Monetary Instrument Report; Knowingly Filing False 
Reports; Bulk Cash Smuggling; Establishing or Maintaining Prohibited 
Accounts) in response to the William M. (Mac) Thornberry National 
Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283), and a 
related issue for comment;
    (6) A multi-part proposed amendment relating to Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1), including (A) (i) 
amendments Sec.  4B1.2 to eliminate the categorical approach from the 
guidelines by defining ``crime of violence'' and ``controlled substance 
offense'' based upon a list of guidelines, rather than offenses or 
elements of an offense; (ii) conforming changes to the guidelines that 
use the terms ``crime of violence'' and ``controlled substance 
offense'' and define these terms by making specific reference to Sec.  
4B1.2; and (iii) related issues for comment; (B) amendments to Sec.  
4B1.2 and the Commentary to Sec.  2L1.2 (Unlawfully Entering or 
Remaining in the United States) to address the concern that certain 
robbery offenses, such as Hobbs Act robbery, no longer constitute a 
``crime of violence'' under Sec.  4B1.2, as amended in 2016, because 
these offenses do not meet either the generic definition of ``robbery'' 
or the new guidelines definition of ``extortion,'' and related issues 
for comment; (C) two options for amending Sec.  4B1.2 to address two 
circuit conflicts regarding the commentary provision stating that the 
terms ``crime of violence'' and ``controlled substance offense'' 
include the offenses of aiding and abetting, conspiring to commit, and 
attempting to commit a ``crime of violence'' and a ``controlled 
substance offense,'' and related issues for comment; and (D) revisions 
to the definition of ``controlled substance offense'' in Sec.  4B1.2(b) 
to include offenses involving an offer to sell a controlled substance 
and offenses described in 46 U.S.C. 70503(a) and 70506(b), and a 
related issue for comment;
    (7) A multi-part proposed amendment relating to criminal history, 
including (A) three options for amending the Guidelines Manual to 
address the impact of ``status points'' under subsection (d) of section 
4A1.1 (Criminal History Category), and related issues for comment; (B) 
(i) two options for establishing a new Chapter Four guideline, at Sec.  
4C1.1 (Adjustment for Certain Zero-Point Offenders), that would provide 
an offense level decrease for offenders with zero criminal history 
points who meet certain criteria; (ii) amendments to the Commentary to 
Sec.  5C1.1 (Imposition of a Term of Imprisonment) to address the 
alternatives to incarceration available to offenders with zero criminal 
history points who receive an adjustment under the proposed Sec.  
4C1.1, and conforming changes to Sec.  4A1.3 (Departures Based on

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Inadequacy of Criminal History Category (Policy Statement)) and Chapter 
One, Part A, Subpart 1(4)(d) (Probation and Split Sentences); and (iii) 
related issues for comment; (C) amendments to the Commentary to Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category 
(Policy Statement)) to include sentences resulting from possession of 
marihuana offenses as an example of when a downward departure from the 
defendant's criminal history may be warranted, and related issues for 
comment;
    (8) A proposed amendment to Sec.  1B1.3 (Relevant Conduct (Factors 
that Determine the Guideline Range)) and Sec.  6A1.3 (Resolution of 
Disputed Factors (Policy Statement)) to generally limit the use of 
acquitted conduct for purposes of determining the guideline range, 
except when such conduct was admitted by the defendant during a guilty 
plea colloquy or was found by the trier of fact beyond a reasonable 
doubt to establish, in whole or in part, the instant offense of 
conviction, and related issues for comment;
    (9) A two-part proposed amendment to certain guidelines applicable 
to sexual abuse offenses, including (A) amendments to Appendix A 
(Statutory Index), Sec.  2A3.3 (Criminal Sexual Abuse of a Ward or 
Attempt to Commit Such Acts), and the Commentary to Sec.  2H1.1 
(Offenses Involving Individual Rights) in response to the Violence 
Against Women Act Reauthorization Act of 2022, which was part of the 
Consolidated Appropriations Act, 2022 (Pub. L. 117-103), and related 
issues for comment; and (B) amendments to Sec.  2A3.3 to address 
concerns regarding the increasing number of cases involving sexual 
abuse committed by law enforcement or correctional personnel against 
victims in their custody, care, or supervision, and related issues for 
comment;
    (10) Issues for comment regarding a potential study of federal 
alternative-to-incarceration court programs and possible amendments to 
the Guidelines Manual to address such programs;
    (11) A proposed amendment to Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) to address offenses 
involving ``fake pills'' (i.e., illicitly manufactured pills 
represented or marketed as legitimate pharmaceutical pills) containing 
fentanyl or fentanyl analogue, and a related issue for comment;
    (12) A two-part proposed amendment addressing miscellaneous 
guideline issues, including (A) amendments to Sec.  3D1.2 (Grouping of 
Closely Related Counts) to address the interaction between 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) 
and Sec.  3D1.2(d); and (B) amendments to the Commentary to Sec.  5F1.7 
(Shock Incarceration Program (Policy Statement)) to reflect the fact 
that the Bureau of Prisons no longer operates a shock incarceration 
program; and
    (13) A multi-part proposed amendment to make technical and other 
non-substantive changes to the Guidelines Manual, including (A) 
technical changes to provide updated references to certain sections in 
the United States Code that were redesignated in legislation; (B) 
technical changes to reflect the editorial reclassification of certain 
sections in the United States Code; (C) technical changes throughout 
the Commentary to Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) to, among other things, 
reorganize in alphabetical order the controlled substances contained in 
the tables therein to make them more user-friendly; (D) technical 
changes to the commentary of several guidelines to provide references 
to the specific applicable provisions of 18 U.S.C. 876; (E) technical 
changes to the commentary of several guidelines in Chapter Eight 
(Sentencing of Organizations); and (F) clerical changes to correct 
typographical errors in several guidelines, policy statements, and 
commentary.
    In addition, 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.
    The text of the proposed amendments and related issues for comment 
are set forth below. Additional information pertaining to the proposed 
amendments and issues for comment described in this notice may be 
accessed through the Commission's website at www.ussc.gov.
    Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice 
and Procedure 2.2, 4.3, 4.4.

Carlton W. Reeves,
Chair.

Proposed Amendments to the Sentencing Guidelines, Policy Statements, 
and Official Commentary

1. First Step Act--Reduction in Term of Imprisonment Under 18 U.S.C. 
3582(c)(1)(A)

    Synopsis of Proposed Amendment: This proposed amendment responds to 
the First Step Act of 2018, Public Law 115-391 (Dec. 21, 2018) (``First 
Step Act'' or ``Act''), which contains numerous provisions related to 
sentencing, prison programming, recidivism reduction efforts, and 
reentry procedures. Specifically, the sentencing reform provisions of 
the Act (1) amended the sentencing modification procedures set forth in 
18 U.S.C. 3582(c)(1)(A) to allow a defendant to file a motion seeking a 
reduction in the defendant's term of imprisonment under certain 
circumstances; (2) reduced certain enhanced penalties imposed pursuant 
to 21 U.S.C. 851 for some repeat offenders and changed the prior 
offenses that qualify for such enhanced penalties; (3) broadened the 
eligibility criteria of the ``safety valve'' provision at 18 U.S.C. 
3553(f); (4) limited the ``stacking'' of certain mandatory minimum 
penalties imposed under 18 U.S.C. 924(c) for multiple offenses that 
involve using, carrying, possessing, brandishing, or discharging a 
firearm in furtherance of a crime of violence or drug trafficking 
offense; and (5) allowed for retroactive application of the Fair 
Sentencing Act of 2010. Revisions to the Guidelines Manual may be 
appropriate to implement the Act's changes to 18 U.S.C. 3582(c)(1)(A).
    The Sentencing Reform Act of 1984 (``SRA'') established a system of 
determinate sentencing, prohibiting a court from modifying a term of 
imprisonment once it had been imposed

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except in certain instances specified in section 3582(c) of title 18, 
United States Code. One of those instances is set forth in 18 U.S.C. 
3582(c)(1)(A), which authorizes a court to reduce the term of 
imprisonment of a defendant, after considering the factors in 18 U.S.C. 
3553(a) to the extent they are applicable, if ``extraordinary and 
compelling reasons'' warrant such a reduction or the defendant is at 
least 70 years of age and meets certain other criteria. Such a 
reduction must be consistent with applicable policy statements issued 
by the Sentencing Commission. See 18 U.S.C. 3582(c)(1).
    Prior to the First Step Act, a court was authorized to grant a 
reduction in a defendant's term of imprisonment under section 
3582(c)(1)(A) only ``upon motion of the Director of the Bureau of 
Prisons.'' Section 603(b) of the First Step Act amended 18 U.S.C. 
3582(c)(1)(A) to allow a defendant to file a motion seeking a sentence 
reduction after the defendant has fully exhausted all administrative 
rights to appeal a failure of the Bureau of Prisons (``BOP'') to bring 
a motion on the defendant's behalf or the lapse of 30 days from the 
receipt of such a request by the warden of the defendant's facility, 
whichever is earlier.
    Section 3582(c)(1)(A) does not define the phrase ``extraordinary 
and compelling reasons.'' Instead, the SRA directs that ``[t]he 
Commission, in promulgating general policy statements regarding the 
sentencing modification provisions in section 3582(c)(1)(A) of title 
18, shall describe what should be considered extraordinary and 
compelling reasons for sentence reduction, including the criteria to be 
applied and a list of specific examples.'' 28 U.S.C. 994(t). Section 
994(t) also directs that ``[r]ehabilitation of the defendant alone 
shall not be considered an extraordinary and compelling reason.'' Id. 
The SRA provides the Commission with the authority to set the policy 
regarding what reasons should qualify as ``extraordinary and compelling 
reasons'' for a sentence reduction under section 3582(c)(1)(A) and the 
courts with the authority to find that the ``extraordinary and 
compelling reasons warrant such a reduction . . . and that such 
reduction is consistent with applicable policy statements issued by the 
Sentencing Commission.'' See 28 U.S.C. 994(a)(2)(C), 994(t), & 995(b); 
18 U.S.C. 3582(c)(1)(A).
    The Commission implemented the section 994(t) directive by 
promulgating the policy statement at Sec.  1B1.13 (Reduction in Term of 
Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)). See 
U.S. Sent'g Comm'n, Guidelines Manual, Sec.  1B1.13 (Nov. 2021). 
Currently, Sec.  1B1.13 provides only for motions filed by the Director 
of the BOP and does not account for motions filed by a defendant under 
the amended statute. The policy statement describes the circumstances 
that constitute ``extraordinary and compelling reasons'' in the 
Commentary to Sec.  1B1.13. Application Note 1(A) through (C) provides 
for three categories of extraordinary and compelling reasons, i.e., 
``Medical Condition of the Defendant,'' ``Age of the Defendant,'' and 
``Family Circumstances.'' See USSG Sec.  1B1.13, comment. (n.1(A)-(C)). 
Application Note 1(D) provides that the Director of the BOP may 
determine whether there exists in a defendant's case ``other reasons'' 
that are extraordinary and compelling ``other than, or in combination 
with,'' the reasons described in Application Note 1(A) through (C). 
USSG Sec.  1B1.13, comment. (n.1(D)).
    The proposed amendment would implement the First Step Act's 
relevant provisions by amending Sec.  1B1.13 and its accompanying 
commentary. Specifically, the proposed amendment would revise the 
policy statement to reflect that 18 U.S.C. 3582(c)(1)(A), as amended by 
the First Step Act, authorizes a defendant to a file a motion seeking a 
sentence reduction.
    The proposed amendment would also revise the list of 
``extraordinary and compelling reasons'' in Sec.  1B1.13 in several 
ways.
    First, the proposed amendment would move the list of extraordinary 
and compelling reasons from the Commentary to the guideline itself as a 
new subsection (b). The new subsection (b) would set forth the same 
three categories of extraordinary and compelling reasons currently 
found in Application Note 1(A) through (C) (with the revisions 
described below), add two new categories, and revise the ``Other 
Reasons'' category currently found in Application Note 1(D). New 
subsection (b) would also provide that extraordinary and compelling 
reasons exist under any of the circumstances, or a combination thereof, 
described in such categories.
    Second, the proposed amendment would add two new subcategories to 
the ``Medical Condition of the Defendant'' category at new subsection 
(b)(1). The first new subcategory is for a defendant suffering from a 
medical condition that requires long-term or specialized medical care, 
without which the defendant is at risk of serious deterioration in 
health or death, that is not being provided in a timely or adequate 
manner. The other new subcategory is for a defendant who presents the 
following circumstances: (1) the defendant is housed at a correctional 
facility affected or at risk of being affected by an ongoing outbreak 
of infectious disease or an ongoing public health emergency declared by 
the appropriate governmental authority; (2) the defendant is at 
increased risk of suffering severe medical complications or death as a 
result of exposure to the ongoing outbreak of infectious disease or 
ongoing public health emergency; and (3) such risk cannot be mitigated 
in a timely or adequate manner.
    Third, the proposed amendment would modify the ``Family 
Circumstances'' category at new subsection (b)(3) in three ways. First, 
the proposed amendment would revise the current subcategory relating to 
the death or incapacitation of the caregiver of a defendant's minor 
child by making it also applicable to a defendant's child who is 18 
years of age or older and incapable of self-care because of a mental or 
physical disability or a medical condition. Second, the proposed 
amendment would add a new subcategory to the ``Family Circumstances'' 
category for cases where a defendant's parent is incapacitated and the 
defendant would be the only available caregiver for the parent. Third, 
the proposed amendment brackets the possibility of adding a more 
general subcategory applicable if the defendant presents circumstances 
similar to those listed in the other subcategories of ``Family 
Circumstances'' involving any other immediate family member or an 
individual whose relationship with the defendant is similar in kind to 
that of an immediate family member.
    Fourth, the proposed amendment brackets the possibility of adding 
two new categories: (1) Victim of Assault (``The defendant was a victim 
of sexual assault or physical abuse resulting in serious bodily injury 
committed by a correctional officer or other employee or contractor of 
the Bureau of Prisons while in custody.''); and (2) Changes in Law 
(``The defendant is serving a sentence that is inequitable in light of 
changes in the law.'').
    Fifth, the proposed amendment would revise the provision currently 
found in Application Note 1(D) of Sec.  1B1.13. Three options are 
provided. All three options would redesignate this category as ``Other 
Circumstances'' and expand the scope of the category to apply to all 
motions filed under 18 U.S.C. 3582(c)(1)(A), regardless of whether such 
motion is filed by the Director of the BOP or the defendant. Option 1 
would provide that this

[[Page 7184]]

category of extraordinary and compelling reasons applies in cases where 
a defendant presents any other circumstance or a combination of 
circumstances similar in nature and consequence to any of the 
circumstances described in paragraphs (1) through [(3)][(4)][(5)] of 
Sec.  1B1.13. Option 2 would provide that that this category applies 
if, as a result of changes in the defendant's circumstances [or 
intervening events that occurred after the defendant's sentence was 
imposed], it would be inequitable to continue the defendant's 
imprisonment or require the defendant to serve the full length of the 
sentence. Option 3 would track the language in current Application Note 
1(D) of Sec.  1B1.13 and apply if the defendant presents an 
extraordinary and compelling reason other than, or in combination with, 
the circumstances described in paragraphs (1) through [(3)][(4)][(5)].
    Finally, the proposed amendment would move current Application Note 
3 (stating that, pursuant to 28 U.S.C. 994(t), rehabilitation of a 
defendant is not, by itself, an extraordinary and compelling reason for 
purposes of Sec.  1B1.13) into the guideline as a new subsection (c). 
In addition, as conforming changes, the proposed amendment would delete 
application notes 2 (concerning the foreseeability of extraordinary and 
compelling reasons), 4 (concerning a motion by the Director of the 
Bureau of Prisons), and 5 (concerning application of subdivision 3), 
and make a minor technical change to the Background commentary.
    Issues for comment are also provided.

Proposed Amendment

    Section 1B1.13 is amended--
    by inserting at the beginning the following new heading: ``(a) In 
General.--'';
    by striking ``Bureau of Prisons under'' and inserting ``Bureau of 
Prisons or the defendant pursuant to'';
    and inserting at the end the following:
    ``(b) Extraordinary and Compelling Reasons.--Extraordinary and 
compelling reasons exist under any of the following circumstances or a 
combination thereof:
    (1) Medical Circumstances of the Defendant.--
    (A) The defendant is suffering from a terminal illness (i.e., a 
serious and advanced illness with an end of life trajectory). A 
specific prognosis of life expectancy (i.e., a probability of death 
within a specific time period) is not required. Examples include 
metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), 
end-stage organ disease, and advanced dementia.
    (B) The defendant is--
    (i) suffering from a serious physical or medical condition,
    (ii) suffering from a serious functional or cognitive impairment, 
or
    (iii) experiencing deteriorating physical or mental health because 
of the aging process,

that substantially diminishes the ability of the defendant to provide 
self-care within the environment of a correctional facility and from 
which he or she is not expected to recover.
    (C) The defendant is suffering from a medical condition that 
requires long-term or specialized medical care, without which the 
defendant is at risk of serious deterioration in health or death, that 
is not being provided in a timely or adequate manner.
    (D) The defendant presents the following circumstances--
    (i) the defendant is housed at a correctional facility affected or 
at risk of being affected by (I) an ongoing outbreak of infectious 
disease, or (II) an ongoing public health emergency declared by the 
appropriate federal, state, or local authority;
    (ii) the defendant is at increased risk of suffering severe medical 
complications or death as a result of exposure to the ongoing outbreak 
of infectious disease or the ongoing public health emergency described 
in clause (i); and
    (iii) such risk cannot be mitigated in a timely or adequate manner.
    (2) Age of the Defendant.--The defendant (A) is at least 65 years 
old; (B) is experiencing a serious deterioration in physical or mental 
health because of the aging process; and (C) has served at least 10 
years or 75 percent of his or her term of imprisonment, whichever is 
less.
    (3) Family Circumstances of the Defendant.--
    (A) The death or incapacitation of the caregiver of the defendant's 
minor child or the defendant's child who is 18 years of age or older 
and incapable of self-care because of a mental or physical disability 
or a medical condition.
    (B) The incapacitation of the defendant's spouse or registered 
partner when the defendant would be the only available caregiver for 
the spouse or registered partner.
    (C) The incapacitation of the defendant's parent when the defendant 
would be the only available caregiver for the parent.
    [(D) The defendant presents circumstances similar to those listed 
in paragraphs (3)(A) through (3)(C) involving any other immediate 
family member or an individual whose relationship with the defendant is 
similar in kind to that of an immediate family member.]
    [(4) Victim of Assault.--The defendant was a victim of sexual 
assault or physical abuse resulting in serious bodily injury committed 
by a correctional officer or other employee or contractor of the Bureau 
of Prisons while in custody.]
    [(5) Changes in Law.--The defendant is serving a sentence that is 
inequitable in light of changes in the law.]
    [Option 1:
    (6) Other Circumstances.--The defendant presents any other 
circumstance or a combination of circumstances similar in nature and 
consequence to any of the circumstances described in paragraphs (1) 
through [(3)][(4)][(5)].]
    [Option 2:
    (6) Other Circumstances.--As a result of changes in the defendant's 
circumstances [or intervening events that occurred after the 
defendant's sentence was imposed], it would be inequitable to continue 
the defendant's imprisonment or require the defendant to serve the full 
length of the sentence.]
    [Option 3:
    (6) Other Circumstances.--The defendant presents an extraordinary 
and compelling reason other than, or in combination with, the 
circumstances described in paragraphs (1) through [(3)][(4)][(5)].]
    (c) Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. 994(t), 
rehabilitation of the defendant is not, by itself, an extraordinary and 
compelling reason for purposes of this policy statement.''.
    The Commentary to Sec.  1B1.13 captioned ``Application Notes'' is 
amended by striking it as follows:
    ``Application Notes:
    1. Extraordinary and Compelling Reasons.--Provided the defendant 
meets the requirements of subdivision (2), extraordinary and compelling 
reasons exist under any of the circumstances set forth below:
    (A) Medical Condition of the Defendant.--
    (i) The defendant is suffering from a terminal illness (i.e., a 
serious and advanced illness with an end of life trajectory). A 
specific prognosis of life expectancy (i.e., a probability of death 
within a specific time period) is not required. Examples include 
metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), 
end-stage organ disease, and advanced dementia.
    (ii) The defendant is--
    (I) suffering from a serious physical or medical condition,
    (II) suffering from a serious functional or cognitive impairment, 
or

[[Page 7185]]

    (III) experiencing deteriorating physical or mental health because 
of the aging process,

that substantially diminishes the ability of the defendant to provide 
self-care within the environment of a correctional facility and from 
which he or she is not expected to recover.
    (B) Age of the Defendant.--The defendant (i) is at least 65 years 
old; (ii) is experiencing a serious deterioration in physical or mental 
health because of the aging process; and (iii) has served at least 10 
years or 75 percent of his or her term of imprisonment, whichever is 
less.
    (C) Family Circumstances.--
    (i) The death or incapacitation of the caregiver of the defendant's 
minor child or minor children.
    (ii) The incapacitation of the defendant's spouse or registered 
partner when the defendant would be the only available caregiver for 
the spouse or registered partner.
    (D) Other Reasons.--As determined by the Director of the Bureau of 
Prisons, there exists in the defendant's case an extraordinary and 
compelling reason other than, or in combination with, the reasons 
described in subdivisions (A) through (C).
    2. Foreseeability of Extraordinary and Compelling Reasons.--For 
purposes of this policy statement, an extraordinary and compelling 
reason need not have been unforeseen at the time of sentencing in order 
to warrant a reduction in the term of imprisonment. Therefore, the fact 
that an extraordinary and compelling reason reasonably could have been 
known or anticipated by the sentencing court does not preclude 
consideration for a reduction under this policy statement.
    3. Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. 994(t), 
rehabilitation of the defendant is not, by itself, an extraordinary and 
compelling reason for purposes of this policy statement.
    4. Motion by the Director of the Bureau of Prisons.--A reduction 
under this policy statement may be granted only upon motion by the 
Director of the Bureau of Prisons pursuant to 18 U.S.C. 3582(c)(1)(A). 
The Commission encourages the Director of the Bureau of Prisons to file 
such a motion if the defendant meets any of the circumstances set forth 
in Application Note 1. The court is in a unique position to determine 
whether the circumstances warrant a reduction (and, if so, the amount 
of reduction), after considering the factors set forth in 18 U.S.C. 
3553(a) and the criteria set forth in this policy statement, such as 
the defendant's medical condition, the defendant's family 
circumstances, and whether the defendant is a danger to the safety of 
any other person or to the community.
    This policy statement shall not be construed to confer upon the 
defendant any right not otherwise recognized in law.
    5. Application of Subdivision (3).--Any reduction made pursuant to 
a motion by the Director of the Bureau of Prisons for the reasons set 
forth in subdivisions (1) and (2) is consistent with this policy 
statement.''.
    The Commentary to Sec.  1B1.13 captioned ``Background'' is amended 
by striking ``the Commission is authorized'' and inserting ``the 
Commission is required''.

Issues for Comment

    1. The proposed amendment would revise the list of ``extraordinary 
and compelling reasons'' in Sec.  1B1.13 (Reduction in Term of 
Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)) in 
several ways. The Commission invites comment on whether the proposed 
amendment--in particular proposed subsections (b)(5) and (6)--exceeds 
the Commission's authority under 28 U.S.C. 994(a) and (t), or any other 
provision of federal law.
    2. The proposed amendment would make changes to Sec.  1B1.13 
(Reduction in Term of Imprisonment Under 18 U.S.C. 3582(c)(1)(A) 
(Policy Statement)) and its corresponding commentary to implement the 
First Step Act of 2018, Public Law 115-391 (Dec. 21, 2018). The 
Commission seeks general comment on the proposed changes and whether 
the Commission should make any different or additional changes to 
implement the Act.
    3. The proposed amendment would revise the categories of 
circumstances in which ``extraordinary and compelling reasons'' exist 
under the Commission's policy statement at Sec.  1B1.13. The Commission 
adopted the policy statement at Sec.  1B1.13 to implement the directive 
in 28 U.S.C. 994(t). As noted above, the directive requires the 
Commission to ``describe what should be considered extraordinary and 
compelling reasons for sentence reduction, including the criteria to be 
applied and a list of specific examples.'' The Commission also has the 
authority to promulgate general policy statements regarding the 
application of the guidelines or other aspects of sentencing that in 
the view of the Commission would further the purposes of sentencing (18 
U.S.C. 3553(a)(2)), including the appropriate use of the sentence 
modification provisions set forth in 18 U.S.C. 3582(c). See 28 U.S.C. 
994(a)(2)(C).
    The Commission seeks comment on whether the proposed categories of 
circumstances are appropriate and provide clear guidance to the courts 
and the Bureau of Prisons. Should the Commission further define and 
expand the categories? Should the Commission provide additional or 
different criteria or examples of circumstances that constitute 
``extraordinary and compelling reasons''? If so, what specific criteria 
or examples should the Commission provide? Should the Commission 
consider an altogether different approach for describing ``what should 
be considered extraordinary and compelling reasons for sentence 
reduction''?
    4. The proposed amendment brackets the possibility of adding a new 
category of ``extraordinary and compelling reasons'' to Sec.  1B1.13 
relating to defendants who are victims of sexual assault or physical 
abuse resulting in serious bodily injury committed by a correctional 
officer or other employee or contractor of the Bureau of Prisons while 
in custody. The Commission seeks comment on whether this provision 
should be expanded to include defendants who have been victims of 
sexual assault or physical abuse resulting in serious bodily injury 
committed by another inmate.
    5. Section 1B1.10 (Reduction in Term of Imprisonment as a Result of 
Amended Guideline Range (Policy Statement)) sets forth the applicable 
policy statement for determining in what circumstances and to what 
extent a reduction in a term of imprisonment as a result of an amended 
guideline range may be granted. In Dillon v. United States, 560 U.S. 
817 (2010), the Supreme Court held that proceedings under 18 U.S.C. 
3582(c)(2) are not governed by United States v. Booker, 543 U.S. 220 
(2005), and that Sec.  1B1.10 remains binding on courts in such 
proceedings.
    The Commission seeks comment on whether the proposed amendment--in 
particular proposed subsections (b)(5) and (6)--is in tension with the 
Commission's determinations regarding retroactivity of guideline 
amendments under Sec.  1B1.10. If so, how should the Commission resolve 
this tension? Should the Commission clarify the interaction between 
Sec.  1B1.10 and Sec.  1B1.13? If so, how?

2. First Step Act--Drug Offenses

    Synopsis of Proposed Amendment: This proposed amendment responds to 
the First Step Act of 2018, Public Law 115-391 (Dec. 21, 2018) (``First 
Step

[[Page 7186]]

Act'' or ``Act''), which contains numerous provisions related to 
sentencing, prison programming, recidivism reduction efforts, and 
reentry procedures. Although Commission action is not necessary to 
implement most of the First Step Act, revisions to the Guidelines 
Manual may be appropriate to implement the Act's changes to the 
eligibility criteria of the ``safety valve'' provision at 18 U.S.C. 
3553(f), and the recidivist penalties for drug offenders at 21 U.S.C. 
841(b) and 960(b). The proposed amendment contains two parts (Parts A 
and B). The Commission is considering whether to promulgate either or 
both of these parts, as they are not mutually exclusive.

(A) Safety Valve

    Section 3553(f) of title 18, United States Code, allows a court to 
impose a sentence without regard to any statutory minimum penalty if it 
finds that a defendant meets certain criteria. As originally enacted, 
the safety valve applied only to offenses under 21 U.S.C. 841, 844, 
846, 960, and 963 and to defendants who, among other things, had not 
more than one criminal history point, as determined under the 
guidelines. When it first enacted the safety valve, Congress directed 
the Commission to promulgate or amend guidelines and policy statements 
to ``carry out the purposes of [section 3553(f)].'' See Violent Crime 
Control and Law Enforcement Act of 1994, Public Law 103-322, 80001(b). 
The Commission implemented the directive by incorporating the statutory 
text of section 3553(f) into the guidelines at Sec.  5C1.2 (Limitation 
on Applicability of Statutory Minimum Sentences in Certain Cases). Two 
other guidelines provisions, subsection (b)(18) of Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) and subsection (b)(6) of Sec.  2D1.11 (Unlawfully 
Distributing, Importing, Exporting or Possessing a Listed Chemical; 
Attempt or Conspiracy), currently provide a 2-level reduction in a 
defendant's offense level if the defendant meets the criteria in 
paragraphs (1) through (5) of Sec.  5C1.2(a).
    Section 402 of the First Step Act expanded the safety valve 
provision at 18 U.S.C. 3553(f) in two ways. First, the Act extended the 
applicability of the safety valve to maritime offenses under 46 U.S.C. 
70503 and 70506. Second, the Act amended section 3553(f)(1) to broaden 
the eligibility criteria of the safety valve to include defendants who 
do not have: (1) ``more than 4 criminal history points, excluding any 
criminal history points resulting from a 1-point offense, as determined 
under the sentencing guidelines''; (2) a ``prior 3-point offense, as 
determined under the sentencing guidelines''; and (3) a ``prior 2-point 
violent offense, as determined under the sentencing guidelines.'' The 
Act defines ``violent offense'' as a ``crime of violence,'' as defined 
in 18 U.S.C. 16, that is punishable by imprisonment. In addition, the 
First Step Act incorporated into section 3553(f) a provision 
instructing that ``[i]nformation disclosed by a defendant under this 
subsection may not be used to enhance the sentence of the defendant 
unless the information relates to a violent offense.''
    Following the enactment of the First Step Act, circuit courts have 
disagreed about how the word ``and'' connecting subsections (A) through 
(C) in section 3553(f)(1) operates. The Fifth, Sixth, Seventh, and 
Eighth Circuits have held that section 3553(f)(1) should be read to 
exclude a defendant who meets any single disqualifying condition listed 
in subsections (A) through (C). See United States v. Palomares, 52 
F.4th 640, 642 (5th Cir. 2022) (``To be eligible for safety valve 
relief, a defendant must show that she does not have more than 4 
criminal history points, does not have a 3-point offense, and does not 
have a 2-point violent offense.''); United States v. Haynes, 55 F.4th 
1075 (6th Cir. 2022) (same); United States v. Pace, 48 F.4th 741, 756 
(7th Cir. 2022) (``[A] defendant who meets any one of subsections (A), 
(B), or (C) does not qualify for safety-valve relief.''); United States 
v. Pulsifer, 39 F.4th 1018, 1022 (8th Cir. 2022) (``A court will find 
that Sec.  3553(f)(1) is satisfied only when the defendant (A) does not 
have more than four criminal history points, (B) does not have a prior 
three-point offense, and (C) does not have a prior two-point violent 
offense.''). Specifically, the Eighth Circuit concluded that the word 
``and'' is conjunctive in a ``distributive'' sense rather than in a 
``joint'' sense. Thus, the phrase ``does not have'' is distributed 
across all three subsections (i.e., should be read as repeated before 
each of the three conditions) such that a defendant is ineligible for 
safety valve relief if the defendant meets any one of the three 
conditions. Pulsifer, 39 F.4th at 1022 (``The distributive reading 
therefore gives meaning to each subsection in Sec.  3553(f)(1), and we 
conclude that it is the better reading of the statute.''); see also 
Palomares, 52 F.4th at 642 (``We agree with the Eighth Circuit that 
Congress's use of an em-dash following `does not have' is best 
interpreted to `distribute' that phrase to each following 
subsection.''); Haynes, 55 F.4th at 1080 (``We agree with the Eighth 
Circuit that, of the interpretations on offer here, `[o]nly the 
distributive interpretation avoids surplusage.' '').
    The Ninth and Eleventh Circuits, in contrast, have held that the 
``and'' connecting subparagraphs (A), (B), and (C) of section 
3553(f)(1) is ``conjunctive'' and joins together the enumerated 
characteristics in those provisions. United States v. Lopez, 998 F.3d 
431 (9th Cir. 2021); United States v. Garcon, 54 F.4th 1274 (11th Cir. 
2022) (en banc). Accordingly, a defendant ``must have (A) more than 
four criminal-history points, (B) a prior three-point offense, and (C) 
a prior two-point violent offense, cumulatively,'' to be disqualified 
from safety valve relief under section 3553(f). Lopez, 998 F.3d at 433. 
Unlike the Fifth, Sixth, and Eighth Circuits, the Ninth and Eleventh 
Circuits interpret the word ``and'' to be conjunctive in a ``joint,'' 
rather than ``distributive,'' sense.
    Using fiscal year 2021 data, Commission analysis estimated that of 
17,520 drug trafficking offenders, 11,866 offenders meet the non-
criminal history requirements of the safety valve (18 U.S.C. 
3553(f)(2)-(5)). Of those 11,866 offenders, 5,768 offenders have no 
more than one criminal history point and would be eligible under the 
unamended pre-First Step Act criminal history requirement. Under a 
disjunctive interpretation of the expanded criminal history provision, 
1,987 offenders would become eligible. The remaining 4,111 offenders 
would be ineligible. In comparison, under the Ninth Circuit's 
conjunctive interpretation of the expanded criminal history provision, 
5,778 offenders would become eligible. The remaining 320 offenders 
would be ineligible.
    Part A of the proposed amendment would implement the provisions of 
the First Step Act expanding the applicability of the safety valve 
provision by amending Sec.  5C1.2 and its corresponding commentary. 
Specifically, it would revise Sec.  5C1.2(a) to reflect the broader 
class of defendants who are eligible for safety valve relief under the 
Act. Part A of the proposed amendment would also bracket a possible 
revision to the minimum offense level that Sec.  5C1.2(b) requires for 
certain offenders. Revision of this provision, which implements a 
directive to the Commission in section 80001(b) of the Violent Crime 
Control and Law Enforcement Act of 1994, Public Law 103-222 (Sept. 13, 
1994), may be appropriate given the expanded class of defendants who 
would qualify for safety

[[Page 7187]]

valve relief under the proposed revisions to Sec.  5C1.2(a).
    In addition, Part A of the proposed amendment would make changes to 
the Commentary to Sec.  5C1.2. First, it would revise Application Note 
1 by deleting the current language and adding the statutory definition 
for the term ``violent offense.'' Second, Part A of the proposed 
amendment brackets the possibility of adding a new application note 
stating that ``[i]n determining whether the defendant meets the 
criteria in subsection (a)(1), refer to Sec.  4A1.1 (Criminal History 
Category) and Sec.  4A1.2 (Definitions and Instructions for Computing 
Criminal History), read together, before application of subsection (b) 
of Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category).'' Third, Part A of the proposed amendment would also revise 
Application Note 7, to implement the new statutory provision stating 
that information disclosed by a defendant pursuant to 18 U.S.C. 3553(f) 
may not be used to enhance the defendant's sentence unless the 
information relates to a violent offense. Finally, it would make 
additional technical changes to the rest of the Commentary by 
renumbering and inserting headings at the beginning of certain notes.
    Part A of the proposed amendment would also make conforming changes 
to Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)), which makes a specific reference to the 
number of criminal history points allowed by Sec.  5C1.2(a)(1).
    Finally, Part A of the proposed amendment would also make changes 
to Sec.  2D1.1 and Sec.  2D1.11, as the 2-level reductions in both 
guidelines are tethered to the eligibility criteria of paragraphs (1)-
(5) of Sec.  5C1.2(a). It provides two options for amending Sec.  
2D1.1(b)(18) and Sec.  2D1.11(b)(6).
    Option 1 would not make any substantive changes to Sec.  
2D1.1(b)(18) and Sec.  2D1.11(b)(6), allowing their 2-level reductions 
to automatically apply to any defendant who meets the revised criteria 
of Sec.  5C1.2. Because Sec.  5C1.2(a)(1) would closely track the 
language in 18 U.S.C. 3553(f)(1), as amended by the First Step Act, the 
``and'' used to set forth the criminal history criteria in Sec.  5C1.2 
might be read by some courts as disjunctive (e.g., the courts in the 
Fifth, Sixth, Seventh, and Eighth Circuits) and by other courts as 
conjunctive (e.g., the courts in the Ninth and Eleventh Circuits). 
Option 1 would not resolve the circuit conflict for purposes of Sec.  
2D1.1(b)(18) and Sec.  2D1.11(b)(6).
    Option 2 would amend Sec.  2D1.1(b)(18) and Sec.  2D1.11(b)(6) to 
provide that their 2-level reductions apply to all defendants who meet 
the criteria in Sec.  5C1.2(a)(2)-(5). It would also incorporate into 
those provisions the same criminal history criteria from revised Sec.  
5C1.2(a)(1) but set forth the criteria disjunctively, consistent with 
the approach of the Fifth, Sixth, Seventh, and Eighth Circuits. As a 
result, a defendant would not be eligible for the 2-level reduction in 
Sec.  2D1.1(b)(18) or Sec.  2D1.11(b)(6) if the defendant presents any 
of the disqualifying conditions relating to criminal history.
    Both options also would make changes to the Commentary to 
Sec. Sec.  2D1.1 and 2D1.11 that correspond to the applicable 
provisions of the revised Commentary to Sec.  5C1.2.
    Part A of the proposed amendment also includes issues for comment.

(B) Recidivist Penalties for Drug Offenders

    The most common drug offenses that carry mandatory minimum 
penalties are set forth in 21 U.S.C. 841 and 960. Under both 
provisions, the mandatory minimum penalties are tied to the quantity 
and type of controlled substance involved in an offense. Enhanced 
mandatory minimum penalties are set forth in 21 U.S.C. 841(b) and 
960(b) for defendants whose instant offense resulted in death or 
serious bodily injury, or who have prior convictions for certain 
specified offenses. Greater enhanced mandatory minimum penalties are 
provided for those defendants whose instant offense resulted in death 
or serious bodily injury and who have a qualifying prior conviction.
    Prior to the First Step Act, all of the recidivist penalty 
provisions within sections 841(b) and 960(b) provided for an enhanced 
mandatory minimum penalty if a defendant had one or more convictions 
for a prior ``felony drug offense,'' which is defined in 21 U.S.C. 
802(44) as ``an offense that is punishable by imprisonment for more 
than one year under any law of the United States or of a State or 
foreign country that prohibits or restricts conduct relating to 
narcotic drugs, marihuana, anabolic steroids, or depressant or 
stimulant substances.'' Section 401 of the Act both narrowed and 
expanded the type of prior offenses that trigger enhanced mandatory 
minimum penalties under 21 U.S.C. 841(b)(1)(A), 841(b)(1)(B), 
960(b)(1), and 960(b)(2). The Act narrowed the triggering prior 
offenses for these statutory provisions by replacing the term ``felony 
drug offense'' with ``serious drug felony.'' The term ``serious drug 
felony'' is defined in 21 U.S.C. 802(57) as ``an offense described in 
[18 U.S.C. 924(e)(2)] for which--(A) the offender served a term of 
imprisonment of more than 12 months; and (B) the offender's release 
from any term of imprisonment was within 15 years of the commencement 
of the instant offense.'' The Act also expanded the class of triggering 
offenses for the same statutory provisions by adding ``serious violent 
felony.'' The term ``serious violent felony'' is defined in 21 U.S.C. 
802(58) as ``(A) an offense described in [18 U.S.C. 3559(c)(2)] for 
which the offender served a term of imprisonment of more than 12 
months; and (B) any offense that would be a felony violation of [18 
U.S.C. 113], if the offense were committed in the special maritime and 
territorial jurisdiction of the United States, for which the offender 
served a term of imprisonment of more than 12 months.'' The First Step 
Act did not amend 21 U.S.C. 841(b)(1)(C), 841(b)(1)(E), 960(b)(3), or 
960(b)(5), which still provide for enhanced mandatory minimum penalties 
if a defendant was convicted of a prior ``felony drug offense.''
    Part B of the proposed amendment would revise subsection (a) of 
Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy) to make the guideline's base offense 
levels consistent with the First Step Act's changes to the type of 
prior offenses that trigger enhanced mandatory minimum penalties. 
Specifically, the proposed amendment would revise subsections (a)(1) 
and (a)(3) to replace the term ``similar offense'' used in these 
guideline provisions with the appropriate terms set forth in the 
relevant statutory provisions, as amended by the First Step Act.
    First, Part B of the proposed amendment would amend Sec.  
2D1.1(a)(1) and split it into two subparagraphs. Subparagraph (A) would 
provide for a base offense level of 43 for a defendant convicted under 
21 U.S.C. 841(b)(1)(A) or (b)(1)(B), or 21 U.S.C. 960(b)(1) or (b)(2), 
where death or serious bodily injury resulted from the use of the 
substance and the defendant committed the offense after one or more 
prior convictions for a ``serious drug felony or serious violent 
felony.'' Subparagraph (B) would provide for a base offense level of 43 
for a defendant convicted under 21 U.S.C. 841(b)(1)(C) or 21 U.S.C. 
960(b)(3) where death or serious bodily injury resulted from the use of 
the substance and the defendant committed the offense after one or more 
prior convictions for a ``felony drug offense.''

[[Page 7188]]

    Second, Part B of the proposed amendment would amend Sec.  
2D1.1(a)(3), which provides for a base offense level of 30 for a 
defendant convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5) 
where death or serious bodily injury resulted from the use of the 
substance and the defendant committed the offense after one or more 
prior convictions for a ``similar offense.'' Specifically, it would 
replace the term ``similar offense'' with ``felony drug offense,'' as 
provided in the relevant statutory provisions.

(A) Safety Valve

Proposed Amendment
    Section 5C1.2(a) is amended--
    by inserting after ``Sec.  963,'' the following: ``or 46 U.S.C. 
70503 or Sec.  70506,'';
    by striking ``set forth below'' and inserting ``as follows'';
    by striking paragraph (1) as follows:
    ``(1) the defendant does not have more than 1 criminal history 
point, as determined under the sentencing guidelines before application 
of subsection (b) of Sec.  4A1.3 (Departures Based on Inadequacy of 
Criminal History Category);'';
    and by inserting the following new paragraph (1):
    ``(1) the defendant does not have--
    (A) more than 4 criminal history points, excluding any criminal 
history points resulting from a 1-point offense, as determined under 
the sentencing guidelines;
    (B) a prior 3-point offense, as determined under the sentencing 
guidelines; and
    (C) a prior 2-point violent offense, as determined under the 
sentencing guidelines;''.
    [Section 5C1.2(b) is amended by striking ``the offense level 
applicable from Chapters Two (Offense Conduct) and Three (Adjustments) 
shall not be less than 17'' and inserting ``the applicable guideline 
range shall not be less than 24 to 30 months of imprisonment''.]
    The Commentary to Sec.  5C1.2 captioned ``Application Notes'' is 
amended--
    by striking Notes 1, 2, and 3 as follows:
    ``1. `More than 1 criminal history point, as determined under the 
sentencing guidelines,' as used in subsection (a)(1), means more than 
one criminal history point as determined under Sec.  4A1.1 (Criminal 
History Category) before application of subsection (b) of Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category).
    2. `Dangerous weapon' and `firearm,' as used in subsection (a)(2), 
and `serious bodily injury,' as used in subsection (a)(3), are defined 
in the Commentary to Sec.  1B1.1 (Application Instructions).
    3. `Offense,' as used in subsection (a)(2)-(4), and `offense or 
offenses that were part of the same course of conduct or of a common 
scheme or plan,' as used in subsection (a)(5), mean the offense of 
conviction and all relevant conduct.'';
    and inserting the following new Note 1 [and Note 2]:
    ``1. Definitions.--
    (A) The term `violent offense' means a `crime of violence,' as 
defined in 18 U.S.C. 16, that is punishable by imprisonment.
    (B) `Dangerous weapon' and `firearm,' as used in subsection (a)(2), 
and `serious bodily injury,' as used in subsection (a)(3), are defined 
in the Commentary to Sec.  1B1.1 (Application Instructions).
    (C) `Offense,' as used in subsection (a)(2)-(4), and `offense or 
offenses that were part of the same course of conduct or of a common 
scheme or plan,' as used in subsection (a)(5), mean the offense of 
conviction and all relevant conduct.
    [2. Application of subsection (a)(1).--In determining whether the 
defendant meets the criteria in subsection (a)(1), refer to Sec.  4A1.1 
(Criminal History Category) and Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History), read together, before 
application of subsection (b) of Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category).]'';
    by redesignating Note 4 as Note 3;
    in Note 3 (as so redesignated) by inserting at the beginning the 
following new heading: ``Application of subsection (a)(2).--'';
    by striking Notes 5, 6, and 7 as follows:
    ``5. `Organizer, leader, manager, or supervisor of others in the 
offense, as determined under the sentencing guidelines,' as used in 
subsection (a)(4), means a defendant who receives an adjustment for an 
aggravating role under Sec.  3B1.1 (Aggravating Role).
    6. `Engaged in a continuing criminal enterprise,' as used in 
subsection (a)(4), is defined in 21 U.S.C. 848(c). As a practical 
matter, it should not be necessary to apply this prong of subsection 
(a)(4) because (i) this section does not apply to a conviction under 21 
U.S.C. 848, and (ii) any defendant who `engaged in a continuing 
criminal enterprise' but is convicted of an offense to which this 
section applies will be an `organizer, leader, manager, or supervisor 
of others in the offense.'
    7. Information disclosed by the defendant with respect to 
subsection (a)(5) may be considered in determining the applicable 
guideline range, except where the use of such information is restricted 
under the provisions of Sec.  1B1.8 (Use of Certain Information). That 
is, subsection (a)(5) does not provide an independent basis for 
restricting the use of information disclosed by the defendant.'';
    by inserting the following new Notes 4 and 5:
    ``4. Application of Subsection (a)(4).--
    (A) `Organizer, leader, manager, or supervisor of others in the 
offense'.--The first prong of subsection (a)(4) requires that the 
defendant was not subject to an adjustment for an aggravating role 
under Sec.  3B1.1 (Aggravating Role).
    (B) `Engaged in a continuing criminal enterprise'.--`Engaged in a 
continuing criminal enterprise,' as used in subsection (a)(4), is 
defined in 21 U.S.C. 848(c). As a practical matter, it should not be 
necessary to apply this prong of subsection (a)(4) because (i) this 
section does not apply to a conviction under 21 U.S.C. 848, and (ii) 
any defendant who `engaged in a continuing criminal enterprise' but is 
convicted of an offense to which this section applies will be an 
`organizer, leader, manager, or supervisor of others in the offense.'
    5. Use of Information Disclosed under Subsection (a).--Information 
disclosed by a defendant under subsection (a) may not be used to 
enhance the sentence of the defendant unless the information relates to 
a violent offense, as defined in Application Note 1(A).'';
    by redesignating Notes 8 and 9 as Notes 6 and 7, respectively;
    in Note 6 (as so redesignated) by inserting at the beginning the 
following new heading: ``Government's Opportunity to Make 
Recommendation.--'';
    and in Note 7 (as so redesignated) by inserting at the beginning 
the following new heading: ``Exemption from Otherwise Applicable 
Statutory Minimum Sentences.--''.
    The Commentary to Sec.  5C1.2 captioned ``Background'' is amended 
by inserting after ``Violent Crime Control and Law Enforcement Act of 
1994'' the following: ``and subsequently amended''.
    Section 4A1.3(b)(3)(B) is amended--
    in the heading by striking ``to Category I'';
    by striking ``whose criminal history category is Category I after 
receipt of'' and inserting ``who receives'';
    by striking ``criterion'' and inserting ``criminal history 
requirement'';
    and by striking ``if, before receipt of the downward departure, the 
defendant had more than one criminal history point under Sec.  4A1.1 
(Criminal History Category)'' and inserting ``if the defendant did not 
otherwise meet such

[[Page 7189]]

requirement before receipt of the downward departure''.
    [Option 1:
    Section 2D1.1(b)(18) is amended by striking ``subdivisions'' and 
inserting ``paragraphs''.
    [The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 21 by striking ``a minimum offense level of level 17'' 
and inserting ``that the applicable guideline range shall not be less 
than 24 to 30 months of imprisonment''.]
    Section 2D1.11(b)(6) is amended by striking ``subdivisions'' and 
inserting ``paragraphs''.
    [The Commentary to Sec.  2D1.11 captioned ``Application Notes'' is 
amended in Note 7 by striking ``a minimum offense level of level 17'' 
and inserting ``an applicable guideline range of not less than 24 to 30 
months of imprisonment''.]]
    [Option 2:
    Section 2D1.1(b)(18) is amended by striking the following:
    ``If the defendant meets the criteria set forth in subdivisions 
(1)-(5) of subsection (a) of Sec.  5C1.2 (Limitation on Applicability 
of Statutory Minimum Sentences in Certain Cases), decrease by 2 
levels.'',
    and inserting the following:
    ``If the defendant--
    (A) meets the criteria set forth in paragraphs (2)-(5) of 
subsection (a) of Sec.  5C1.2 (Limitation on Applicability of Statutory 
Minimum Sentences in Certain Cases); and
    (B) does not have any of the following:
    (i) more than 4 criminal history points, excluding any criminal 
history points resulting from a 1-point offense;
    (ii) a prior 3-point offense; or
    (iii) a prior 2-point violent offense;
    as determined under Sec.  4A1.1 (Criminal History Category) and 
Sec.  4A1.2 (Definitions and Instructions for Computing Criminal 
History), read together, before application of subsection (b) of Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category);
    decrease by 2 levels.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 21 by striking the following:
    ``Applicability of Subsection (b)(18).--The applicability of 
subsection (b)(18) shall be determined without regard to whether the 
defendant was convicted of an offense that subjects the defendant to a 
mandatory minimum term of imprisonment. Section Sec.  5C1.2(b), which 
provides a minimum offense level of level 17, is not pertinent to the 
determination of whether subsection (b)(18) applies.'',
    and inserting the following:
    ``Application of Subsection (b)(18).--
    (A) General Applicability.--The applicability of subsection (b)(18) 
shall be determined without regard to whether the defendant was 
convicted of an offense that subjects the defendant to a mandatory 
minimum term of imprisonment. Section Sec.  5C1.2(b), which provides [a 
minimum offense level of level 17][that the applicable guideline range 
shall not be less than 24 to 30 months of imprisonment], is not 
pertinent to the determination of whether subsection (b)(18) applies.
    (B) Definition of Violent Offense.--The term `violent offense' 
means a `crime of violence,' as defined in 18 U.S.C. 16, that is 
punishable by imprisonment.''.
    Section 2D1.11(b)(6) is amended by striking the following:
    ``If the defendant meets the criteria set forth in subdivisions 
(1)-(5) of subsection (a) of Sec.  5C1.2 (Limitation on Applicability 
of Statutory Minimum Sentences in Certain Cases), decrease by 2 
levels.'',
    and inserting the following:
    ``If the defendant--
    (A) meets the criteria set forth in paragraphs (2)-(5) of 
subsection (a) of Sec.  5C1.2 (Limitation on Applicability of Statutory 
Minimum Sentences in Certain Cases); and
    (B) does not have any of the following:
    (i) more than 4 criminal history points, excluding any criminal 
history points resulting from a 1-point offense;
    (ii) a prior 3-point offense; or
    (iii) a prior 2-point violent offense;
    as determined under Sec.  4A1.1 (Criminal History Category) and 
Sec.  4A1.2 (Definitions and Instructions for Computing Criminal 
History), read together, before application of subsection (b) of Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category);
    decrease by 2 levels.''.
    The Commentary to Sec.  2D1.11 captioned ``Application Notes'' is 
amended in Note 7 by striking the following:
    ``Applicability of Subsection (b)(6).--The applicability of 
subsection (b)(6) shall be determined without regard to the offense of 
conviction. If subsection (b)(6) applies, Sec.  5C1.2(b) does not 
apply. See Sec.  5C1.2(b)(2)(requiring a minimum offense level of level 
17 if the `statutorily required minimum sentence is at least five 
years').'',
    and inserting the following:
    ``Application of Subsection (b)(6).--
    (A) General Applicability.--The applicability of subsection (b)(6) 
shall be determined without regard to the offense of conviction. If 
subsection (b)(6) applies, Sec.  5C1.2(b) does not apply. See Sec.  
5C1.2(b)(2) (requiring [a minimum offense level of level 17][an 
applicable guideline range of not less than 24 to 30 months of 
imprisonment] if the `statutorily required minimum sentence is at least 
five years').
    (B) Definition of Violent Offense.--The term `violent offense' 
means a `crime of violence,' as defined in 18 U.S.C. 16, that is 
punishable by imprisonment.''.]
Issues for Comment
    1. As described above, Part A of the proposed amendment would make 
changes to Sec.  5C1.2 (Limitation on Applicability of Statutory 
Minimum Sentences in Certain Cases) and its corresponding commentary to 
implement the First Step Act of 2018, Public Law 115-391 (Dec. 21, 
2018). The Commission seeks general comment on whether the Commission 
should make any different or additional changes to implement the Act.
    2. Section 3553(f)(1) of title 18, United States Code, sets forth 
the criminal history criteria for the safety valve in subparagraphs (A) 
through (C). Each subparagraph sets forth the specific criminal history 
condition followed by the phrase ``as determined under the sentencing 
guidelines.'' Circuit courts have reached different conclusions about 
what constitutes a ``1-point,'' ``2-point,'' or ``3-point'' offense, 
and also seem to disagree on whether such interpretation arises from 
the statute itself or from proper guideline operation. Compare, e.g., 
United States v. Garcon, 54 F.4th 1274, 1280-84 (11th Cir. 2022) (en 
banc) (concluding that criminal history events are considered 
differently for purposes of subsections 3553(f)(1)(B) and (C) than 
subsection (A), and articulating that interpretation as primarily 
stemming from the statute), with United States v. Haynes, 55 F.4th 
1075, 1080 (6th Cir. 2022) (``[Section] 3553(f)(1) refers only to 
`prior 3-point' and `prior 2-point violent' offenses `as determined 
under the sentencing guidelines'--which means all the Guidelines, 
including Sec.  4A1.2(e).''). The Commission seeks comment on whether 
it should provide guidance on what constitutes a ``1-point,'' ``2-
point,'' or ``3-point'' offense, ``as determined under the sentencing 
guidelines,'' for purposes of Sec.  5C1.2.
    3. Part A of the proposed amendment provides two options for 
amending subsection (b)(18) of Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) and subsection

[[Page 7190]]

(b)(6) of Sec.  2D1.11 (Unlawfully Distributing, Importing, Exporting 
or Possessing a Listed Chemical; Attempt or Conspiracy) in light of the 
proposed revisions to Sec.  5C1.2(a), which reflect the changes to 18 
U.S.C. 3553(f) enacted by the First Step Act.
    Option 1 would leave the text of Sec.  2D1.1(b)(18) and Sec.  
2D1.11(b)(6) unchanged, so that their offense-level reductions would 
apply to all defendants who meet the criteria in revised Sec.  
5C1.2(a)(1)-(5). As discussed above, a circuit conflict has arisen as 
to whether the ``and'' connecting the subparagraphs that set forth the 
criminal history criteria in 18 U.S.C. 3553(f)(1) operates 
disjunctively or conjunctively.
    Option 2 of the proposed amendment would amend Sec.  2D1.1(b)(18) 
and Sec.  2D1.11(b)(6) to provide that their 2-level reductions would 
apply to all defendants who meet the criteria in Sec.  5C1.2(a)(2)-(5). 
It would also incorporate into those provisions the same criminal 
history criteria from revised Sec.  5C1.2(a)(1) but set forth the 
criteria disjunctively, so that the reductions would be available only 
to defendants who do not present any of the listed disqualifying 
conditions.
    The Commission seeks comment on each of these options. Which 
option, if any, is appropriate? In the alternative, should the 
Commission incorporate into Sec.  2D1.1(b)(18) and Sec.  2D1.11(b)(6) 
the same criminal history criteria from revised Sec.  5C1.2(a)(1) but 
set forth the criteria conjunctively, so that defendants must present 
all of the listed disqualifying conditions to be ineligible for their 
reductions? Should the Commission consider an altogether different 
approach? If so, what approach should the Commission provide and why?

(B) Recidivist Penalties for Drug Offenders

Proposed Amendment
    Section 2D1.1(a)(1) is amended by striking the following:
    ``43, if the defendant is convicted under 21 U.S.C. 841(b)(1)(A), 
(b)(1)(B), or (b)(1)(C), or 21 U.S.C. 960(b)(1), (b)(2), or (b)(3), and 
the offense of conviction establishes that death or serious bodily 
injury resulted from the use of the substance and that the defendant 
com-mitted the offense after one or more prior convictions for a 
similar offense; or'',
    and inserting the following:
    ``43, if--
    (A) the defendant is convicted under 21 U.S.C. 841(b)(1)(A) or 
(b)(1)(B), or 21 U.S.C. 960(b)(1) or (b)(2), and the offense of 
conviction establishes that death or serious bodily injury resulted 
from the use of the substance and that the defendant committed the 
offense after one or more prior convictions for a serious drug felony 
or serious violent felony; or
    (B) the defendant is convicted under 21 U.S.C. 841(b)(1)(C) or 21 
U.S.C. 960(b)(3) and the offense of conviction establishes that death 
or serious bodily injury resulted from the use of the substance and 
that the defendant committed the offense after one or more prior 
convictions for a felony drug offense; or''.
    Section 2D1.1(a)(3) is amended by striking ``similar offense'' and 
inserting ``felony drug offense''.
    The Commentary to Sec.  2D1.1 caption ``Application Notes'' is 
amended--
    by striking Note 2 as follows:
    ``2. `Plant'.--For purposes of the guidelines, a `plant' is an 
organism having leaves and a readily observable root formation (e.g., a 
marihuana cutting having roots, a rootball, or root hairs is a 
marihuana plant).'';
    by redesignating Note 1 as Note 2;
    and by inserting at the beginning the following new Note 1:
    ``1. Definitions.--
    For purposes of the guidelines, a `plant' is an organism having 
leaves and a readily observable root formation (e.g., a marihuana 
cutting having roots, a rootball, or root hairs is a marihuana plant).
    For purposes of subsection (a), `serious drug felony,' `serious 
violent felony,' and `felony drug offense' have the meaning given those 
terms in 21 U.S.C. 802.''.

3. Firearms Offenses

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's consideration of possible amendments to Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) 
to (A) implement the Bipartisan Safer Communities Act (Pub. L. 117-
159); and (B) make any other changes that may be warranted to 
appropriately address firearms offenses. See U.S. Sent'g Comm'n, 
``Notice of Final Priorities,'' 87 FR 67756 (Nov. 9, 2022). The 
proposed amendment contains three parts (Parts A through C). The 
Commission is considering whether to promulgate any or all these parts, 
as they are not mutually exclusive.
    Part A of the proposed amendment would amend Sec.  2K2.1 to respond 
to the Bipartisan Safer Communities Act. Two options are presented. 
Issues for comment are also provided.
    Part B of the proposed amendment addresses concerns expressed by 
some commenters about firearms that are not marked by a serial number 
(i.e., ``ghost guns''). An issue for comment is also provided.
    Part C of the proposed amendment provides issues for comment on 
possible further revisions to Sec.  2K2.1.

(A) Bipartisan Safer Communities Act

    Synopsis of Proposed Amendment: The Bipartisan Safer Communities 
Act (the ``Act''), among other things, created two new firearms 
offenses, amended definitions, increased penalties for certain firearms 
offenses, and contained a directive to the Commission relating to straw 
purchases and trafficking of firearms offenses.
    Specifically, the Act created two new offenses at 18 U.S.C. 932 and 
933. Section 932 prohibits knowingly purchasing, or conspiring to 
purchase, any firearm on behalf of, or at the request or demand of, 
another person with knowledge or reasonable cause to believe that such 
other person: (1) meets at least one of the criteria set forth in 18 
U.S.C. 922(d); (2) intends to use, carry, possess, sell, or otherwise 
dispose of the firearm in furtherance of a felony, a Federal crime of 
terrorism, or a drug trafficking crime; or (3) intends to sell or 
otherwise dispose of the firearm to a person who meets either of the 
previous criteria. See 18 U.S.C. 932(b). Section 933 prohibits: (1) 
shipping, transporting, transferring, causing to be transported, or 
otherwise disposing of, any firearm to another person with knowledge or 
reasonable cause to believe that the use, carrying, or possession of a 
firearm by the recipient would constitute a felony; (2) receiving from 
another person any firearm with knowledge or reasonable cause to 
believe that such receipt would constitute a felony; or (3) attempt or 
conspiracy to commit either of the acts described before. See 18 U.S.C. 
933(a).
    Both new offenses carry a statutory maximum term of imprisonment of 
15 years. The statutory maximum term of imprisonment for offenses under 
section 932 increases to 25 years if the offense was committed with 
knowledge or reasonable cause to believe that any firearm involved will 
be used to commit a felony, a Federal crime of terrorism, or a drug 
trafficking crime. See 18 U.S.C. 932(c)(2).
    In addition, the Act increased the statutory maximum term of 
imprisonment for the offenses under 18 U.S.C. 922(d), 922(g), 924(h), 
and 924(k) from ten to 15 years. The Act also made changes to the 
elements of some of these offenses. First, the Act expanded the scope 
of section 922(d) by adding two

[[Page 7191]]

additional categories of persons to whom it is unlawful to sell or 
otherwise dispose of any firearm or ammunition: (1) persons who intend 
to sell or otherwise dispose of the firearm or ammunition in 
furtherance of a felony, a Federal crime of terrorism, or a drug 
trafficking offense; and (2) persons who intend to sell or otherwise 
dispose of the firearm or ammunition to a person to whom sale or 
disposition is prohibited under the other categories in section 922(d). 
See 18 U.S.C. 922(d)(10)-(11).
    Second, the Act amended section 924(h). Prior to the Act, section 
924(h) prohibited knowingly transferring a firearm with knowledge that 
such firearm will be used to commit a crime of violence or drug 
trafficking crime. As amended by the Act, section 924(h) prohibits 
knowingly receiving or transferring a firearm or ammunition, or 
attempting or conspiring to do so, with knowledge or reasonable cause 
to believe that such firearm or ammunition will be used to commit a 
felony, a Federal crime of terrorism, a drug trafficking crime, or a 
crime under the Arms Export Control Act (22 U.S.C. 2751 et seq.), the 
Export Control Reform Act of 2018 (50 U.S.C. 4801 et seq.), the 
International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), 
or the Foreign Narcotics Kingpin Designation Act (21 U.S.C. 1901 et 
seq.). See 18 U.S.C. 924(h).
    Third, the Act also amended section 924(k). Prior to the Act, 
section 924(k) prohibited smuggling or knowingly bringing into the 
United States a firearm, or attempting to do so, with intent to engage 
in or to promote conduct that: (1) is punishable under the Controlled 
Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances 
Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 
46, United States Code; (2) violates any law of a State relating to any 
controlled substance; or (3) constitutes a crime of violence. Section 
924(k), as amended by the Act, prohibits smuggling or knowingly 
bringing into or out of the United States a firearm or ammunition, or 
attempting or conspiring to do so, with intent to engage in or to 
promote conduct that: (1) is punishable under the Controlled Substances 
Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 
46, United States Code; or (2) constitutes a felony, a Federal crime of 
terrorism, or a drug trafficking crime. See 18 U.S.C. 924(k).
    The Act also expanded the definition of ``misdemeanor crime of 
domestic violence'' at 18 U.S.C. 921(a)(33) to include offenses against 
a person in ``a current or recent former dating relationship.'' See 18 
U.S.C. 921(a)(33)(A). In addition, the Act added a new provision to 
section 921(a)(33) indicating that a person is not disqualified from 
shipping, transporting, possessing, receiving, or purchasing a firearm 
under chapter 44 of title 18, United States Code, by reason of a 
conviction for a misdemeanor crime of domestic violence against an 
individual in a dating relationship if certain criteria are met. See 18 
U.S.C. 921(a)(33)(C).
    Finally, the Act includes a directive requiring the Commission, 
pursuant to its authority under 28 U.S.C. 994, to review and amend its 
guidelines and policy statements to ensure that persons convicted of an 
offense under section 932 or 933 of title 18, United States Code, and 
other offenses applicable to the straw purchases and trafficking of 
firearms are subject to increased penalties in comparison to those 
currently provided by the guidelines and policy statements for such 
straw purchasing and trafficking of firearms offenses. In its review, 
the Commission shall consider, in particular, an appropriate amendment 
to reflect the intent of Congress that straw purchasers without 
significant criminal histories receive sentences that are sufficient to 
deter participation in such activities and reflect the defendant's role 
and culpability, and any coercion, domestic violence survivor history, 
or other mitigating factors. The Commission shall also review and amend 
its guidelines and policy statements to reflect the intent of Congress 
that a person convicted of an offense under section 932 or 933 of title 
18, United States Code, who is affiliated with a gang, cartel, 
organized crime ring, or other such enterprise should be subject to 
higher penalties than an otherwise unaffiliated individual.

Public Law 117-159, 12004(a)(5) (2022).
New Offenses and Increased Penalties for Straw Purchasing and Firearms 
Trafficking Offenses
    Part A of the proposed amendment implements part of the directive 
of the Bipartisan Safer Communities Act by addressing the new offenses 
at 18 U.S.C. 932 and 933 and increasing penalties for other offenses 
applicable to straw purchases and trafficking of firearms. First, Part 
A of the proposed amendment would amend Appendix A (Statutory Index) to 
reference the new offenses at 18 U.S.C. 932 and 933 to Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition). 
Offenses involving firearms trafficking and straw purchases are 
generally referenced to this guideline.
    Second, Part A of the proposed amendment would amend Sec.  2K2.1 to 
address the new offenses and increase penalties for offenses applicable 
to straw purchases and trafficking of firearms, as required by the 
directive. Two options are presented.
    Option 1 addresses the new offenses at 18 U.S.C. 932 and 933 and 
increases penalties for offenses applicable to straw purchases and 
trafficking of firearms. It would accomplish this by adding references 
to the new offenses in Sec.  2K2.1(a) and revising the firearms 
trafficking enhancement at Sec.  2K2.1(b)(5) to apply to straw purchase 
and other trafficking offenses.
    Specifically, Option 1 would add references to 18 U.S.C. 932 and 
933 in subsections (a)(4)(B)(ii)(II) and (a)(6)(B). In addition, Option 
1 would revise the 4-level enhancement for firearms trafficking at 
Sec.  2K2.1(b)(5) to make it a tiered-enhancement applicable to 
defendants who transferred or intended to transfer firearms or 
ammunition to certain individuals, which would provide the requisite 
increase for a defendant convicted of violating 18 U.S.C. 922(d), 932, 
or 933(a)(1), as well as other offenses, including violations of 18 
U.S.C. 922(a)(6) or 924(a)(1)(A) committed with knowledge, intent, or 
reason to believe that the offense would result in the transfer of a 
firearm or ammunition to a prohibited person. The revised enhancement 
would also apply to defendants convicted under 18 U.S.C. 933(a)(2) or 
(a)(3). Specifically, a [1][2]-level enhancement would apply if the 
defendant was convicted under 18 U.S.C. 933(a)(2) or (a)(3). A [1][2]-
level increase would apply if the defendant (i) transported, 
transferred, sold, or otherwise disposed of, or purchased or received 
with intent to transport, transfer, sell, or otherwise dispose of, a 
firearm or any ammunition knowing or having reason to believe that such 
conduct would result in the receipt of the firearm or ammunition by an 
individual who (I) was a prohibited person; or (II) intended to use or 
dispose of the firearm or ammunition unlawfully; or (ii) attempted or 
conspired to commit the conduct described in clause (i). A [5][6]-level 
enhancement would apply if the defendant (i) transported, transferred, 
sold, or otherwise disposed of, or purchased or received with intent to 
transport, transfer, sell, or otherwise dispose of, two or more 
firearms knowing or having reason to believe that such conduct would 
result in the receipt

[[Page 7192]]

of the firearms by an individual who (I) had a prior conviction for a 
crime of violence, controlled substance offense, or misdemeanor crime 
of domestic violence; (II) was under a criminal justice sentence; or 
(III) intended to use or dispose of the firearms unlawfully; or (ii) 
attempted or conspired to commit the conduct described in clause (i).
    In addition, Option 1 would amend Application Note 13 to conform 
its content with the revised version of Sec.  2K2.1(b)(5). It would 
also include a new provision in response to the changes that the Act 
made to section 921(a)(33). Specifically, the new provision states that 
new subsection (b)(5)(C) shall not apply based upon the receipt or 
intended receipt of the firearms by an individual with a prior 
conviction for a misdemeanor crime of domestic violence against a 
person in a dating relationship if, at the time of the instant offense, 
such individual [had no prior conviction for a crime of violence or 
controlled substance offense and had not more than one conviction of a 
misdemeanor crime of domestic violence against a person in a dating 
relationship, but 5 years had elapsed from the later of the judgment of 
conviction or the completion of the individual's custodial or 
supervisory sentence for such an offense and the individual had not 
subsequently been convicted of another such offense; a misdemeanor 
under federal, state, tribal, or local law which has, as an element, 
the use or attempted use of physical force, or the threatened use of a 
deadly weapon; or any other offense covered 18 U.S.C. 922(g)][met the 
criteria set forth in the proviso of 18 U.S.C. 921(a)(33)(C)]. In 
addition, Option 1 would amend the departure provision in Application 
Note 13 to provide that if the defendant transported, transferred, 
sold, or otherwise disposed of, or purchased or received with intent to 
transport, transfer, sell, or otherwise dispose of, substantially more 
than 25 firearms [or an unusually large amount of ammunition], an 
upward departure may be warranted.
    Option 2 would restructure the base offense level provisions at 
Sec.  2K2.1(a) by providing references to specific statutes with 
statutory maximum terms of imprisonment of 15 years or more. Option 2 
identifies the ``other offenses applicable'' to trafficking and straw 
purchasing as those for which Congress increased penalties in the Act. 
As mentioned, the Act increased the maximum term of imprisonment from 
ten to 15 years for four offenses: 18 U.S.C. 922(d) (transferring a 
firearm or ammunition to a prohibited person); 922(g) (possession, 
receipt, or transfer of a firearm or ammunition by a prohibited 
person); 924(h) (transferring a firearm or ammunition to commit a 
felony); and 924(k) (smuggling a firearm or ammunition to commit a 
felony). The 15-year statutory maximum for these four offenses is the 
same as the new section 932 (without aggravating circumstances) and 
section 933 offenses. Three of the offenses with the amended statutory 
penalties (sections 922(g), 922(d), and 924(h)) share core elements 
with the new straw purchase (section 932) and trafficking (section 933) 
statutes: the transfer of a firearm to a felon or knowing it would be 
used to commit a felony; and the receipt of a firearm by a felon or 
knowing it would be used to commit a felony. The third (section 924(k)) 
similarly concerns itself with the intent to engage in or promote a 
further felony (after smuggling a firearm or ammunition into or out of 
the United States). Because the penalties and elements of these four 
offenses are similar to those of the new offenses, and they were 
modified by the same Act, Option 2 applies the increase to defendants 
convicted of those four offenses in addition to defendants convicted 
under 18 U.S.C. 932 and 933.
    First, Option 2 would increase by [1][2] levels the base offense 
levels at subsections (a)(1) through (a)(3). Second, Option 2 would add 
a new provision at subsection (a)(4) that sets forth a base offense 
level of [21][22] if (A) the defendant committed any part of the 
instant offense subsequent to sustaining one felony conviction of 
either a crime of violence or a controlled substance offense; or (B) 
(i) the defendant is convicted under 18 U.S.C. 922(d), 922(g), 924(h), 
924(k), 932, or 933; and (ii) the offense involved a (I) semiautomatic 
firearm that is capable of accepting a large capacity magazine; or (II) 
firearm that is described in 26 U.S.C. 5845(a). Third, Option 2 would 
delete current subsection (a)(4)(A) and make conforming changes to 
current subsection (a)(4)(B). Fourth, Option 2 would add a new 
provision at Sec.  2K2.1(a)(7) that would set forth a new base offense 
level of [15][16] if the defendant was convicted under 18 U.S.C. 
922(d), 922(g), 924(h), 924(k), 932, or 933. Fifth, Option 2 would 
delete current subsection (a)(6)(B). Sixth, Option 2 would amend the 
provision that follows Sec.  2K2.1(b)(4) containing a cumulative impact 
``cap,'' to increase such limit from level 29 to level [30][31]. 
Finally, Option 2 would add a new [1][2]-level reduction at Sec.  
2K1.1(b)(9) applicable if (A) the base offense level is determined 
under new subsection (a)(7); (B) none of the enhancements in subsection 
(b) apply; and (C) the offense of conviction established only the 
possession or receipt of firearms or ammunition.
    Option 2 would also amend current Application Note 13(B) in 
response to the changes that the Act made to section 921(a)(33). The 
note currently provides that ``misdemeanor crime of violence'' has the 
meaning given that term in 18 U.S.C. 921(a)(33)(A). Option 2 would 
amend Application Note 13(B) to expressly provide that an individual 
shall not be considered an ``individual whose possession or receipt of 
the firearm would be unlawful'' [if, at the time of the instant 
offense, the individual was not otherwise covered by such definition 
and has not more than one conviction of a misdemeanor crime of domestic 
violence against a person in a dating relationship, but 5 years had 
elapsed from the later of the judgment of conviction or the completion 
of the individual's custodial or supervisory sentence for such an 
offense and the individual had not subsequently been convicted of: 
another such offense; a misdemeanor under federal, state, tribal, or 
local law which has, as an element, the use or attempted use of 
physical force, or the threatened use of a deadly weapon; or any other 
offense covered by the definition of ``individual whose possession or 
receipt of the firearm would be unlawful''][based upon a conviction of 
a misdemeanor crime of domestic violence against a person in a dating 
relationship, if the individual met the criteria set forth in the 
proviso of 18 U.S.C. 921(a)(33)(C) at the time of the instant offense].
``Straw Purchasers'' With Mitigating Factors
    Part A of the proposed amendment also addresses the part of the 
directive that requires the Commission to ``consider, in particular, an 
appropriate amendment to reflect the intent of Congress that straw 
purchasers without significant criminal histories receive sentences 
that are sufficient to deter participation in such activities and 
reflect the defendant's role and culpability, and any coercion, 
domestic violence survivor history, or other mitigating factors.'' See 
Public Law 117-159, Sec.  12004(a)(5) (2022).
    In response to the directive, Options 1 and 2 of Part A of the 
proposed amendment would add a new [1][2]-level reduction based on 
certain mitigating factors.
    Option 1 would set forth the new [1][2]-level reduction at 
subsection (b)(9). The reduction would be applicable if the defendant 
(A) [receives

[[Page 7193]]

an enhancement under subsection (b)(5)][is convicted under (i) 18 
U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C. 922(a)(6) or 924(a)(1)(A) 
and committed the offense with knowledge, intent, or reason to believe 
that the offense would result in the transfer of a firearm or 
ammunition to a prohibited person]; (B) does not have more than 1 
criminal history point, as determined under Sec.  4A1.1 (Criminal 
History Category) and Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History), read together, before application of 
subsection (b) of Sec.  4A1.3 (Departures Based on Inadequacy of 
Criminal History Category); and (C) (i) was motivated by an intimate or 
familial relationship or by threats or fear to commit the offense; 
[or][and] (ii) received little or no compensation from the offense; 
[or][and] (iii) had minimal knowledge [of the scope and structure of 
the enterprise][that the firearm would be used or possessed in 
connection with further criminal activity].
    Option 2 would set forth the new [1][2]-level reduction at 
subsection (b)(10). The reduction would be applicable if subsection 
(b)(9) does not apply and the defendant (A) is convicted under 18 
U.S.C. 922(d), 924(h), 924(k), 932, or 933; (B) does not have more than 
1 criminal history point, as determined under Sec.  4A1.1 (Criminal 
History Category) and Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History), read together, before application of 
subsection (b) of Sec.  4A1.3 (Departures Based on Inadequacy of 
Criminal History Category); and (C) (i) was motivated by an intimate or 
familial relationship or by threats or fear to commit the offense; 
[or][and] (ii) received little or no compensation from the offense; 
[or][and] (iii) had minimal knowledge [of the scope and structure of 
the enterprise][that the firearm would be used or possessed in 
connection with further criminal activity].
    In relation to this part of the directive, both options in Part A 
of the proposed amendment bracket the deletion of the departure 
provision at Application Note 15 of Sec.  2K2.1.
Enhancement for Defendants With Criminal Affiliations
    Finally, Part A of the proposed amendment addresses the part of the 
directive that requires the Commission to ``review and amend its 
guidelines and policy statements to reflect the intent of Congress that 
a person convicted of an offense under section 932 or 933 of title 18, 
United States Code, who is affiliated with a gang, cartel, organized 
crime ring, or other such enterprise should be subject to higher 
penalties than an otherwise unaffiliated individual.'' See Public Law 
117-159, Sec.  12004(a)(5) (2022). Options 1 and 2 of Part A of the 
proposed amendment would provide a new [2][3][4]-level enhancement in 
response to this part of the directive.
    Option 1 would set forth the new [2][3][4]-level enhancement at 
subsection (b)(8). The enhancement would be applicable if the defendant 
(A) [receives an enhancement under subsection (b)(5)][is convicted 
under (i) 18 U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C. 922(a)(6) or 
924(a)(1)(A) and committed the offense with knowledge, intent, or 
reason to believe that the offense would result in the transfer of a 
firearm or ammunition to a prohibited person]; (B) participated, at the 
time of the offense, in a group, club, organization, or association of 
five or more persons that had as one of its primary purposes the 
commission of criminal offenses, with knowledge that its members engage 
in or have engaged in criminal activity; and (C) committed the offense 
with the intent to promote or further the felonious activities of, or 
with the intent to maintain or increase his or her position in, such 
group, club, organization, or association.
    Option 2 would set forth the new [2][3][4]-level enhancement at 
subsection (b)(8). The enhancement would be applicable if the defendant 
(A) is convicted under (i) 18 U.S.C. 922(d), 932, or 933; or (ii) 18 
U.S.C. 922(a)(6) or 924(a)(1)(A) and committed the offense with 
knowledge, intent, or reason to believe that the offense would result 
in the transfer of a firearm or ammunition to a prohibited person; (B) 
participated, at the time of the offense, in a group, club, 
organization, or association of five or more persons that had as one of 
its primary purposes the commission of criminal offenses, with 
knowledge that its members engage in or have engaged in criminal 
activity; and (C) committed the offense with the intent to promote or 
further the felonious activities of, or with the intent to maintain or 
increase his or her position in, such group, club, organization, or 
association.
Issues for Comment
    Part A of the proposed amendment also provides issues for comment.
Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 18 U.S.C. 956 the following new line references:

``18 U.S.C. 932 2K2.1
18 U.S.C. 933 2K2.1''.

    [Option 1 (Revised SOC Enhancement for Straw Purchase and 
Trafficking Offenses):
    Section 2K2.1(a)(4)(B) is amended by inserting after ``18 U.S.C. 
922(d)'' the following: ``, Sec.  932, or Sec.  933''.
    Section 2K2.1(a)(6)(B) is amended by inserting after ``18 U.S.C. 
922(d)'' the following: ``, Sec.  932, or Sec.  933''.
    Section 2K2.1(b) is amended--
    in paragraph (5) by striking ``If the defendant engaged in the 
trafficking of firearms, increase by 4 levels.'' and inserting the 
following:
    ``(Apply the Greatest) If the defendant--
    (A) was convicted under 18 U.S.C. 933(a)(2) or (a)(3), increase by 
[1][2] levels;
    (B) (i) transported, transferred, sold, or otherwise disposed of, 
or purchased or received with intent to transport, transfer, sell, or 
otherwise dispose of, a firearm or any ammunition knowing or having 
reason to believe that such conduct would result in the receipt of the 
firearm or ammunition by an individual who (I) was a prohibited person; 
or (II) intended to use or dispose of the firearm or ammunition 
unlawfully; or (ii) attempted or conspired to commit the conduct 
described in clause (i), increase by [1][2] levels; or
    (C) (i) transported, transferred, sold, or otherwise disposed of, 
or purchased or received with intent to transport, transfer, sell, or 
otherwise dispose of, two or more firearms knowing or having reason to 
believe that such conduct would result in the receipt of the firearms 
by an individual who (I) had a prior conviction for a crime of 
violence, controlled substance offense, or misdemeanor crime of 
domestic violence; (II) was under a criminal justice sentence; or (III) 
intended to use or dispose of the firearms unlawfully; or (ii) 
attempted or conspired to commit the conduct described in clause (i), 
increase by [5][6] levels.'';
    and by inserting at the end the following new paragraphs (8) and 
(9):
    ``(8) If the defendant--
    (A) [receives an enhancement under subsection (b)(5)][is convicted 
under (i) 18 U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C. 922(a)(6) or 
924(a)(1)(A) and committed the offense with knowledge, intent, or 
reason to believe that the offense would result in the transfer of a 
firearm or ammunition to a prohibited person];
    (B) participated, at the time of the offense, in a group, club, 
organization, or association of five or more persons that had as one of 
its primary purposes the commission of criminal offenses, with 
knowledge that its members engage

[[Page 7194]]

in or have engaged in criminal activity; and
    (C) committed the offense with the intent to promote or further the 
felonious activities of, or with the intent to maintain or increase his 
or her position in, such group, club, organization, or association;
    increase by [2][3][4] levels.
    (9) If the defendant--
    (A) [receives an enhancement under subsection (b)(5)][is convicted 
under (i) 18 U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C. 922(a)(6) or 
924(a)(1)(A) and committed the offense with knowledge, intent, or 
reason to believe that the offense would result in the transfer of a 
firearm or ammunition to a prohibited person];
    (B) does not have more than 1 criminal history point, as determined 
under Sec.  4A1.1 (Criminal History Category) and Sec.  4A1.2 
(Definitions and Instructions for Computing Criminal History), read 
together, before application of subsection (b) of Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category); and
    (C) (i) was motivated by an intimate or familial relationship or by 
threats or fear to commit the offense; [or][and] (ii) received little 
or no compensation from the offense; [or][and] (iii) had minimal 
knowledge [of the scope and structure of the enterprise][that the 
firearm would be used or possessed in connection with further criminal 
activity];
    decrease by [1][2] levels.''.
    The Commentary to Sec.  2K2.1 captioned ``Statutory Provisions'' is 
amended by inserting after ``(k)-(o),'' the following: ``932, 933,''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended--
    in Note 3 by striking ``subsections (a)(4)(B) and (a)(6)'' and 
inserting ``subsections (a)(4)(B), (a)(6), (b)(5), [(b)(8), and 
(b)(9)]'';
    in Note 10 by striking ``subsection (a)(1) and (a)(2)'' and 
inserting ``subsections (a)(1) and (a)(2)'';
    in Note 13--
    by striking paragraph (A) as follows:
    ``(A) In General.--Subsection (b)(5) applies, regardless of whether 
anything of value was exchanged, if the defendant--
    (i) transported, transferred, or otherwise disposed of two or more 
firearms to another individual, or received two or more firearms with 
the intent to transport, transfer, or otherwise dispose of firearms to 
another individual; and
    (ii) knew or had reason to believe that such conduct would result 
in the transport, transfer, or disposal of a firearm to an individual--
    (I) whose possession or receipt of the firearm would be unlawful; 
or
    (II) who intended to use or dispose of the firearm unlawfully.'';
    by redesignating paragraph (B) as paragraph (A);
    in paragraph (A) (as so redesignated) by striking the first 
paragraph as follows:
    `` `Individual whose possession or receipt of the firearm would be 
unlawful' means an individual who (i) has a prior conviction for a 
crime of violence, a controlled substance offense, or a misdemeanor 
crime of domestic violence; or (ii) at the time of the offense was 
under a criminal justice sentence, including probation, parole, 
supervised release, imprisonment, work release, or escape status. 
`Crime of violence' and `controlled substance offense' have the meaning 
given those terms in Sec.  4B1.2 (Definitions of Terms Used in Section 
4B1.1). `Misdemeanor crime of domestic violence' has the meaning given 
that term in 18 U.S.C. 921(a)(33)(A).'',
    and inserting the following:
    `` `Crime of violence' and `controlled substance offense' have the 
meaning given those terms in Sec.  4B1.2 (Definitions of Terms Used in 
Section 4B1.1).
    `Misdemeanor crime of domestic violence' has the meaning given that 
term in 18 U.S.C. 921(a)(33)(A).
    The term `criminal justice sentence' includes probation, parole, 
supervised release, imprisonment, work release, or escape status.'';
    by inserting the following new paragraph (B):
    ``(B) Application of Subsection (b)(5)(C).--Subsection (b)(5)(C) 
shall not apply based upon the receipt or intended receipt of the 
firearms by an individual with a prior conviction for a misdemeanor 
crime of domestic violence against a person in a dating relationship 
if, at the time of the instant offense, such individual [had no prior 
conviction for a crime of violence or controlled substance offense and 
had not more than one conviction of a misdemeanor crime of domestic 
violence against a person in a dating relationship, but 5 years had 
elapsed from the later of the judgment of conviction or the completion 
of the individual's custodial or supervisory sentence for such an 
offense and the individual had not subsequently been convicted of 
another such offense; a misdemeanor under federal, state, tribal, or 
local law which has, as an element, the use or attempted use of 
physical force, or the threatened use of a deadly weapon; or any other 
offense covered in 18 U.S.C. 922(g)][met the criteria set forth in the 
proviso of 18 U.S.C. 921(a)(33)(C)].'';
    and in paragraph (C) by striking ``If the defendant trafficked 
substantially more than 25 firearms, an upward departure may be 
warranted'' and inserting ``If the defendant transported, transferred, 
sold, or otherwise disposed of, or purchased or received with intent to 
transport, transfer, sell, or otherwise dispose of, substantially more 
than 25 firearms [or an unusually large amount of ammunition], an 
upward departure may be warranted''[;]
    [and by striking Note 15 as follows:
    ``15. Certain Convictions Under 18 U.S.C. 922(a)(6), 922(d), and 
924(a)(1)(A).--In a case in which the defendant is convicted under 18 
U.S.C. 922(a)(6), 922(d), or 924(a)(1)(A), a downward departure may be 
warranted if (A) none of the enhancements in subsection (b) apply, (B) 
the defendant was motivated by an intimate or familial relationship or 
by threats or fear to commit the offense and was otherwise unlikely to 
commit such an offense, and (C) the defendant received no monetary 
compensation from the offense.''].
    [Option 2 (Increase Penalties for Offenses with Statutory Maximum 
of 15 years or more):
    Section 2K2.1(a) is amended--
    in paragraph (1) by striking ``26,'' and inserting 
``[26][27][28],'';
    in paragraph (2) by striking ``24,'' and inserting 
``[24][25][26],'';
    in paragraph (3) by striking ``22,'' and inserting 
``[22][23][24],'';
    by striking paragraph (4) as follows:
    ``(4) 20, if--
    (A) the defendant committed any part of the instant offense 
subsequent to sustaining one felony conviction of either a crime of 
violence or a controlled substance offense; or
    (B) the (i) offense involved a (I) semiautomatic firearm that is 
capable of accepting a large capacity magazine; or (II) firearm that is 
described in 26 U.S.C. 5845(a); and (ii) defendant (I) was a prohibited 
person at the time the defendant committed the instant offense; (II) is 
convicted under 18 U.S.C. 922(d); or (III) is convicted under 18 U.S.C. 
922(a)(6) or 924(a)(1)(A) and committed the offense with knowledge, 
intent, or reason to believe that the offense would result in the 
transfer of a firearm or ammunition to a prohibited person;'';
    by redesignating paragraphs (5), (6), (7), and (8) as paragraphs 
(6), (8), (9), and (10), respectively;
    by inserting the following new paragraphs (4) and (5):
    ``(4) [21][22], if--
    (A) the defendant committed any part of the instant offense 
subsequent to sustaining one felony conviction of either a crime of 
violence or a controlled substance offense; or
    (B) (i) the defendant is convicted under 18 U.S.C. 922(d), 922(g), 
924(h),

[[Page 7195]]

924(k), 932, or 933; and (ii) the offense involved a (I) semiautomatic 
firearm that is capable of accepting a large capacity magazine; or (II) 
firearm that is described in 26 U.S.C. 5845(a);
    (5) 20, if the (A) offense involved a (i) semiautomatic firearm 
that is capable of accepting a large capacity magazine; or (ii) firearm 
that is described in 26 U.S.C. 5845(a); and (B) defendant (i) was a 
prohibited person at the time the defendant committed the instant 
offense; or (ii) is convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A) 
and committed the offense with knowledge, intent, or reason to believe 
that the offense would result in the transfer of a firearm or 
ammunition to a prohibited person;'';
    by inserting the following new paragraph (7):
    ``(7) [15][16], if the defendant is convicted under 18 U.S.C. 
922(d), 922(g), 924(h), 924(k), 932, or 933;'';
    and in paragraph (8) (as so redesignated) by striking ``(B) is 
convicted under 18 U.S.C. 922(d); or (C)'' and inserting ``or (B)''.
    Section 2K2.1(b) is amended--
    in paragraph (2) by striking ``(a)(4), or (a)(5)'' and inserting 
``(a)(4), (a)(5), or (a)(6)'';
    in the paragraph after paragraph (4) by striking ``level 29'' and 
inserting ``level [29][30][31]'';
    and by adding at the end the following new paragraphs (8), (9), and 
(10):
    ``(8) If the defendant--
    (A) is convicted under (i) 18 U.S.C. 922(d), 932, or 933; or (ii) 
18 U.S.C. 922(a)(6) or 924(a)(1)(A) and committed the offense with 
knowledge, intent, or reason to believe that the offense would result 
in the transfer of a firearm or ammunition to a prohibited person;
    (B) participated, at the time of the offense, in a group, club, 
organization, or association of five or more persons that had as one of 
its primary purposes the commission of criminal offenses, with 
knowledge that its members engage in or have engaged in criminal 
activity; and
    (C) committed the offense with the intent to promote or further the 
felonious activities of, or with the intent to maintain or increase his 
or her position in, such group, club, organization, or association;
    increase by [2][3][4] levels.
    (9) If (A) the base offense level is determined under subsection 
(a)(7); (B) none of the enhancements in subsection (b) apply; and (C) 
the offense of conviction established only the possession or receipt of 
firearms or ammunition, decrease by [1 level][2 levels].
    (10) If subsection (b)(9) does not apply and the defendant--
    (A) is convicted under 18 U.S.C. 922(d), 924(h), 924(k), 932, or 
933;
    (B) does not have more than 1 criminal history point, as determined 
under Sec.  4A1.1 (Criminal History Category) and Sec.  4A1.2 
(Definitions and Instructions for Computing Criminal History), read 
together, before application of subsection (b) of Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category); and
    (C) (i) was motivated by an intimate or familial relationship or by 
threats or fear to commit the offense; [or][and] (ii) received little 
or no compensation from the offense; [or][and] (iii) had minimal 
knowledge [of the scope and structure of the enterprise][that the 
firearm would be used or possessed in connection with further criminal 
activity];
    decrease by [1][2] levels.''.
    The Commentary to Sec.  2K2.1 captioned ``Statutory Provisions'' is 
amended by inserting after ``(k)-(o),'' the following: ``932, 933,''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended--
    in Note 2 by striking ``and (a)(4)'' and inserting ``(a)(4), and 
(a)(5)'';
    in Note 3 by striking ``(a)(4)(B) and (a)(6)'' and inserting 
``(a)(5), (a)(8), and (b)(8)'';
    in Note 4 by striking ``Subsection (a)(7)'' both places such term 
appears and inserting ``Subsection (a)(9)'';
    in Note 6 by striking ``subsections (a)(1)-(a)(5)'' and inserting 
``subsections (a)(1)-(a)(6)'';
    in Note 7 by striking ``(a)(4)(B), or (a)(5)'' and inserting 
``(a)(4)(B), (a)(5), or (a)(6)'';
    in Note 8(A)--
    in the heading by striking ``Subsection (a)(7)'' and inserting 
``Subsection (a)(9)'';
    and by striking ``under subsection (a)(7)'' both places such phrase 
appears and inserting ``under subsection (a)(9)'';
    in Note 9 by striking ``prohibited person'' both places such term 
appears and inserting ``person described in 18 U.S.C. 922(g) or 
922(n)'';
    in Note 10 by striking ``subsection (a)(1), (a)(2), (a)(3), 
(a)(4)(A), (a)(4)(B), or (a)(6)'' and inserting ``subsection (a)(1), 
(a)(2), (a)(3), (a)(4), (a)(5), or (a)(8)'';
    in Note 13(B) by inserting after ``18 U.S.C. 921(a)(33)(A).'' the 
following: ``However, an individual shall not be considered an 
`individual whose possession or receipt of the firearm would be 
unlawful' [if, at the time of the instant offense, the individual was 
not otherwise covered by such definition and had not more than one 
conviction of a misdemeanor crime of domestic violence against a person 
in a dating relationship, but 5 years had elapsed from the later of the 
judgment of conviction or the completion of the individual's custodial 
or supervisory sentence for such an offense and the individual had not 
subsequently been convicted of: another such offense; a misdemeanor 
under federal, state, tribal, or local law which has, as an element, 
the use or attempted use of physical force, or the threatened use of a 
deadly weapon; or any other offense covered by the definition of 
`individual whose possession or receipt of the firearm would be 
unlawful.'] [based upon a conviction of a misdemeanor crime of domestic 
violence against a person in a dating relationship, if the individual 
met the criteria set forth in the proviso of 18 U.S.C. 921(a)(33)(C) at 
the time of the instant offense.]''[;]
    [and by striking Note 15 as follows:
    ``15. Certain Convictions Under 18 U.S.C. 922(a)(6), 922(d), and 
924(a)(1)(A).--In a case in which the defendant is convicted under 18 
U.S.C. 922(a)(6), 922(d), or 924(a)(1)(A), a downward departure may be 
warranted if (A) none of the enhancements in subsection (b) apply, (B) 
the defendant was motivated by an intimate or familial relationship or 
by threats or fear to commit the offense and was otherwise unlikely to 
commit such an offense, and (C) the defendant received no monetary 
compensation from the offense.''].
Issues for Comment
    1. The directive in the Bipartisan Safer Communities Act requires 
the Commission to ensure that defendants convicted of the new offenses 
at 18 U.S.C. 932 and 933 and other offenses applicable to the straw 
purchases and trafficking of firearms are subject to increased 
penalties in comparison to those currently provided by the guidelines 
for such straw purchasing and trafficking of firearms offenses. The two 
options presented in Part A of the proposed amendment would amend Sec.  
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) 
to increase penalties in response to the Act. The Commission seeks 
comment on whether either of the options presented in Part A of the 
proposed amendment would provide appropriate penalties for cases 
involving straw purchases and trafficking of firearms. Should the 
Commission adopt either of these options or neither? Are there 
particular changes to the penalty levels in either of these options 
that should be made?
    In addition, the Commission seeks comment on whether additional 
changes should be made to Sec.  2K2.1 in response to the part of the 
directive that

[[Page 7196]]

requires the Commission to increase penalties for offenses involving 
straw purchases and trafficking of firearms. If so, what additional 
changes would be appropriate?
    2. As described above, the Bipartisan Safer Communities Act also 
amended the definition of ``misdemeanor crime of domestic violence'' at 
18 U.S.C. 921(a)(33) to include misdemeanor offenses against a person 
in ``a current or recent former dating relationship.'' The Act also 
added a new provision at section 921(a)(33)(C) stating as follows:
    A person shall not be considered to have been convicted of a 
misdemeanor crime of domestic violence against an individual in a 
dating relationship for purposes of this chapter if the conviction has 
been expunged or set aside, or is an offense for which the person has 
been pardoned or has had firearm rights restored unless the 
expungement, pardon, or restoration of rights expressly provides that 
the person may not ship, transport, possess, or receive firearms: 
Provided, That, in the case of a person who has not more than 1 
conviction of a misdemeanor crime of domestic violence against an 
individual in a dating relationship, and is not otherwise prohibited 
under this chapter, the person shall not be disqualified from shipping, 
transport, possession, receipt, or purchase of a firearm under this 
chapter if 5 years have elapsed from the later of the judgment of 
conviction or the completion of the person's custodial or supervisory 
sentence, if any, and the person has not subsequently been convicted of 
another such offense, a misdemeanor under Federal, State, Tribal, or 
local law which has, as an element, the use or attempted use of 
physical force, or the threatened use of a deadly weapon, or any other 
offense that would disqualify the person under [18 U.S.C. Sec. ] 
922(g). The national instant criminal background check system 
established under section 103 of the Brady Handgun Violence Prevention 
Act (34 U.S.C. 40901) shall be updated to reflect the status of the 
person. Restoration under this subparagraph is not available for a 
current or former spouse, parent, or guardian of the victim, a person 
with whom the victim shares a child in common, a person who is 
cohabiting with or has cohabited with the victim as a spouse, parent, 
or guardian, or a person similarly situated to a spouse, parent, or 
guardian of the victim.
    In light of this new provision, a person with a conviction for a 
misdemeanor crime of domestic violence against an individual in a 
dating relationship is not disqualified from shipping, transporting, 
possessing, receiving, or purchasing a firearm under chapter 44 of 
title 18, United States Code, if the criteria described above are met. 
Are the changes to the Commentary to Sec.  2K2.1 set forth in Options 1 
and 2 adequate to address this new provision? If not, how should the 
Commission address it?
    3. In response to the directive in the Bipartisan Safer Communities 
Act, Part A of the proposed amendment includes an Option 1 that would 
amend Sec.  2K2.1 to, among other things, revise the firearms 
trafficking enhancement at Sec.  2K2.1(b)(5) to apply to straw 
purchases and trafficking offenses. The revised enhancement would 
result in higher penalties for straw purchasers and firearms 
traffickers. The Commission seeks comment on whether having higher 
penalties for straw purchasers than prohibited persons raises 
proportionality concerns the Commission should address. If so, how 
should the Commission address those concerns?
    4. Part A of the proposed amendment includes an Option 2 that would 
revise Sec.  2K2.1(a) in several ways. Among other things, it would 
keep current Sec.  2K2.1(a)(4)(B) with a base offense level of 20 
applicable if the (A) offense involved a (i) semiautomatic firearm that 
is capable of accepting a large capacity magazine; or (ii) firearm that 
is described in 26 U.S.C. 5845(a); and (B) defendant (i) was a 
prohibited person at the time the defendant committed the instant 
offense; or (ii) is convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A) 
and committed the offense with knowledge, intent, or reason to believe 
that the offense would result in the transfer of a firearm or 
ammunition to a prohibited person. In addition, Option 2 would delete 
current Sec.  2K2.1(a)(6)(B) but keep the base offense level of 14 
applicable to any defendant who (A) was a prohibited person at the time 
the defendant committed the instant offense; or (B) is convicted under 
18 U.S.C. 922(a)(6) or 924(a)(1)(A) and committed the offense with 
knowledge, intent, or reason to believe that the offense would result 
in the transfer of a firearm or ammunition to a prohibited person. The 
Commission seeks comment on whether it should change the current base 
offense levels of 14 and 20 applicable to the defendants described 
above. If so, what offense level would be appropriate to any such 
defendant, and why?
    5. Options 1 and 2 of Part A of the proposed amendment would add to 
Sec.  2K2.1 a new [1][2]-level reduction based on certain mitigating 
factors. Option 1 provides that the reduction applies if the defendant 
[received an enhancement under the new subsection (b)(5) proposed in 
Option 1][was convicted under (i) 18 U.S.C. 922(d), 932, or 933; or 
(ii) 18 U.S.C. 922(a)(6) or 924(a)(1)(A) and committed the offense with 
knowledge, intent, or reason to believe that the offense would result 
in the transfer of a firearm or ammunition to a prohibited person] and 
meets other certain criteria. Option 2 provides that the reduction 
applies if subsection (b)(9) does not apply and the defendant is 
convicted under 18 U.S.C. 922(d), 924(h), 924(k), 932, or 933, and 
meets the same other criteria provided in Option 1. The Commission 
seeks comment on whether this new adjustment should apply more broadly. 
Instead of providing a [1][2]-level reduction, should the Commission 
provide a departure provision applicable to defendants who meet the 
criteria?
    The Commission also seeks comment on whether the criteria provided 
in Options 1 and 2 for this new reduction are appropriate. Should any 
criterion be deleted or changed? Should the Commission provide 
additional or different criteria?
    The Commission further seeks comment on the criminal history 
requirement provided in Options 1 and 2. Is the proposed requirement 
appropriate to respond to Congress's intent to address ``straw 
purchasers without significant criminal histories''? Should the 
Commission instead use a different criminal history requirement than 
the one proposed in Options 1 and 2?
    6. Application Note 15 of Sec.  2K2.1 contains a downward departure 
provision for cases in which the defendant is convicted under 18 U.S.C. 
922(a)(6), 922(d), or 924(a)(1)(A) and meets certain criteria, similar 
to some of the criteria included in the new proposed reduction provided 
in Option 1 at subsection (b)(9) and in Option 2 at subsection (b)(10). 
Hence, both options bracket the possibility of deleting the current 
departure provision. If the Commission were to promulgate any of the 
options in Part A of the proposed amendment, either as an adjustment or 
a downward departure provision, should the Commission delete the 
current departure provision at Application Note 15? If not, how should 
the new reduction interact with the current departure provision? Should 
the current departure provision be modified in any way?
    7. In response to the directive contained in the Bipartisan Safer 
Communities Act, Options 1 and 2 of Part A of the proposed amendment 
would provide a new [2][3][4]-level

[[Page 7197]]

enhancement in Sec.  2K2.1 based on the criminal affiliations of the 
defendant. Option 1 provides that the new enhancement would be 
applicable if the defendant [received an enhancement under the new 
subsection (b)(5) proposed in Option 1][was convicted under (i) 18 
U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C. 922(a)(6) or 924(a)(1)(A) 
and committed the offense with knowledge, intent, or reason to believe 
that the offense would result in the transfer of a firearm or 
ammunition to a prohibited person] and meets other criteria. Option 2 
provides that the new enhancement would be applicable if the defendant 
is convicted under (i) 18 U.S.C. 922(d), 932, or 933; or (ii) 18 U.S.C. 
922(a)(6) or 924(a)(1)(A) and committed the offense with knowledge, 
intent, or reason to believe that the offense would result in the 
transfer of a firearm or ammunition to a prohibited person; and meets 
the same other criteria provided in Option 1. The Commission seeks 
comment on whether the new enhancement should apply more broadly. 
Should the Commission provide additional or different criteria for 
purposes of applying this enhancement? In addition, how should this new 
enhancement interact with the existing enhancements at Sec.  2K2.1? 
Should the new enhancement be cumulative with other enhancements, or 
should it interact with other enhancements in some other way (e.g., by 
establishing a ``cap'' on its cumulative impact with other 
enhancements)? Should the Commission instead provide an altogether 
different approach to respond to this part of the congressional 
directive?

(B) Firearms Not Marked With Serial Number (``Ghost Guns'')

    Synopsis of Proposed Amendment: Subsection (b)(4) of Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) 
provides an alternative enhancement for a firearm that was stolen or 
that has an altered or obliterated serial number. Specifically, 
subsection (b)(4)(A) provides for a 2-level increase where a firearm is 
stolen, while subsection (b)(4)(B) provides for a 4-level increase 
where a firearm has an altered or obliterated serial number. The 
Commentary to Sec.  2K2.1 provides that the enhancement applies 
regardless of whether the defendant knew or had reason to believe that 
the firearm was stolen or had an altered or obliterated serial number. 
USSG Sec.  2K2.1, comment. (n.8(B)).
    The enhancement at Sec.  2K2.1 currently does not apply to ``ghost 
guns.'' ``Ghost guns'' is the term commonly used to refer to firearms 
that are not marked by a serial number by which they can be identified 
and traced, and that are typically made by an unlicensed individual 
from purchased components (such as standalone parts or weapon parts 
kits) or homemade components. Because of their lack of identifying 
markings, it is difficult to trace ghost guns and determine where and 
who manufactured them, and to whom they were sold or otherwise 
disposed. The Commission has heard from commenters that the very 
purpose of ``ghost guns'' is to avoid the tracking and tracing systems 
associated with a firearm's serial number and that they increasingly 
are associated with violent crime. Commenters have also indicated that 
Sec.  2K2.1 does not adequately address ``ghost guns,'' as the 
enhancement at Sec.  2K2.1(b)(4)(B) only covers firearms that were 
marked with a serial number when manufactured but where such identifier 
was later altered or obliterated.
    Part B of the proposed amendment would respond to these concerns by 
revising Sec.  2K2.1(b)(4)(B) to provide that the 4-level enhancement 
applies if any firearm had an altered or obliterated serial number or 
was not otherwise marked with a serial number [(other than an antique 
firearm, as defined in 18 U.S.C. 921(a)(16))].
    An issue for comment is provided.
Proposed Amendment
    Section 2K2.1(b)(4)(B) is amended by striking ``had an altered or 
obliterated serial number'' and inserting ``(i) had an altered or 
obliterated serial number; or (ii) was not otherwise marked with a 
serial number [(other than an antique firearm, as defined in 18 U.S.C. 
921(a)(16))]''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended--
    in Note 8(A)--
    in the first paragraph by striking ``However, if the offense 
involved a firearm with an altered or obliterated serial number, apply 
subsection (b)(4)(B)'' and inserting ``However, if the offense involved 
a firearm with an altered or obliterated serial number, or that was not 
otherwise marked with a serial number [(other than an antique firearm, 
as defined in 18 U.S.C. 921(a)(16))], apply subsection (b)(4)(B)(i) or 
(ii)'';
    and by striking the second paragraph as follows:
    ``Similarly, if the offense to which Sec.  2K2.1 applies is 18 
U.S.C. 922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an 
altered or obliterated serial number) and the base offense level is 
determined under subsection (a)(7), do not apply the enhancement in 
subsection (b)(4)(B). This is because the base offense level takes into 
account that the firearm had an altered or obliterated serial number. 
However, it the offense involved a stolen firearm or stolen ammunition, 
apply subsection (b)(4)(A).'',
    and inserting the following:
    ``Similarly, if the offense to which Sec.  2K2.1 applies is 18 
U.S.C. 922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an 
altered or obliterated serial number) and the base offense level is 
determined under subsection (a)(7), do not apply the enhancement in 
subsection (b)(4)(B)(i). This is because the base offense level takes 
into account that the firearm had an altered or obliterated serial 
number. However, it the offense involved a stolen firearm or stolen 
ammunition, or a firearm that was not otherwise marked with a serial 
number [(other than an antique firearm, as defined in 18 U.S.C. 
921(a)(16))], apply subsection (b)(4)(A) or (B)(ii).'';
    and in Note 8(B) by striking ``Subsection (b)(4) applies regardless 
of whether the defendant knew or had reason to believe that the firearm 
was stolen or had an altered or obliterated serial number'' and 
inserting ``Subsection (b)(4) applies regardless of whether the 
defendant knew or had reason to believe that the firearm was stolen, 
had an altered or obliterated serial number, or was not otherwise 
marked with a serial number [(other than an antique firearm, as defined 
in 18 U.S.C. 921(a)(16))]''.
Issue for Comment
    1. Part B of the proposed amendment would expand the scope of 
subsection (b)(4) of Sec.  2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition) to address firearms that are not 
marked with a serial number [(other than an antique firearm, as defined 
in 18 U.S.C. 921(a)(16))], in addition to firearms that were stolen or 
had an altered or obliterated serial number. The Commission seeks 
comment on whether it should further revise the enhancement at Sec.  
2K2.1(b)(4). For example, should the Commission insert into Sec.  
2K2.1(b)(4) a mental state (mens rea) requirement that the defendant 
knew, or had reason to believe, that the firearm was stolen, had an 
altered or obliterated serial number, or was not otherwise marked with 
a serial number (other than an antique

[[Page 7198]]

firearm, as defined in 18 U.S.C. 921(a)(16))?

(C) Issues for Comment on Further Revisions to Sec.  2K2.1

    1. Parts A of the proposed amendment would amend Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) 
to respond to the Bipartisan Safer Communities Act. Part B of the 
proposed amendment would amend Sec.  2K2.1 to address concerns 
expressed by some commenters about firearms that are not marked by a 
serial number (i.e., ``ghost guns''). The Commission seeks comment on 
whether it should further revise Sec.  2K2.1 to appropriately address 
firearms offenses.
    2. Offenses under 18 U.S.C. 922(u) are referenced to Sec.  2K2.1. 
Section 922(u) prohibits stealing or unlawfully taking or carrying away 
from the person or the premises of a person who is licensed to engage 
in the business of importing, manufacturing, or dealing in firearms, 
any firearm in the licensee's business inventory that has been shipped 
or transported in interstate or foreign commerce. The Department of 
Justice has expressed concerns that all offenses under 18 U.S.C. 
922(u), which covers conduct of varying severity (including simple 
theft, burglary, and robbery), are treated the same in Sec.  2K2.1. 
According to the Department of Justice, burglaries and robberies of 
federal firearms licensees are particularly dangerous crimes that often 
involve multiple weapons. Currently, Sec.  2K2.1 provides at subsection 
(b)(4)(A) a 2-level enhancement if any firearm was stolen. Application 
Note 8(A) of Sec.  2K2.1 provides that this 2-level enhancement should 
not apply if the base offense level is set at level 12 under Sec.  
2K2.1(a)(7) (e.g., a defendant convicted under 18 U.S.C. 922(u)) 
because the base offense level takes into account that the firearm or 
ammunition was stolen. The Commission seeks comment on whether it 
should amend Sec.  2K2.1 to specifically address offenses where the 
offense involved the burglary or robbery of a federal firearms 
licensee. For example, should the Commission add an enhancement to 
Sec.  2K2.1 that would be applicable if the offense involved the 
burglary or robbery of a federal firearms licensee? If so, what level 
of enhancement should the Commission set forth for such conduct? How 
should this enhancement interact with the stolen firearms enhancement 
at Sec.  2K2.1(b)(4)(A)? Should the Commission provide that both 
enhancements are to be applied cumulatively or in the alternative?
    3. The base offense levels at Sec.  2K2.1(a) include as factors 
that form the basis for their application certain recidivism 
requirements, such as whether the defendant committed the instant 
offense subsequent to sustaining one or more felony convictions of 
either a crime of violence or controlled substance offense. The 
Commission seeks comment on whether it should add other types of prior 
convictions as the basis for applying base offense levels or specific 
offense characteristics, and what base offense level or offense level 
increase should the Commission provide for any such prior conviction. 
For example, should the Commission provide for increased penalties if 
the defendant committed the instant offense subsequent to sustaining a 
conviction or multiple convictions for a misdemeanor crime of domestic 
violence or an offense that involved a firearm? If so, should the 
Commission treat prior convictions for a misdemeanor crime of domestic 
violence or an offense that involved a firearm the same as prior 
convictions for a crime of violence or a controlled substance offense 
and provide the same level of enhancement? If not, what base offense 
level or offense level increase should the Commission set forth for 
prior convictions for a misdemeanor crime of domestic violence or an 
offense that involved a firearm?
    4. The general definition of ``firearm'' in Sec.  2K2.1 at 
Application Note 1 is drawn from 18 U.S.C. 921(a)(3). However, Sec.  
2K2.1 applies a higher base offense level to offenses involving 
firearms described in 26 U.S.C. 5845(a). Although section 5845(a) 
generally defines a more limited class of firearms than section 
921(a)(3), there are a limited number of devices--such as those 
``designed and intended solely and exclusively . . . for use in 
converting a weapon into a machinegun'' which are ``firearms'' under 
section 5845(a) but not section 921(a)(3). Thus, such devices are 
``firearms'' for purposes of the increased base offenses levels in 
Sec.  2K2.1(a)(1), (a)(3), (a)(4)(B)(i)(II), and (a)(5), but not for 
purposes of specific offense characteristics referring to ``firearms,'' 
such as Sec.  2K2.1(b)(1). The Commission seeks comment on whether it 
should amend the definition of ``firearms'' in Application Note 1 of 
Sec.  2K2.1 to include devices which are ``firearms'' under section 
5845(a) but not section 921(a)(3).
    5. The Commission seeks general comment on whether it should amend 
Sec.  2K2.1 to increase penalties for defendants who transfer a firearm 
to a minor. If so, how?

4. Circuit Conflicts

    Synopsis of Proposed Amendment: This proposed amendment addresses 
certain circuit conflicts involving Sec.  3E1.1 (Acceptance of 
Responsibility) and Sec.  4B1.2 (Definitions of Terms Used in Section 
4B1.1). See U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 87 FR 
67756 (Nov. 9, 2022) (identifying resolution of circuit conflicts as a 
priority, including the circuit conflicts concerning (A) whether the 
government may withhold a motion pursuant to Sec.  3E1.1(b) because a 
defendant moved to suppress evidence; and (B) whether an offense must 
involve a substance controlled by the Controlled Substances Act (21 
U.S.C. 801 et seq.) to qualify as a ``controlled substance offense'' 
under Sec.  4B1.2(b)). 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 mutually exclusive.
    Part A of the proposed amendment would amend Sec.  3E1.1 and its 
accompanying commentary to address circuit conflicts regarding the 
permissible bases for withholding a reduction under Sec.  3E1.1(b). It 
would set forth a definition of the term ``preparing for trial'' that 
provides more clarity on what actions typically constitute preparing 
for trial for the purposes of Sec.  3E1.1(b). An issue for comment is 
also provided.
    Part B of the proposed amendment would amend Sec.  4B1.2 by adding 
a definition of the term ``controlled substance'' to address a circuit 
conflict concerning whether the definition of ``controlled substance 
offense'' in Sec.  4B1.2(b) only covers offenses involving substances 
controlled by federal law. Two options are presented. An issue for 
comment is also included.

(A) Circuit Conflicts Concerning Sec.  3E1.1(b)

    Synopsis of Proposed Amendment: Subsection (a) of Sec.  3E1.1 
(Acceptance of Responsibility) provides for a 2-level reduction for a 
defendant who clearly demonstrates acceptance of responsibility for the 
offense. See USSG Sec.  3E1.1(a). Subsection (b) of Sec.  3E1.1 sets 
forth the circumstances under which a defendant is eligible for an 
additional 1-level reduction by providing:
    If the defendant qualifies for a decrease under subsection (a), the 
offense level determined prior to the operation of subsection (a) is 
level 16 or greater, and upon motion of the government stating that the 
defendant has assisted authorities in the investigation or prosecution 
of his own

[[Page 7199]]

misconduct by timely notifying authorities of his intention to enter a 
plea of guilty, thereby permitting the government to avoid preparing 
for trial and permitting the government and the court to allocate their 
resources efficiently, decrease the offense level by 1 additional 
level. USSG Sec.  3E1.1(b).
    Section 401(g) of the Prosecutorial Remedies and Other Tools to end 
the Exploitation of Children Today Act of 2003 (``PROTECT Act''), among 
other things, directly amended Sec.  3E1.1(b) to include the language 
requiring a government motion and consideration of government 
resources. See Public Law 108-21, 401(g)(1), 117 Stat. 650 (2003). The 
PROTECT Act also added the following sentence to Application Note 6 of 
the Commentary to Sec.  3E1.1: ``Because the Government is in the best 
position to determine whether the defendant has assisted authorities in 
a manner that avoids preparing for trial, an adjustment under 
subsection (b) may only be granted upon a formal motion by the 
Government at the time of sentencing.'' Id. Sec.  401(g)(2).
    In 2013, the Commission promulgated Amendment 775 to address two 
circuit conflicts over the Sec.  3E1.1(b) motion requirement. See USSG 
App. C, amend. 775 (effective Nov. 1, 2013). Among other things, the 
amendment added the following sentence to Application Note 6: ``The 
government should not withhold such a motion based on interests not 
identified in Sec.  3E1.1, such as whether the defendant agrees to 
waive his or her right to appeal.'' Id.
    Two circuit conflicts have arisen relating to Sec.  3E1.1(b). The 
first conflict concerns whether a Sec.  3E1.1(b) reduction may be 
withheld or denied because a defendant moved to suppress evidence. 
Justice Sotomayor, joined by Justice Gorsuch, recently ``emphasize[d] 
the need for clarification from the Commission'' on this ``important 
and longstanding split.'' Longoria v. United States, 141 S. Ct. 978, 
979 (2021) (statement of Sotomayor, J., with whom Gorsuch, J. joins, 
respecting the denial of certiorari). The second conflict concerns 
whether the government may withhold a Sec.  3E1.1(b) motion where the 
defendant has raised sentencing challenges.
    These conflicts largely turn on how much discretion the government 
has to withhold a motion under Sec.  3E1.1(b). Some circuits use the 
analytical framework from Wade v. United States, 504 U.S. 181, 185-86 
(1992), applicable to substantial assistance motions under Sec.  5K1.1 
(Substantial Assistance to Authorities) (Policy Statement) and 18 
U.S.C. 3553(e)--that the government's discretion is broad, but refusal 
to file a motion cannot be based on ``an unconstitutional motive'' or a 
reason ``not rationally related to any legitimate Government end.'' 
Other circuits specify that withholding is permissible if based on an 
interest identified in Sec.  3E1.1. Courts also have grappled with 
whether the government's discretion is limited to situations involving 
trial preparation, and whether suppression motions or sentencing 
disputes are enough like trial preparation to withhold a motion.
    In relation to the first circuit conflict, the Third, Fifth, and 
Sixth Circuits have permitted the government to withhold a Sec.  
3E1.1(b) motion based on a suppression motion. See, e.g., United States 
v. Longoria, 958 F.3d 372, 376-78 (5th Cir. 2020) (Amendment 775 did 
not clearly overrule its caselaw ``allowing the government to withhold 
the third point when it must litigate a suppression motion''; 
suppression hearing was largely the ``substantive equivalent of a full 
trial'' (quoting United States v. Gonzales, 19 F.3d 982, 984 (5th Cir. 
1994))), cert. denied, 141 S. Ct. 978 (2021); United States v. Collins, 
683 F.3d 697, 707 (6th Cir. 2012) (suppression motion required the 
government ``to undertake trial-like preparations''; ``Avoiding 
litigation on a motion to suppress is rationally related to the 
legitimate government interest in the efficient allocation of its 
resources. Accordingly . . . the government's decision to withhold the 
Sec.  3E1.1(b) motion was not arbitrary or unconstitutionally 
motivated.''); United States v. Drennon, 516 F.3d 160, 161, 163 (3d 
Cir. 2008) (suppression hearing involved ``the large majority of the 
work to prepare for trial''; motion withheld due to ``concern for the 
efficient allocation of the government's litigating resources,'' not an 
unconstitutional motive).
    The First, Second, Ninth, Tenth, and D.C. Circuits have held that a 
reduction may not be denied based on a suppression motion. See, e.g., 
United States v. Vargas, 961 F.3d 566, 582-84 (2d Cir. 2020) (district 
court erred in denying government's Sec.  3E1.1(b) motion because of 
suppression hearing; any ``experienced criminal lawyer knows that 
preparing for a jury trial involves more work than preparing for a 
suppression hearing''); United States v. Price, 409 F.3d 436, 443-44 
(D.C. Cir. 2005) (district court erred in denying additional reduction 
based on suppression motion; while government had to prepare for a 
suppression hearing, ``it never had to prepare for trial''); United 
States v. Marquez, 337 F.3d 1203, 1212 (10th Cir. 2003) (``district 
court may not rely on the fact that the defendant filed a motion to 
suppress requiring a `lengthy suppression hearing' to justify a denial 
of the third level reduction''; even where issues substantially 
overlap, ``preparation for a motion to suppress would not require the 
preparation of voir dire questions, opening statements, closing 
arguments, and proposed jury instructions, to name just a few 
examples''); United States v. Marroquin, 136 F.3d 220, 225 (1st Cir. 
1998) (``[g]uidelines do not force a defendant to forgo the filing of 
routine pre-trial motions as the price of receiving a one-step 
decrease''); United States v. Kimple, 27 F.3d 1409, 1415 (9th Cir. 
1994) (district court erred in denying the additional reduction where 
``resources were expended not in conducting trial preparation, but in 
considering pretrial motions [including suppression motion] necessary 
to protect [the defendant's] rights'').
    With respect to the second circuit conflict, the First, Third, 
Seventh, and Eighth Circuits have held that the government may withhold 
a Sec.  3E1.1(b) motion where the defendant has raised sentencing 
challenges. See, e.g., United States v. Adair, 38 F.4th 341, 361 (3d 
Cir. 2022) (government properly withheld motion where defendant 
``caused [the government] to have to prepare for a two-day sentencing 
hearing''; government did not act with an unconstitutional motive); 
United States v. Jordan, 877 F.3d 391, 395 (8th Cir. 2017) (defendant's 
denial of conduct relevant to sentencing did not ``permit[ ] the 
government and the court to allocate their resources efficiently'' 
(citation omitted)); United States v. Sainz-Preciado, 566 F.3d 708, 716 
(7th Cir. 2009) (government had ``good reason'' to withhold motion 
where it had to prepare ``testimony and other evidence to prove the 
full scope of [defendant's] criminal conduct at the sentencing 
hearing''); United States v. Beatty, 538 F.3d 8, 16-17 (1st Cir. 2008) 
(within the government's broad discretion to withhold motion where 
government reasonably determined that the defendant frivolously 
contested issues related to sentencing). The Second and Fifth Circuits 
have held that the government may not withhold a motion on this basis. 
See, e.g., United States v. Castillo, 779 F.3d 318, 324-26 (5th Cir. 
2015) (``we disagree that the government may withhold a Sec.  3E1.1(b) 
motion simply because it has had to use its resources to litigate a 
sentencing issue''; however, dispute must be in good faith); United 
States v. Lee, 653 F.3d 170, 174 (2d Cir. 2011) (``As long as the 
defendant disputes the accuracy of a factual assertion in the PSR in 
good

[[Page 7200]]

faith, the government abuses its authority by refusing to move for a 
third-point reduction because the defendant has invoked his right to a 
Fatico hearing.'').
    Part A of the proposed amendment would amend Sec.  3E1.1(b) to 
provide a definition of the term ``preparing for trial.'' It would also 
delete the following sentence in Application Note 6 of the Commentary 
to Sec.  3E1.1: ``The government should not withhold such a motion 
based on interests not identified in Sec.  3E1.1, such as whether the 
defendant agrees to waive his or her right to appeal.''
    An issue for comment is provided.
Proposed Amendment
    Section 3E1.1(b) is amended by inserting after ``1 additional 
level.'' the following:
    ``For the purposes of this guideline, the term `preparing for 
trial' means substantive preparations taken to present the government's 
case against the defendant to a jury (or judge, in the case of a bench 
trial) at trial. `Preparing for trial' is ordinarily indicated by 
actions taken close to trial, such as drafting in limine motions, 
proposed voir dire questions and jury instructions, and witness and 
exhibit lists. Preparation for early pretrial proceedings (such as 
litigation related to a charging document, early discovery motions, and 
early suppression motions) ordinarily are not considered `preparing for 
trial' under this subsection. Post-conviction matters (such as 
sentencing objections, appeal waivers, and related issues) are not 
considered `preparing for trial.' ''.
    The Commentary to Sec.  3E1.1 captioned ``Application Notes'' is 
amended in Note 6 by striking ``The government should not withhold such 
a motion based on interests not identified in Sec.  3E1.1, such as 
whether the defendant agrees to waive his or her right to appeal.''.
Issue for Comment
    1. Part A of the proposed amendment would amend Sec.  3E1.1 
(Acceptance of Responsibility) to address the circuit conflicts 
described in the synopsis above. The proposed amendment would amend 
subsection (b) of Sec.  3E1.1 to provide a definition for the term 
``preparing for trial.'' The Commission seeks comment on whether the 
proposed definition of ``preparing for trial'' is appropriate for 
purposes of Sec.  3E1.1(b). If not, what definition should the 
Commission provide?
    In the alternative, should the Commission address the circuit 
conflicts in a manner other than the one provided in Part A of the 
proposed amendment? For example, should the Commission address the 
breadth of the government's discretion to withhold a Sec.  3E1.1(b) 
motion, either by incorporating the framework outlined in Wade v. 
United States, 504 U.S. 181, 185-86 (1992) (i.e., an ``unconstitutional 
motive'' or a reason ``not rationally related to any legitimate 
Government end'') (see, e.g., United States v. Adair, 38 F.4th 341, 361 
(3d Cir. 2022)), or by specifying a different standard?

(B) Circuit Conflicts Concerning Sec.  4B1.2(b)

    Synopsis of Proposed Amendment: Subsection (b) of Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1) defines a ``controlled 
substance offense'' as ``an offense under federal or state law . . . 
that prohibits the manufacture, import, export, distribution, or 
dispensing of a controlled substance (or a counterfeit substance) or 
the possession of a controlled substance (or a counterfeit substance) 
with intent to manufacture, import, export, distribute, or dispense.'' 
USSG Sec.  4B1.2(b). The definition in Sec.  4B1.2(b) principally 
applies to the career offender guideline at Sec.  4B1.1 (Career 
Offender). However, several other guidelines incorporate this 
definition by reference, often providing for higher base offense levels 
if the defendant committed the instant offense after sustaining a 
conviction for a ``controlled substance offense.'' See USSG Sec. Sec.  
2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive 
Materials; Prohibited Transactions Involving Explosive Materials), 
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition), 
4B1.4 (Armed Career Criminal), 5K2.17 (Semiautomatic Firearms Capable 
of Accepting Large Capacity Magazine (Policy Statement)), and 7B1.1 
(Classification of Violations (Policy Statement)).
    The circuits are split regarding whether the definition of a 
``controlled substance offense'' in Sec.  4B1.2(b) only covers offenses 
involving substances controlled by the federal Controlled Substances 
Act (``CSA'') (21 U.S.C. 801 et seq.), or whether the definition also 
applies to offenses involving substances controlled by applicable state 
law. This circuit conflict prompted Justice Sotomayor, joined by 
Justice Barrett, to call for the Commission to ``address this division 
to ensure fair and uniform application of the [g]uidelines.'' Guerrant 
v. United States, 142 S. Ct. 640, 640-41 (2022) (statement of 
Sotomayor, J., with whom Barrett, J. joins, respecting the denial of 
certiorari).
    The Second and Ninth Circuits have held that a ``controlled 
substance offense'' only includes offenses involving substances 
controlled by federal law (the CSA), not offenses involving substances 
that a state's schedule lists as a controlled substance, but the CSA 
does not. See United States v. Bautista, 989 F.3d 698, 705 (9th Cir. 
2021) (conviction under Arizona statute criminalizing hemp as well as 
marijuana is not a ``controlled substance offense'' because hemp is not 
listed in the CSA); United States v. Townsend, 897 F.3d 66, 74 (2d Cir. 
2018) (conviction under New York statute prohibiting the sale of Human 
Chorionic Gonadotropin (``HCG'') is not a ``controlled substance 
offense'' because HCG is not controlled under the CSA).
    By contrast, the Fourth, Seventh, Eighth, and Tenth Circuits have 
held that a state conviction involving a controlled substance that is 
not identified in the CSA can qualify as a ``controlled substance 
offense'' under the guidelines. See United States v. Jones, 15 F.4th 
1288, 1295 (10th Cir. 2021) (definition of ``controlled substance 
offense'' includes ``state-law controlled substance offenses, involving 
substances not found on the CSA''), cert. denied, 143 S. Ct. 268 
(2022); United States v. Henderson, 11 F.4th 713, 718 (8th Cir. 2021) 
(``There is no requirement that the particular substance underlying the 
state offense is also controlled under a distinct federal law.''), 
cert. denied, 142 S. Ct. 1696 (2022); United States v. Ward, 972 F.3d 
364, 374 (4th Cir. 2020) (``the Commission has specified that we look 
to either the federal or state law of conviction to define whether an 
offense will qualify [as a controlled substance offense].''), cert 
denied, 141 S. Ct. 2864 (2021); United States v. Ruth, 966 F.3d 642, 
654 (7th Cir. 2020) (``The career-offender guideline defines the term 
controlled substance offense broadly, and the definition is most 
plainly read to `include state-law offenses[.]' '' (citation quotation 
omitted)), cert. denied, 141 S. Ct. 1239 (2021).
    Part B of the proposed amendment would amend Sec.  4B1.2(b) to 
include a definition for ``controlled substance'' to address the 
circuit conflict. Two options are provided.
    Option 1 would set forth a definition of ``controlled substance'' 
that adopts the approach of the Second and Ninth Circuits. It would 
limit the definition of the term to substances that are specifically 
included in the CSA.
    Option 2 would set forth a definition of ``controlled substance'' 
that adopts

[[Page 7201]]

the approach of the Fourth, Seventh, Eighth, and Tenth Circuits. It 
would provide that the term ``controlled substance'' refers to 
substances either included in the CSA or otherwise controlled under 
applicable state law.
    An issue for comment is also provided.
Proposed Amendment
    Section 4B1.2(b) is amended by adding at the end the following new 
paragraph:
    [Option 1 (Controlled Substances under Federal Law):
    `` `Controlled substance' refers to a drug or other substance, or 
immediate precursor, included in schedule I, II, III, IV, or V of the 
Controlled Substances Act (21 U.S.C. 801 et seq.).''.]
    [Option 2 (Controlled Substances under Federal or State Law):
    `` `Controlled substance' refers to a drug or other substance, or 
immediate precursor, either included in schedule I, II, III, IV, or V 
of the Controlled Substances Act (21 U.S.C. 801 et seq.) or otherwise 
controlled under applicable state law.''.]
Issue for Comment
    1. Part B of the proposed amendment would amend subsection (b) of 
Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1) to set forth a 
definition of ``controlled substance.'' Two options are provided for 
such definition.
    The Commentary to Sec.  2L1.2 (Unlawfully Entering or Remaining in 
the United States) contains a definition for the term ``drug 
trafficking offense'' that closely tracks the definition of 
``controlled substance offense'' in Sec.  4B1.2(b). See USSG Sec.  
2L1.2, comment. (n.2). If the Commission were to amend Sec.  4B1.2(b) 
to include a definition of ``controlled substance,'' should the 
Commission also amend Application Note 2 to Sec.  2L1.2 to include the 
same definition of ``controlled substance'' for purposes of the ``drug 
trafficking offense'' definition?

5. Crime Legislation

    Synopsis of Proposed Amendment: This proposed amendment responds to 
recently enacted legislation. See U.S. Sent'g Comm'n, ``Notice of Final 
Priorities,'' 87 FR 67756 (Nov. 9, 2022) (identifying as a priority 
``[i]mplementation of any legislation warranting Commission action'').
    The proposed amendment contains eleven parts (Parts A through K). 
The Commission is considering whether to promulgate any or all these 
parts, as they are not mutually exclusive.
    Part A responds to the FDA Reauthorization Act of 2017, Public Law 
115-52 (2017), by amending Appendix A (Statutory Index) and the 
Commentary to Sec.  2N2.1 (Violations of Statutes and Regulations 
Dealing with Any Food, Drug, Biological Product, Device, Cosmetic, 
Agricultural Product, or Consumer Product). It also makes a technical 
correction to the Commentary to Sec.  2N1.1 (Tampering or Attempting to 
Tamper Involving Risk of Death or Bodily Injury). An issue for comment 
is also provided.
    Part B responds to the Allow States and Victims to Fight Online Sex 
Trafficking Act of 2017, Public Law 115-164 (2018), by amending 
Appendix A, Sec.  2G1.1 (Promoting a Commercial Sex Act or Prohibited 
Sexual Conduct with an Individual Other than a Minor), and 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). 
In addition, Part B brackets the possibility of amending the Commentary 
to Sec. Sec.  4B1.5 (Repeat and Dangerous Sex Offender Against Minors) 
and 5D1.2 (Term of Supervised Release) to exclude offenses under 18 
U.S.C. 2421A from the definitions of ``covered sex offense'' and ``sex 
offense.'' Issues for comment are also provided.
    Part C responds to the FAA Reauthorization Act of 2018, Public Law 
115-254 (2018), by amending Appendix A and Sec.  2A5.2 (Interference 
with Flight Crew Member or Flight Attendant; Interference with 
Dispatch, Navigation, Operation, or Maintenance of Mass Transportation 
Vehicle), as well as the Commentary to Sec. Sec.  2A2.4 (Obstructing or 
Impeding Officers) and 2X5.2 (Class A Misdemeanors (Not Covered by 
Another Specific Offense Guideline)). An issue for comment is also 
provided.
    Part D responds to the SUPPORT for Patients and Communities Act, 
Public Law 115-271 (2018), by amending Appendix A and the Commentary to 
Sec. Sec.  2B1.1 (Theft, Property Destruction, and Fraud) and 2B4.1 
(Bribery in Procurement of Bank Loan and Other Commercial Bribery). An 
issue for comment is also provided.
    Part E responds to the Amy, Vicky, and Andy Child Pornography 
Victim Assistance Act of 2018, Public Law 115-299 (2018), by amending 
Appendix A and the Commentary to Sec.  2X5.2. An issue for comment is 
also provided.
    Part F responds to the Foundations for Evidence-Based Policymaking 
Act of 2018, Public Law 115-435 (2019), by amending Appendix A and the 
Commentary to Sec.  2H3.1 (Interception of Communications; 
Eavesdropping; Disclosure of Certain Private or Protected Information). 
An issue for comment is also provided.
    Part G responds to the National Defense Authorization Act for 
Fiscal Year 2020, Public Law 116-92 (2019), by amending Appendix A and 
the Commentary to Sec.  2X5.2. An issue for comment is also provided.
    Part H responds to the Representative Payee Fraud Prevention Act of 
2019, Public Law 116-126 (2020), by amending Appendix A and the 
Commentary to Sec.  2B1.1. An issue for comment is also provided.
    Part I responds to the Stop Student Debt Relief Scams Act of 2019, 
Public Law 116-251 (2020), by amending Appendix A and the Commentary to 
Sec.  2B1.1. An issue for comment is also provided.
    Part J responds to the Protecting Lawful Streaming Act of 2020, 
part of the Consolidation Appropriation Act, 2021, Public Law 116-260 
(2020), by amending Appendix A. Issues for comment are also provided.
    Part K responds to the William M. (Mac) Thornberry National Defense 
Authorization Act for Fiscal Year 2021, Public Law 116-283 (2021), by 
amending Appendix A and the Commentary to Sec.  2S1.3 (Structuring 
Transactions to Evade Reporting Requirements; Failure to Report Cash or 
Monetary Transactions; Failure to File Currency and Monetary Instrument 
Report; Knowingly Filing False Reports; Bulk Cash Smuggling; 
Establishing or Maintaining Prohibited Accounts). An issue for comment 
is also provided.

(A) FDA Reauthorization Act of 2017

    Synopsis of Proposed Amendment: Part A of the proposed amendment 
responds to the FDA Reauthorization Act of 2017, Public Law 115-52 
(2017).
    That act amended 21 U.S.C. 333 (Penalties [for certain violations 
of the Federal Food, Drug, and Cosmetic Act]) to add a new criminal 
offense for the manufacture or distribution of a counterfeit drug. The 
new offense states that
any person who violates [21 U.S.C. 331(i)(3)] by knowingly making, 
selling, or dispensing, or holding for sale or dispensing, a 
counterfeit drug shall be imprisoned for not more than 10 years or 
fined in accordance with title 18, [United States Code,] or both.

21 U.S.C. 333(b)(8). Section 331(i)(3) prohibits any action which 
causes a drug to be a counterfeit drug, or the sale or dispensing, or 
the holding for sale or dispensing, of a counterfeit drug.


[[Page 7202]]


    Currently, subsections (b)(1) through (b)(6) of 21 U.S.C. 333 are 
referenced in Appendix A (Statutory Index) to Sec.  2N2.1 (Violations 
of Statutes and Regulations Dealing With Any Food, Drug, Biological 
Product, Device, Cosmetic, or Agricultural Product). Subsection (b)(7) 
is referenced to Sec.  2N1.1 (Tampering or Attempting to Tamper 
Involving Risk of Death or Bodily Injury). New subsection (b)(8) is not 
referenced to any guideline.
    Part A of the proposed amendment would amend Appendix A to 
reference 21 U.S.C. 333(b)(8) to Sec.  2N2.1. Part A would also amend 
the Commentary to Sec.  2N2.1 to reflect that subsection (b)(8), as 
well as subsections (b)(1) through (b)(6), of 21 U.S.C. 333 are all 
referenced to Sec.  2N2.1. Finally, Part A also makes a technical 
change to the Commentary to Sec.  2N1.1, adding 21 U.S.C. 333(b)(7) to 
the list of statutory provisions referenced to that guideline.
    An issue for comment is also provided.
Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 21 U.S.C. 458 the following new line reference:

``21 U.S.C. 333(b)(8) 2N2.1''.

    The Commentary to Sec.  2N2.1 captioned ``Statutory Provisions'' is 
amended by striking ``333(a)(1), (a)(2), (b)'' and inserting 
``333(a)(1), (a)(2), (b)(1)-(6), (b)(8)''.
    The Commentary to Sec.  2N1.1 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. 1365(a), (e)'' and inserting ``18 
U.S.C. 1365(a), (e); 21 U.S.C. 333(b)(7). For additional statutory 
provision(s), see Appendix A (Statutory Index)''.
Issue for Comment
    1. In response to the FDA Reauthorization Act of 2017, Public Law 
115-52 (2017), Part A of the proposed amendment would reference 21 
U.S.C. 333(b)(8) to Sec.  2N2.1 (Violations of Statutes and Regulations 
Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, 
Agricultural Product, or Consumer Product). The Commission seeks 
comment on whether any additional changes to the guidelines are 
required to account for section 333(b)(8)'s offense conduct. 
Specifically, should the Commission amend Sec.  2N2.1 to provide a 
higher or lower base offense level if 21 U.S.C. 333(b)(8) is the 
offense of conviction? If so, what should that base offense level be 
and why? Should the Commission add a specific offense characteristic to 
Sec.  2N2.1 in response to section 333(b)(8)? If so, what should that 
specific offense characteristic provide and why?

(B) Allow States and Victims To Fight Online Sex Trafficking Act of 
2017

    Synopsis of Proposed Amendment: Part B of the proposed amendment 
responds to the Allow States and Victims to Fight Online Sex 
Trafficking Act of 2017, Public Law 115-164 (2018).
    That act created two new criminal offenses codified at 18 U.S.C. 
2421A (Promotion or facilitation of prostitution and reckless disregard 
of sex trafficking). The first new offense, codified at 18 U.S.C. 
2421A(a), provides that

[w]hoever, using a facility or means of interstate or foreign commerce 
or in or affecting interstate or foreign commerce, owns, manages, or 
operates an interactive computer service . . . , or conspires or 
attempts to do so, with the intent to promote or facilitate the 
prostitution of another person shall be fined under this title, 
imprisoned for not more than 10 years, or both.

    The second new offense, codified at 18 U.S.C. 2421A(b), is an 
aggravated form of the first. It provides an enhanced statutory maximum 
penalty of 25 years for anyone who commits the first offense and either 
``(1) promotes or facilitates the prostitution of 5 or more persons'' 
or ``(2) acts in reckless disregard of the fact that such conduct 
contributed to sex trafficking, in violation of [18 U.S.C. ] 1591(a).'' 
Section 1591(a) criminalizes sex trafficking of a minor or sex 
trafficking of anyone by force, threats of force, fraud, or coercion.
    Part B of the proposed amendment would amend Appendix A (Statutory 
Index) to reference 18 U.S.C. 2421A to Sec.  2G1.1 (Promoting a 
Commercial Sex Act or Prohibited Sexual Conduct with an Individual 
Other than a Minor) and 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). Offenses involving the promotion or 
facilitation of commercial sex acts are generally referenced to these 
guidelines.
    If the offense did not involve a minor, Sec.  2G1.1 would be the 
applicable guideline. For a defendant convicted under 18 U.S.C. 2421A, 
subsection (a)(2) would apply, and the defendant's base offense level 
would be level 14. Part B of the proposed amendment would amend Sec.  
2G1.1(b)(1) so that the four-level increase in the defendant's offense 
level provided by that specific offense characteristic would also apply 
if subsection (a)(2) applies and [the offense of conviction is][the 
offense involved conduct described in] 18 U.S.C. 2421A(b)(2). Section 
2421A(b)(2) is the version of the new aggravated offense under which 
the defendant has acted in reckless disregard of the fact that their 
conduct contributed to sex trafficking in violation of 18 U.S.C. 
1591(a).
    If the offense involved a minor, Sec.  2G1.3 would be the 
applicable guideline. For a defendant convicted under 18 U.S.C. 2421A, 
subsection (a)(4) would apply, and the defendant's base offense level 
would be level 24. Part B of the proposed amendment would amend Sec.  
2G1.3(b)(4) to renumber the existing specific offense characteristic as 
Sec.  2G1.3(b)(4)(A) and to add a new Sec.  2G1.3(b)(4)(B), which 
provides for a [4]-level increase in the defendant's offense level if 
(i) subsection (a)(4) applies; and (ii) [the offense of conviction 
is][the offense involved conduct described in] 18 U.S.C. 2421A(b)(2). 
Only the greater of Sec.  2G1.3(b)(4)(A) or Sec.  2G1.3(b)(4)(B) would 
apply.
    Part B of the proposed amendment also would amend the Commentary to 
Sec.  2G1.3 to add a new application note instructing that if 18 U.S.C. 
2421A(a) or Sec.  2421A(b)(1) is the offense of conviction, the 
specific offense characteristic at Sec.  2G1.3(b)(3)(B) does not apply. 
That special offense characteristic provides for a two-level increase 
in the defendant's offense level if the offense involved the use of a 
computer or an interactive computer service to entice, encourage, 
offer, or solicit a person to engage in prohibited sexual conduct with 
a minor.
    Part B of the proposed amendment would make conforming changes to 
Sec. Sec.  2G1.1 and 2G1.3 and their accompanying commentary.
    Finally, 18 U.S.C. 2421A is codified in chapter 117 (Transportation 
for Illegal Sexual Activity and Related Crimes) of title 18 of the 
United States Code, which contains statutes that generally prohibit 
conduct intended to promote or facilitate prostitution. Various 
guidelines refer to chapter 117 overall, including Sec.  4B1.5 (Repeat 
and Dangerous Sex Offender Against Minors) and Sec.  5D1.2 (Term of 
Supervised Release). Specifically, Sec.  4B1.5 provides for increases 
in the defendant's offense level if the offense of conviction is a 
``covered sex crime.'' The Commentary to Sec.  4B1.5 states that a 
``covered sex crime'' generally includes offenses under chapter 117 but 
excludes from coverage the offenses of ``transmitting information about 
a minor

[[Page 7203]]

or filing a factual statement about an alien individual.'' Section 
5D1.2 includes a policy statement recommending that the court impose 
the statutory maximum term of supervised release if the instant offense 
of conviction is a ``sex offense.'' The Commentary to Sec.  5D1.2 
defines ``sex offense'' to mean, among other things, an offense, 
perpetrated against a minor, under chapter 117, ``not including 
transmitting information about a minor or filing a factual statement 
about an alien individual.'' Part B of the proposed amendment brackets 
the possibility of amending the Commentary to Sec. Sec.  4B1.5 and 
5D1.2 to exclude offenses under 18 U.S.C. 2421A from the definitions of 
``covered sex offense'' and ``sex offense.''
    Issues for comment are also provided.
Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 18 U.S.C. 2422 the following new line reference:

``18 U.S.C. 2421A 2G1.1, 2G1.3''.

    Section 2G1.1(b)(1)(B) is amended by striking ``the offense 
involved fraud or coercion'' and inserting ``(i) the offense involved 
fraud or coercion, or (ii) [the offense of conviction is][the offense 
involved conduct described in] 18 U.S.C. 2421(A)(b)(2)''.
    The Commentary to Sec.  2G1.1 captioned ``Statutory Provisions'' is 
amended by striking ``2422(a) (only if the offense involved a victim 
other than a minor)'' and inserting ``2421A (only if the offense 
involved a victim other than a minor), 2422(a) (only if the offense 
involved a victim other than a minor). For additional statutory 
provision(s), see Appendix A (Statutory Index)''.
    Section 2G1.3(b) is amended in paragraph (4) by striking ``If (A) 
the offense involved the commission of a sex act or sexual contact; or 
(B) subsection (a)(3) or (a)(4) applies and the offense involved a 
commercial sex act, increase by 2 levels.'', and inserting the 
following:
    ``(Apply the greater):
    (A) If (i) the offense involved the commission of a sex act or 
sexual contact; or (ii) subsection (a)(3) or (a)(4) applies and the 
offense involved a commercial sex act, increase by 2 levels.
    (B) If (i) subsection (a)(4) applies; and (ii) [the offense of 
conviction is][the offense involved conduct described in] 18 U.S.C. 
2421A(b)(2), increase by [4] levels.''.
    The Commentary to Sec.  2G1.3 captioned ``Statutory Provisions'' is 
amended by striking ``2422 (only if the offense involved a minor), 
2423, 2425'' and inserting ``2421A (only if the offense involved a 
minor), 2422 (only if the offense involved a minor), 2423, 2425. For 
additional statutory provision(s), see Appendix A (Statutory Index)''.
    The Commentary to Sec.  2G1.3 captioned ``Application Notes'' is 
amended in Note 4 by striking the following:
    ``Application of Subsection (b)(3)(A).--Subsection (b)(3)(A) 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)(A) 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.'',
    and inserting the following:
    ``Application of Subsection (b)(3).--
    (A) Application of Subsection (b)(3)(A).--Subsection (b)(3)(A) 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)(A) 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.
    (B) Application of Subsection (b)(3)(B).--If the offense of 
conviction is 18 U.S.C. 2421A(a) or Sec.  2421A(b)(1), do not apply 
subsection (b)(3)(B).''.
    [The Commentary to Sec.  4B1.5 captioned ``Application Notes'' is 
amended in Note 2 by striking ``chapter 117 of such title, not 
including transmitting information about a minor or filing a factual 
statement about an alien individual'' and inserting ``chapter 117 of 
such title, not including transmitting information about a minor, 
filing a factual statement about an alien individual, or an offense 
under 18 U.S.C. 2421A''.]
    [The Commentary to Sec.  5D1.2 captioned ``Application Notes'' is 
amended in Note 1, in the paragraph that begins `` `Sex offense' 
means'', by striking ``chapter 117 of such title, not including 
transmitting information about a minor or filing a factual statement 
about an alien individual'' and inserting ``chapter 117 of such title, 
not including transmitting information about a minor, filing a factual 
statement about an alien individual, or an offense under 18 U.S.C. 
2421A''.]
Issues for Comment
    1. In response to the Allow States and Victims to Fight Online Sex 
Trafficking Act of 2017, Public Law 115-164 (2018), Part B of the 
proposed amendment would reference 18 U.S.C. 2421A to Sec.  2G1.1 
(Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an 
Individual Other than a Minor) and 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), and would make various 
revisions to those guidelines to account for the new statute's offense 
conduct. The Commission seeks comment on whether the proposed revisions 
are appropriate and on whether the Commission should make other changes 
to the guidelines to account for section 2421A's offense conduct.
    In particular, Part B of the proposed amendment would rely on the 
specific offense characteristics and special instructions in Sec. Sec.  
2G1.1 and 2G1.3 to produce the appropriate offense levels for the 
aggravated offense at 18 U.S.C. 2421A(b). Should the Commission account 
for the aggravated offense in a different way, for example, by 
providing a higher base offense level if a defendant is convicted of 
that offense? If so, should the Commission use one of the base offense 
levels currently provided for convictions under other offenses, such as 
level 28, provided by Sec.  2G1.3 for a conviction under 18 U.S.C. 
2422(b) or 2423(a), or level 34, provided by Sec. Sec.  2G1.1 and 2G1.3 
for a conviction under 18 U.S.C. 1591(b)(1)?
    2. The new offenses codified at 18 U.S.C. 2421A are included in 
chapter 117 (Transportation for Illegal Sexual Activity and Related 
Crimes) of title 18 of the United States Code, which contains statutes 
that generally prohibit conduct intended to promote or facilitate 
prostitution. As indicated in the synopsis, Sec. Sec.  4B1.5 and 5D1.2 
provide definitions for the terms ``covered sex crime'' and ``sex 
offense,'' respectively, that generally include offenses in chapter 117 
of title 18, with notable exceptions. The chapter 117 offenses that the 
Commission excluded from the definitions of ``covered sex crime'' and 
``sex offense'' do not criminalize conduct involving the direct sexual 
exploitation of a minor by the defendant, but rather are primarily 
concerned with the transmission or filing of information about 
individuals.
    Part B of the proposed amendment brackets the possibility of 
amending the Commentary to Sec. Sec.  4B1.5 and 5D1.2 to

[[Page 7204]]

exclude offenses under 18 U.S.C. 2421A from the definitions of 
``covered sex offense'' and ``sex offense.'' Section 2421A offenses 
generally involve the posting or sharing (i.e., transmission) of 
information about an individual, which may not necessarily involve the 
direct exploitation of a minor victim by the defendant. The Commission 
seeks comment on whether excluding offenses under 18 U.S.C. 2421A from 
the definitions of ``covered sex crime'' and ``sex offense'' for 
purposes of Sec. Sec.  4B1.5 and 5D1.2 is appropriate due to the nature 
of such offenses. Should the Commission, instead, include the 
aggravated form of the offense under 18 U.S.C. 2421A(b) in the 
definitions of ``covered sex crime'' and ``sex offense''?

(C) FAA Reauthorization Act of 2018

    Synopsis of Proposed Amendment: Part C of the proposed amendment 
responds to the FAA Reauthorization Act of 2018, Public Law 115-254 
(2018). That act created two new criminal offenses concerning the 
operation of unmanned aircraft, commonly known as ``drones,'' and added 
a new provision to an existing criminal statute that also concerns 
drones.
    The first new criminal offense, codified at 18 U.S.C. 39B (Unsafe 
operation of unmanned aircraft), prohibits the unsafe operation of 
drones. Specifically, section 39B(a)(1) prohibits any person from 
operating an unmanned aircraft and knowingly interfering with the 
operation of an aircraft carrying one or more persons in a manner that 
poses an imminent safety hazard to the aircraft's occupants. Section 
39B(a)(2) prohibits any person from operating an unmanned aircraft and 
recklessly interfering with the operation of an aircraft carrying one 
or more persons in a manner that poses an imminent safety hazard to the 
aircraft's occupants. Section 39B(b) prohibits any person from 
knowingly operating an unmanned aircraft near an airport runway without 
authorization. A violation of any of these prohibitions is punishable 
by a fine, not more than one year in prison, or both. A violation of 
subsection (a)(2) that causes serious bodily injury or death is 
punishable by a fine, not more than 10 years of imprisonment, or both. 
A violation of subsection (a)(1) or subsection (b) that causes serious 
bodily injury or death is punishable by a fine, imprisonment for any 
term of years or for life, or both.
    The second new criminal offense, codified at 18 U.S.C. 40A 
(Operation of unauthorized unmanned aircraft over wildfires), generally 
prohibits any individual from operating an unmanned aircraft and 
knowingly or recklessly interfering with a wildfire suppression or with 
law enforcement or emergency response efforts related to a wildfire 
suppression. A violation of this offense is punishable by a fine, 
imprisonment for not more than two years, or both.
    The act also adds a new subsection (a)(5) to 18 U.S.C. 1752 
(Restricted building or grounds). The new subsection prohibits anyone 
from knowingly and willfully operating an unmanned aircraft system with 
the intent to knowingly and willfully direct or otherwise cause the 
system to enter or operate within or above a restricted building or 
grounds. A violation of section 1752 is punishable by a fine, 
imprisonment for not more than one year, or both. If the violator used 
or carried a deadly or dangerous weapon or firearm or if the offense 
results in significant bodily injury, the maximum term of imprisonment 
increases to ten years.
    Part C of the proposed amendment would amend Appendix A (Statutory 
Index) to reference 18 U.S.C. 39B to Sec.  2A5.2 (Interference with 
Flight Crew Member or Flight Attendant; Interference with Dispatch, 
Navigation, Operation, or Maintenance of Mass Transportation Vehicle) 
and Sec.  2X5.2 (Class A Misdemeanors (Not Covered by Another Specific 
Offense Guideline)). Accordingly, courts would use Sec.  2A5.2 for 
felony violations of section 39B and Sec.  2X5.2 for misdemeanor 
violations. Part C would also make conforming changes to Sec.  2A5.2 
and its commentary and to the Commentary to Sec.  2X5.2. Part C of the 
proposed amendment would also amend the title of Sec.  2A5.2 to add 
``Unsafe Operation of Unmanned Aircraft.''
    In addition, Part C of the proposed amendment would amend Appendix 
A to reference 18 U.S.C. 40A to Sec.  2A2.4 (Obstructing or Impeding 
Officers). It would also make conforming changes to the Commentary to 
Sec.  2A2.4.
    Section 1752 is currently referenced in Appendix A to Sec.  2A2.4 
and Sec.  2B2.3 (Trespass). Accordingly, courts would use those 
guidelines for violations of 18 U.S.C. 1752(a)(5). Part C of the 
proposed amendment would make no changes to the guidelines to account 
for that provision.
    An issue for comment is also provided.
Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 18 U.S.C. 43 the following new line references:

``18 U.S.C. 39B 2A5.2, 2X5.2
18 U.S.C. 40A 2A2.4''.

    Section 2A5.2 is amended in the heading by striking ``Vehicle'' and 
inserting ``Vehicle; Unsafe Operation of Unmanned Aircraft''.
    The Commentary to Sec.  2A5.2 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. 1992(a)(1)'' and inserting ``18 U.S.C. 
39B, 1992(a)(1)''.
    The Commentary to Sec.  2X5.2 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. 1365(f), 1801; 34 U.S.C. 12593; 49 
U.S.C. 31310.'' and inserting ``18 U.S.C. 39B, 1365(f), 1801; 34 U.S.C. 
12593; 49 U.S.C. 31310. For additional statutory provision(s), see 
Appendix A (Statutory Index).''.
    The Commentary to Sec.  2A2.4 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. 111'' and inserting ``18 U.S.C. 40A, 
111''.
Issue for Comment
    1. In response to the FAA Reauthorization Act of 2018, Public Law 
115-254 (2018), Part C of the proposed amendment would reference 18 
U.S.C. 39B to Sec.  2A5.2 (Interference with Flight Crew Member or 
Flight Attendant; Interference with Dispatch, Navigation, Operation, or 
Maintenance of Mass Transportation Vehicle) and Sec.  2X5.2 (Class A 
Misdemeanors (Not Covered by Another Specific Offense Guideline)). Part 
C of the proposed amendment would also reference 18 U.S.C. 40A to Sec.  
2A2.4 (Obstructing or Impeding Officers). The Commission seeks comment 
on whether these proposed references are appropriate and whether any 
additional changes to the guidelines are required to account for the 
new criminal offenses created by the FAA Reauthorization Act.

(D) SUPPORT for Patients and Communities Act

    Synopsis of Proposed Amendment: Part D of the proposed amendment 
responds to the Substance Use-Disorder Prevention that Promotes Opioid 
Recovery and Treatment for Patients and Communities Act (``the SUPPORT 
for Patients and Communities Act''), Public Law 115-271 (2018).
    This Act includes the Eliminating Kickbacks in Recovery Act of 
2018, which added a new offense at 18 U.S.C. 220 (Illegal remunerations 
for referrals to recovery homes, clinical treatment facilities, and 
laboratories). Section 220(a) prohibits, with respect to services 
covered by a ``health care benefit program,'' knowing or willfully: (1) 
soliciting or receiving any remuneration (including kickbacks, bribes, 
or rebates), in cash or in kind, for referring a patient or patronage 
to a recovery home, clinical treatment facility, or laboratory; and (2) 
paying or offering any

[[Page 7205]]

remuneration (including kickbacks, bribes, or rebates), in cash or in 
kind, for inducing a referral of a patient to or in exchange for a 
patient using the services of a recovery home, clinical treatment 
facility, or laboratory. The new offense has a statutory maximum term 
of imprisonment of ten years.
    A ``health care benefit program,'' for purposes of section 220, 
includes public and private plans and contracts affecting commerce. See 
18 U.S.C. 220(e)(3) (referring to the definition of such term at 18 
U.S.C. 24(b)). Section 220 also sets forth exemptions to the offense 
relating to certain discounts, payments, and waivers. See 18 U.S.C. 
220(b).
    Part D of the proposed amendment would amend Appendix A (Statutory 
Index) to reference 18 U.S.C. 220 to Sec. Sec.  2B1.1 (Theft, Property 
Destruction, and Fraud) and 2B4.1 (Bribery in Procurement of Bank Loan 
and Other Commercial Bribery). The conduct prohibited in 18 U.S.C. 220 
is similar to the conduct prohibited in 42 U.S.C. 1320a-7b(b) (Criminal 
penalties for acts involving Federal health care programs). Currently, 
section 1320a-7b offenses are referenced in Appendix A to both 
Sec. Sec.  2B1.1 and 2B4.1.
    Part D of the proposed amendment would also amend the commentaries 
to Sec. Sec.  2B1.1 and 2B4.1 to reflect that 18 U.S.C. 220 is 
referenced to these guidelines.
    An issue for comment is also provided.
Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 18 U.S.C. 224 the following new line reference:

``18 U.S.C. 220 2B1.1, 2B4.1''.

    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. 38'' and inserting ``18 U.S.C. 38, 
220''.
    The Commentary to Sec.  2B4.1 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. 215'' and inserting ``18 U.S.C. 215, 
220''.
Issue for Comment
    1. In response to the SUPPORT for Patients and Communities Act, 
Part D of the proposed amendment would reference 18 U.S.C. 220 to 
Sec. Sec.  2B1.1 (Theft, Property Destruction, and Fraud) and 2B4.1 
(Bribery in Procurement of Bank Loan and Other Commercial Bribery). The 
Commission seeks comment on whether these proposed references are 
appropriate and whether any additional changes to the guidelines are 
required to account for section 220's offense conduct. Specifically, 
should the Commission amend Sec.  2B1.1 or Sec.  2B4.1 to provide a 
higher or lower base offense level if 18 U.S.C. 220 is the offense of 
conviction? If so, what should that base offense level be and why? 
Should the Commission add a specific offense characteristic to any of 
these guidelines in response to section 220? If so, what should that 
specific offense characteristic provide and why?

(E) Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 
2018

    Synopsis of Proposed Amendment: Part E of the proposed amendment 
responds to the Amy, Vicky, and Andy Child Pornography Victim 
Assistance Act of 2018, Public Law 115-299 (2018).
    Among other things, the Act amended 18 U.S.C. 2259 (Mandatory 
restitution), with respect to victims of child pornography, by adding a 
new subsection (d). This new subsection permits any victim of child 
pornography trafficking to receive ``defined monetary assistance'' from 
the Child Pornography Victims Reserve when a defendant is convicted of 
trafficking in child pornography. It also sets forth rules for 
determining the amount of ``defined monetary assistance'' a victim may 
receive and certain limitations relating to the effect of restitution 
and on eligibility. In addition, new subsection (d)(4)(A) states that 
that any attorney representing a victim seeking ``defined monetary 
assistance'' may not charge, receive, or collect (nor may the court 
approve) the payment of fees and costs that in the aggregate exceeds 15 
percent of any payment made under new subsection (d) in general. It 
also provides that an attorney who violates subsection (d)(4)(A) may be 
subject to a statutory maximum term of imprisonment of not more than 
one year. See 18 U.S.C. 2259(d)(4)(B).
    Part E of the proposed amendment would amend Appendix A (Statutory 
Index) to reference 18 U.S.C. 2259(d)(4) to Sec.  2X5.2 (Class A 
Misdemeanors (Not Covered by Another Specific Offense Guideline)). It 
would also amend the Commentary to Sec.  2X5.2 to reflect that 18 
U.S.C. 2259(d)(4) is referenced to the guideline.
    An issue for comment is also provided.
Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 18 U.S.C. 2260(a) the following new line reference:

``18 U.S.C. 2259(d)(4) 2X5.2''.

    The Commentary to Sec.  2X5.2 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. 1365(f), 1801; 34 U.S.C. 12593; 49 
U.S.C. 31310.'' and inserting ``18 U.S.C. 1365(f), 1801, 2259(d)(4); 34 
U.S.C. 12593; 49 U.S.C. 31310. For additional statutory provision(s), 
see Appendix A (Statutory Index).''.
Issue for Comment
    1. In response to the Amy, Vicky, and Andy Child Pornography Victim 
Assistance Act of 2018, Part E of the proposed amendment would amend 
Appendix A (Statutory Index) to reference 18 U.S.C. 2259(d)(4) to Sec.  
2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense 
Guideline)). The Commission seeks comment on whether this proposed 
reference is appropriate and whether any additional changes to the 
guidelines are required to account for the new offense conduct at 18 
U.S.C. 2259(d)(4).

(F) Foundations for Evidence-Based Policymaking Act of 2018

    Synopsis of Proposed Amendment: Part F of the proposed amendment 
responds to the Foundations for Evidence-Based Policymaking Act of 
2018, Public Law 115-435 (2019).
    This Act includes the Confidential Information Protection and 
Statistical Efficiency Act of 2018, which added a new offense at 44 
U.S.C. 3572 (Confidential information protection). Section 3572 
prohibits the unauthorized disclosure of information collected by an 
agency under a pledge of confidentiality and for exclusively 
statistical purposes, or the use of such information for other than 
statistical purposes. Any willful unauthorized disclosure of such 
information by an officer, employee, or agent of an agency acquiring 
information for exclusively statistical purposes is punishable by a 
statutory maximum term of imprisonment of five years. See 44 U.S.C. 
3572(f).
    Part F of the proposed amendment would amend Appendix A (Statutory 
Index) to reference 44 U.S.C. 3572 to Sec.  2H3.1 (Interception of 
Communications; Eavesdropping; Disclosure of Certain Private or 
Protected Information). Similar confidential information disclosure 
offenses, such as 18 U.S.C. 1039 and 26 U.S.C. 7213(a), are referenced 
to this guideline. Part F of the proposed amendment would also amend 
the Commentary to Sec.  2H3.1 to reflect that 44 U.S.C. 3572 is 
referenced to the guideline.
    An issue for comment is also provided.

[[Page 7206]]

Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 45 U.S.C. 359(a) the following new line reference:

``44 U.S.C. 3572 2H3.1''.

    The Commentary to Sec.  2H3.1 captioned ``Statutory Provisions'' is 
amended by striking ``47 U.S.C. 605'' and inserting ``44 U.S.C. 3572; 
47 U.S.C. 605''.
Issue for Comment
    1. In response to the Foundations for Evidence-Based Policymaking 
Act of 2018, Part F of the proposed amendment would reference 44 U.S.C. 
3572 to Sec.  2H3.1 (Interception of Communications; Eavesdropping; 
Disclosure of Certain Private or Protected Information). The Commission 
seeks comment on whether this proposed reference is appropriate and 
whether any additional changes to the guidelines are required to 
account for section 3572's offense conduct. Specifically, should the 
Commission amend Sec.  2H3.1 to provide a higher or lower base offense 
level if 44 U.S.C. 3572 is the offense of conviction? If so, what 
should that base offense level be and why? Should the Commission add a 
specific offense characteristic to Sec.  2H3.1 in response to section 
3572? If so, what should that specific offense characteristic provide 
and why?

(G) National Defense Authorization Act for Fiscal Year 2020

    Synopsis of Proposed Amendment: Part G of the proposed amendment 
responds to the National Defense Authorization Act for Fiscal Year 
2020, Public Law 116-92 (2019).
    The Act added a new statute at 10 U.S.C. 2733a regarding medical 
malpractice claims by members of the uniformed services. The new 
statute authorizes the Secretary of Defense to allow, settle, and pay a 
claim against the United States for personal injury or death that 
occurred during the service of a member of the uniformed services and 
that was caused by the medical malpractice of a health care provider of 
the Department of Defense, if certain requirements are met. Under 
section 2733a(c)(2), the Department of Defense is not liable for the 
payment of attorney fees for a claim under the new statute. However, 
section 2733(g)(1) prohibits any attorney from charging, demanding, 
receiving, or collecting fees in excess of 20 percent of any claim paid 
pursuant to the new statute. Any attorney who charges, demands, 
receives, or collects a fee in excess of 20 percent faces a statutory 
maximum term of imprisonment of not more than one year. See 10 U.S.C. 
2733a(g)(2).
    Part G of the proposed amendment would amend Appendix A (Statutory 
Index) to reference 10 U.S.C. 2733a(g)(2) to Sec.  2X5.2 (Class A 
Misdemeanors (Not Covered by Another Specific Offense Guideline)). It 
would also amend the Commentary to Sec.  2X5.2 to reflect that 10 
U.S.C. 2733a(g)(2) is referenced to the guideline.
    An issue for comment is also provided.
Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 12 U.S.C. 631 the following new line reference:

``10 U.S.C. 2733a(g)(2) 2X5.2''.

    The Commentary to Sec.  2X5.2 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. 1365(f), 1801; 34 U.S.C. 12593; 49 
U.S.C. 31310.'' and inserting ``10 U.S.C. 2733a(g)(2); 18 U.S.C. 
1365(f), 1801; 34 U.S.C. 12593; 49 U.S.C. 31310. For additional 
statutory provision(s), see Appendix A (Statutory Index).''.
Issue for Comment
    1. In response to the National Defense Authorization Act for Fiscal 
Year 2020, Part G of the proposed amendment would amend Appendix A 
(Statutory Index) to reference 10 U.S.C. 2733a(g)(2) to Sec.  2X5.2 
(Class A Misdemeanors (Not Covered by Another Specific Offense 
Guideline)). The Commission seeks comment on whether this proposed 
reference is appropriate and whether any additional changes to the 
guidelines are required to account for the new offense conduct at 10 
U.S.C. 2733a(g)(2).

(H) Representative Payee Fraud Prevention Act of 2019

    Synopsis of Proposed Amendment: Part H of the proposed amendment 
responds to the Representative Payee Fraud Prevention Act of 2019, 
Public Law 116-126 (2020).
    The Act amended certain sections in chapters 83 (Retirement) and 84 
(Federal Employees' Retirement System) of title 5 (Government 
Organization and Employees), United States, Code, relating to the Civil 
Services Retirement System (``CSRS'') and the Federal Employees 
Retirement System (``FERS''). Under both retirement programs, annuities 
that are due to a minor or an individual mentally incompetent or under 
other legal disability may be made to the guardian or other fiduciary 
of such individual. See 5 U.S.C. 8345(e), 8466(c).
    The Act added two identical new offenses at 5 U.S.C. 8345a and 
8466a, regarding embezzlement or conversion of payments due to a minor 
or an individual mentally incompetent or under other legal disability 
under CSRS and FERS. Both offenses apply to a ``representative payee.'' 
The Act added similar provisions to both chapters 83 and 84 of title 5 
defining the term as ``a person (including an organization) designated 
under [section 8345(e)(1) or section 8466(c)(1)] to receive payments on 
behalf of a minor or an individual mentally incompetent or under other 
legal disability.'' 5 U.S.C. 8331(33), 8401(39).
    The new offense at 5 U.S.C. 8345a prohibits a representative payee 
from embezzling or in any manner converting all or any part of the 
amounts received from payments under the CSRS retirement program for a 
use other than for the use and benefit of the minor or individual on 
whose behalf the payments were received. The new offense at 5 U.S.C. 
8466a prohibits a representative payee from engaging in the same 
conduct prohibited under section 8345a for purposes of payments 
received under the FERS retirement program. Offenses under both 
sections 8345a and 8466a are punishable by a statutory maximum term of 
imprisonment of five years.
    Part H of the proposed amendment would amend Appendix A (Statutory 
Index) to reference 5 U.S.C. 8345a and 8466a to Sec.  2B1.1 (Theft, 
Property Destruction, and Fraud). Similar financial fraud and 
embezzlement offenses relating to social security, veterans' benefits, 
and welfare benefit and pension plans (such as 18 U.S.C. 664, 38 U.S.C. 
6102, and 42 U.S.C. 408(a)(5), 1011(a)(4) and 1383a(a)(4)) are 
referenced to Sec.  2B1.1. Part H of the proposed amendment would also 
amend the Commentary to Sec.  2B1.1 to reflect that 5 U.S.C. 8345a and 
8466a are referenced to the guideline.
    An issue for comment is also provided.
Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 7 U.S.C. 6 the following new line references:

``5 U.S.C. 8345a 2B1.1
5 U.S.C. 8466a 2B1.1''.

    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by striking ``7 U.S.C. 6, 6b, 6c, 6h, 6o, 13, 23'' and 
inserting ``5 U.S.C. 8345a, 8466a; 7 U.S.C. 6, 6b, 6c, 6h, 6o, 13, 
23''.
Issue for Comment
    1. In response to the Representative Payee Fraud Prevention Act of 
2019,

[[Page 7207]]

Part H of the proposed amendment would reference 5 U.S.C. 8345a and 
8466a to Sec.  2B1.1 (Theft, Property Destruction, and Fraud). The 
Commission seeks comment on whether these proposed references are 
appropriate and whether any additional changes to the guidelines are 
required to account for the offense conduct covered by sections 8345a 
and 8466a. Specifically, should the Commission amend Sec.  2B1.1 to 
provide a higher or lower base offense level if 5 U.S.C. 8345a or Sec.  
8466a is the offense of conviction? If so, what should that base 
offense level be for each of these sections and why? Should the 
Commission add a specific offense characteristic to Sec.  2B1.1 in 
response to 5 U.S.C. 8345a or Sec.  8466a? If so, what should that 
specific offense characteristic provide and why?

(I) Stop Student Debt Relief Scams Act of 2019

    Synopsis of Proposed Amendment: Part I of the proposed amendment 
responds to the Stop Student Debt Relief Scams Act of 2019, Public Law 
116-251 (2020).
    The Act created a new offense at 20 U.S.C. 1097(e). Current 
subsections (a) through (d) of section 1097 provide criminal penalties 
for crimes relating to student assistance programs, including 
embezzlement, theft, fraud, forgery, and making unlawful payments to a 
lender to acquire a loan. New subsection (e) of section 1097 prohibits 
knowingly using an access device (as defined in 18 U.S.C. 1029(e)(1)) 
issued to another person or obtained by fraud or false statement to 
access information technology systems of the Department of Education 
for purposes of obtaining commercial advantage or private financial 
gain, or in furtherance of any criminal or tortious act. The statutory 
maximum term of imprisonment for the offense is five years.
    Part I of the proposed amendment would amend Appendix A (Statutory 
Index) to reference 20 U.S.C. 1097(e) to Sec.  2B1.1 (Theft, Property 
Destruction, and Fraud). Section 1097(a), (b), and (d) offenses (theft, 
embezzlement, and fraud) are currently referenced to Sec.  2B1.1, while 
section 1097(c) offenses (unlawful payments to acquire a loan) are 
referenced to Sec.  2B4.1 (Bribery in Procurement of Bank Loan and 
Other Commercial Bribery). Part I of the proposed amendment would also 
amend the Commentary to Sec.  2B1.1 to reflect that 20 U.S.C. 1097(a), 
(b), (d), and (e) are referenced to the guideline.
    An issue for comment is also provided.
Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 21 U.S.C. 101 the following new line reference:

``20 U.S.C. 1097(e) 2B1.1''.

    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by striking ``19 U.S.C. 2401f'' and inserting ``19 U.S.C. 
2401f; 20 U.S.C. 1097(a), (b), (d), (e)''.
Issue for Comment
    1. In response to the Stop Student Debt Relief Scams Act of 2019, 
Part I of the proposed amendment would reference 20 U.S.C. 1097(e) to 
Sec.  2B1.1 (Theft, Property Destruction, and Fraud). The Commission 
seeks comment on whether the proposed reference is appropriate and 
whether any additional changes to the guidelines are required to 
account for section 1097(e) offenses. Specifically, should the 
Commission amend Sec.  2B1.1 to provide a higher or lower base offense 
level if 20 U.S.C. 1097(e) is the offense of conviction? If so, what 
should that base offense level be and why? Should the Commission add a 
specific offense characteristic to Sec.  2B1.1 in response to 20 U.S.C. 
1097(e)? If so, what should that specific offense characteristic 
provide and why?

(J) Protecting Lawful Streaming Act of 2020

    Synopsis of Proposed Amendment: Part J responds to title II of 
Division Q of the Consolidated Appropriations Act, 2021, referred to as 
the Protecting Lawful Streaming Act of 2020, Public Law 116-260 (2020).
    The Act created a new commercial streaming piracy offense at 18 
U.S.C. 2319C (Illicit digital transmission services). Section 2319C(b) 
makes it unlawful to willfully, and for purposes of commercial 
advantage or private financial gain, offer or provide to the public a 
digital transmission service that (1) is primarily designed or provided 
for the purpose of publicly performing works protected under copyright 
law by means of a digital transmission without the authority of the 
copyright owner or the law; (2) has no commercially significant purpose 
or use other than to publicly perform works protected under copyright 
law by means of a digital transmission without the authority of the 
copyright owner or the law; or (3) is intentionally marketed to promote 
its use in publicly performing works protected under copyright law by 
means of a digital transmission without the authority of the copyright 
owner or the law. Section 2319C(a) provides definitions for some of the 
terms used in the statute.
    A violation of section 2319C has a statutory maximum term of 
imprisonment of three years. 18 U.S.C. 2319C(c)(1). However, the 
maximum penalty increases to five years if (1) the offense was 
committed in connection with one or more works being prepared for 
commercial public performance; and (2) the offender knew or should have 
known that the work was being prepared for commercial public 
performance. Id. Sec.  2319C(c)(2). A ten-year maximum penalty applies 
if the offense is a second or subsequent offense under 18 U.S.C. 2319C 
or Sec.  2319(a). Id. Sec.  2319C(c)(3).
    Part J of the proposed amendment would amend Appendix A (Statutory 
Index) to reference 18 U.S.C. 2319C to Sec.  2B5.3 (Criminal 
Infringement of Copyright or Trademark). Similar offenses, such as 17 
U.S.C. 506 (prohibiting infringing a copyright of a work being prepared 
for commercial distribution) and 18 U.S.C. 2319A and 2319B (prohibiting 
the unauthorized recording and trafficking of live musical performances 
for commercial advantage or private financial gain, and the 
unauthorized recording of motion pictures in movie theaters), are 
referenced to Sec.  2B5.3.
    Issues for comment are also provided.
Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 18 U.S.C. 2320 the following new line reference:

``18 U.S.C. 2319C 2B5.3''.
Issues for Comment
    1. In response to the Protecting Lawful Streaming Act of 2020, Part 
J of the proposed amendment would reference 18 U.S.C. 2319C to Sec.  
2B5.3 (Criminal Infringement of Copyright or Trademark). The Commission 
seeks comment on whether the proposed reference is appropriate and 
whether any additional changes to the guidelines are required to 
account for section 2319C offenses. Specifically, should the Commission 
amend Sec.  2B5.3 to provide a higher or lower base offense level if 18 
U.S.C. 2319C is the offense of conviction? If so, what should that base 
offense level be and why? Should the Commission add a specific offense 
characteristic to Sec.  2B5.3 in response to 18 U.S.C. 2319C? If so, 
what should that specific offense characteristic provide and why?
    The new statute at 18 U.S.C. 2319C provides enhanced penalties if 
(1) the offense was committed in connection with one or more works 
being prepared

[[Page 7208]]

for commercial public performance, and the offender knew or should have 
known that the work was being prepared for commercial public 
performance; or (2) if the offense is a second or subsequent offense 
under 18 U.S.C. 2319C or Sec.  2319(a). Should the Commission amend 
Sec.  2B5.3 to address these enhanced penalties? If so, how should the 
Commission address them and why?
    2. Currently, Sec.  2B5.3 includes a specific offense 
characteristic at subsection (b)(2) providing a 2-level enhancement 
``[i]f the offense involved the display, performance, publication, 
reproduction, or distribution of a work being prepared for commercial 
distribution.'' The new offense at 18 U.S.C. 2319C mainly addresses the 
streaming (i.e., offering or providing ``to the public a digital 
transmission service'') of works ``being prepared for commercial public 
performance.'' The Commission seeks comment on whether current Sec.  
2B5.3(b)(2) adequately accounts for section 2319C's offense conduct. If 
not, what revisions to Sec.  2B5.3(b)(2) would be appropriate to 
account for this conduct? Should the Commission instead revise Sec.  
2B5.3 in general provide one or more specific offense characteristics 
or departure provisions to better account for this conduct? If so, what 
should the Commission provide?

(K) William M. (Mac) Thornberry National Defense Authorization Act for 
Fiscal Year 2021

    Synopsis of Proposed Amendment: Part K of the proposed amendment 
responds to the William M. (Mac) Thornberry National Defense 
Authorization Act for Fiscal Year 2021, Public Law 116-283 (2021). The 
Act created several new offenses at 31 U.S.C. 5335 and 5336.
    The Act included two regulatory offenses in a new section 5335 of 
title 31, United States Code. Section 5335(b) prohibits knowingly 
concealing, falsifying, or misrepresenting (or attempting to do so) 
from or to a financial institution, a material fact concerning the 
ownership or control of assets involved in a monetary transaction if 
(1) the person or entity who owns or controls the assets is a senior 
foreign political figure, or any immediate family member or close 
associate of a senior foreign political figure; and (2) the aggregate 
value of the assets involved in one or more monetary transactions is 
not less than $1,000,000. Section 5335(c) prohibits knowingly 
concealing, falsifying, or misrepresenting (or attempting to do so) 
from or to a financial institution, a material fact concerning the 
source of funds in a monetary transaction that (1) involves an entity 
found to be a primary money laundering concern under 31 U.S.C. 5318A or 
applicable regulations; and (2) violates the prohibitions or conditions 
prescribed under 31 U.S.C. 5318A(b)(5) or applicable regulations. Both 
new offenses cover conspiracies to commit the prohibited conduct and 
have a statutory maximum term of imprisonment of ten years. See 31 
U.S.C. 5335(d).
    The Act also added a new section 5336 to title 31, United States 
Code, concerning reporting requirements of beneficial ownership of 
certain entities. Specifically, section 5336(b) requires certain United 
States and foreign corporations, limited liability companies, and 
similar entities, to file annual reports with the Department of the 
Treasury's Financial Crimes Enforcement Network (``FinCEN''). The 
annual reports must identify an entity's beneficial owners (i.e., those 
exercising substantial control or who own or control no less than 25% 
of the ownership interests), including names, dates of birth, street 
address, and unique identification numbers (such as passport numbers, 
driver's license numbers, or FinCEN identifiers). Section 5336(c) 
provides certain conditions under which FinCEN may disclose the 
beneficial ownership information to certain requesting agencies, 
including federal agencies, state, local and tribal law enforcement 
agencies, federal agencies on behalf of law enforcement, or a 
prosecutor or judge of a foreign country.
    Section 5336 includes three new offenses relating to the provisions 
described above. First, section 5336(h)(1) prohibits (1) willfully 
providing, or attempting to provide, false or fraudulent beneficial 
ownership information, including a false or fraudulent identifying 
photograph or document, to FinCEN; or (2) willfully failing to report 
complete or updated beneficial ownership information to FinCEN. The 
statutory maximum term of imprisonment for this offense is two years. 
Second, section 5336(c)(4) prohibits any employee or officer of a 
requesting agency from violating the protocols established by the 
regulations promulgated by the Secretary of the Treasury under section 
5336, including unauthorized disclosure or use of the beneficial 
ownership information obtained from FinCEN. Third, section 5336(h)(2) 
prohibits the knowing disclosure or knowing use, without authorization, 
of beneficial ownership information obtained through a report submitted 
to FinCEN or a disclosure made by FinCEN. Both sections 5336(c)(4) and 
5336(h)(2) offenses face a statutory maximum term of imprisonment of 
five years, with an enhanced penalty of up to ten years if the offense 
was committed while violating another law or as part of a pattern of 
any illegal activity involving more than $100,000 in a 12-month period.
    Part K of the proposed amendment would amend Appendix A (Statutory 
Index) to reference 31 U.S.C. 5335 and 5336 to Sec.  2S1.3 (Structuring 
Transactions to Evade Reporting Requirements; Failure to Report Cash or 
Monetary Transactions; Failure to File Currency and Monetary Instrument 
Report; Knowingly Filing False Reports; Bulk Cash Smuggling; 
Establishing or Maintaining Prohibited Accounts). Similar offenses, 
such as offenses under 31 U.S.C. 5313 and 5318(g)(2), are referenced to 
Sec.  2S1.3. Part K of the proposed amendment would also amend the 
Commentary to Sec.  2S1.3 to reflect that 31 U.S.C. 5335 and 5336 are 
referenced to the guideline.
    An issue for comment is also provided.
Proposed Amendment
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 31 U.S.C. 5363 the following new line references:

``31 U.S.C. 5335 2S1.3
31 U.S.C. 5336 2S1.3''.

    The Commentary to Sec.  2S1.3 captioned ``Statutory Provisions'' is 
amended by striking ``5332'' and inserting ``5332, 5335, 5336''.
Issue for Comment
    1. In response to the William M. (Mac) Thornberry National Defense 
Authorization Act for Fiscal Year 2021, Part K of the proposed 
amendment would reference 31 U.S.C. 5335 and 5336 to Sec.  2S1.3 
(Structuring Transactions to Evade Reporting Requirements; Failure to 
Report Cash or Monetary Transactions; Failure to File Currency and 
Monetary Instrument Report; Knowingly Filing False Reports; Bulk Cash 
Smuggling; Establishing or Maintaining Prohibited Accounts). The 
Commission seeks comment on whether these proposed references are 
appropriate and whether any additional changes to the guidelines are 
required to account for sections 5335 and 5336 offenses. Specifically, 
should the Commission amend Sec.  2S1.3 to provide a higher or lower 
base offense level if 31 U.S.C. 5335 or Sec.  5336 is the offense of 
conviction? If so, what should that base offense level be for each of 
these

[[Page 7209]]

sections and why? Should the Commission add a specific offense 
characteristic to Sec.  2S1.3 in response to 31 U.S.C. 5335 and 5336? 
If so, what should that specific offense characteristic provide and 
why?
    The new statute provides an enhanced penalty for offenses under 31 
U.S.C. 5336(c)(4) and 5336(h)(2) offenses if the offense was committed 
while violating another law or as part of a pattern of any illegal 
activity involving more than $100,000 in a 12-month period. Should the 
Commission amend Sec.  2S1.3 to address this enhanced penalty? If so, 
how should the Commission address it and why?

6. Career Offender

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's multiyear work on Sec.  4B1.2 (Definitions of Terms 
Used in Section 4B1.1), including possible amendments to (A) provide an 
alternative approach to the ``categorical approach'' in determining 
whether an offense is a ``crime of violence'' or a ``controlled 
substance offense''; and (B) address various application issues, 
including the meaning of ``robbery'' and ``extortion,'' and the 
treatment of inchoate offenses and offenses involving an offer to sell 
a controlled substance. See U.S. Sent'g Comm'n, ``Notice of Final 
Priorities,'' 87 FR 67756 (Nov. 9, 2022). 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 
mutually exclusive.
    Part A of the proposed amendment would amend Sec.  4B1.2 to address 
recurrent criticism of the categorical approach and modified 
categorical approach, which courts have applied in the context of Sec.  
4B1.1 (Career Offender). It eliminates the categorical approach from 
the guidelines by defining ``crime of violence'' and ``controlled 
substance offense'' based upon a list of guidelines, rather than 
offenses or elements of an offense. Part A would also make conforming 
changes to the guidelines that use the terms ``crime of violence'' and 
``controlled substance offense'' and define these terms by making 
specific reference to Sec.  4B1.2. Issues for comment are also 
provided.
    Part B of the proposed amendment would address the concern that 
certain robbery offenses, such as Hobbs Act robbery, no longer 
constitute a ``crime of violence'' under Sec.  4B1.2, as amended in 
2016. It would amend Sec.  4B1.2 to add a definition of ``robbery'' 
that mirrors the Hobbs Act robbery definition at 18 U.S.C. 1951(b)(1). 
Part B of the proposed amendment also brackets a provision defining the 
phrase ``actual or threatened force,'' for purposes of the new 
``robbery'' definition, as ``force sufficient to overcome a victim's 
resistance,'' informed by the Supreme Court's holding in Stokeling v. 
United States, 139 S. Ct. 544, 550 (2019). Finally, Part B of the 
proposed amendment would make conforming changes to the definition of 
``crime of violence'' in the Commentary to Sec.  2L1.2 (Unlawfully 
Entering or Remaining in the United States), which includes robbery as 
an enumerated offense. Issues for comment are also provided.
    Part C of the proposed amendment would amend Sec.  4B1.2 to address 
two circuit conflicts regarding the commentary provision stating that 
the terms ``crime of violence'' and ``controlled substance offense'' 
include the offenses of aiding and abetting, conspiring to commit, and 
attempting to commit a ``crime of violence'' and a ``controlled 
substance offense.'' Two options are presented. Issues for comment are 
also provided.
    Part D of the proposed amendment would amend the definition of 
``controlled substance offense'' in Sec.  4B1.2(b) to include offenses 
involving an offer to sell a controlled substance and offenses 
described in 46 U.S.C. 70503(a) and Sec.  70506(b). An issue for 
comment is also provided.

(A) Listed Guidelines Approach

    Synopsis of Proposed Amendment: Part A of the proposed amendment 
addresses recurrent criticism of the categorical approach and modified 
categorical approach, which courts have applied in the context of Sec.  
4B1.1 (Career Offender). It eliminates the categorical approach from 
the guidelines by defining ``crime of violence'' and ``controlled 
substance offense'' based upon a list of guidelines, rather than 
offenses or elements of an offense.
The Categorical Approach as Developed by Supreme Court Jurisprudence
    A number of statutes and guidelines provide enhanced penalties for 
defendants convicted of offenses that meet the definition of a 
particular category of crimes. Courts typically determine whether a 
conviction fits within the definition of a particular category of 
crimes through the application of the ``categorical approach'' and 
``modified categorical approach,'' as set forth by Supreme Court 
jurisprudence. The categorical approach requires courts to look only to 
the statute of conviction, rather than the particular facts underlying 
the conviction, to determine whether the offense meets the definition 
of a particular category of crimes. In applying the modified 
categorical approach, courts are allowed to look to certain additional 
sources of information, now commonly referred to as the ``Shepard 
documents,'' to determine the elements of the offense of conviction. 
See Taylor v. United States, 495 U.S. 575 (1990) (holding that, under 
the ``categorical approach,'' courts must compare the elements of the 
offense as described in the statute of conviction to the elements of 
the applicable definition of a particular category of crimes to 
determine if such offense criminalizes the same or a narrower range of 
conduct than the definition captures in order to serve as a predicate 
offense); Shepard v. United States, 544 U.S. 13 (2005) (holding that 
courts may use a ``modified categorical approach'' in cases where the 
statute of conviction is ``overbroad,'' that is, the statute defines 
both conduct that fits within the applicable definition and conduct 
that does not). However, the Supreme Court later held that a court may 
only apply the modified categorical approach if the court first 
conducts a threshold inquiry to determine whether a statute of 
conviction is ``divisible.'' See Descamps v. United States, 570 U.S. 
254 (2013); Mathis v. United States, 579 U.S. 500 (2016). Thus, under 
Descamps and Mathis, if a statute of conviction is ``indivisible'' and 
criminalizes a broader range of conduct than the applicable definition, 
the entire statute is categorically disqualified from serving as a 
predicate offense, even if a defendant was convicted under a part of 
the statute that falls within the definition.
Application of the Categorical Approach in the Guidelines
    Even though Supreme Court jurisprudence on this subject pertains 
only to statutory provisions (e.g., 18 U.S.C. 924(e)), courts have 
applied the categorical approach and the modified categorical approach 
to guideline provisions. For example, courts have used these approaches 
to determine if a conviction is a ``crime of violence'' or a 
``controlled substance offense'' for purposes of applying the career 
offender guideline at Sec.  4B1.1. Additionally, several other 
guidelines, such as Sec.  2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition), also rely upon the career offender 
guideline's definitions of ``crime of violence'' and ``controlled 
substance offense.'' Therefore, courts have also used the categorical 
approach for purposes of these guidelines.

[[Page 7210]]

    Commission data indicates that of the 53,779 offenders sentenced in 
fiscal year 2021, 1,246 offenders (2.3%) were sentenced under the 
career offender guideline. An additional 3,239 offenders (6.0% of the 
offenders sentenced in fiscal year 2021) sentenced under Sec.  2K2.1 
were assigned to a base offense level that requires a prior conviction 
for a ``crime of violence'' or ``controlled substance offense.''
    While representing a relatively small portion of the federal 
caseload each year, the categorical approach continues to result in 
substantial litigation. Since 1990, the Supreme Court has issued dozens 
of opinions that have shaped the categorical approach and modified 
categorical approach. The Commission identified over 3,300 written 
opinions over the past five years in which federal courts have invoked, 
discussed, or applied the categorical approach. More than half of those 
opinions focused on categorical approach issues raised in applying 
guideline provisions while the remainder dealt with statutory 
provisions (e.g., 18 U.S.C. 924(c)).
General Criticism of the Categorical Approach as Developed by Supreme 
Court Jurisprudence
    The Commission has received significant comment over the years 
regarding the complexity and limitations of the categorical approach, 
as developed by Supreme Court jurisprudence. Specifically, courts and 
stakeholders have criticized the requirement of a threshold inquiry of 
whether a statute of conviction is divisible or indivisible as 
resulting in an overly complex and time-consuming analysis that often 
leads to counterintuitive and arbitrary results. For example, 
dissenting justices in Descamps and Mathis expressed concern that the 
``divisibility'' inquiry is confusing and ``will cause serious 
practical problems'' (e.g., Descamps, 570 U.S. at 284 (Alito, J., 
dissenting); Mathis, 579 U.S. at 523-33 (Breyer, J., joined by 
Ginsberg, J., dissenting)), and noted that ``lower court judges[,] who 
must regularly grapple with the modified categorical approach, 
struggle[ ] to understand Descamps'' (Mathis, 579 U.S. at 538 (Alito, 
J., dissenting)).
    In the aftermath of Descamps and Mathis, commenters have stressed 
that the categorical approach has become increasingly difficult to 
apply, while simultaneously producing results less reflective of the 
types of conduct Sec.  4B1.1 was intended to capture. See, e.g., Public 
Comment on Proposed Amendments (Feb. 2019), at https://www.ussc.gov/policymaking/public-comment/public-comment-february-19-2019. Courts 
have further criticized the categorical approach as a ``legal 
fiction,'' in which an offense that a defendant commits violently is 
deemed to be a non-violent offense because other defendants at other 
times could have been convicted of violating the same statute without 
violence, often leading to ``odd'' and ``arbitrary'' results. See, 
e.g., United States v. Davis, 875 F.3d 592, 595 (11th Cir. 2017); 
United States v. McCollum, 885 F.3d 300, 309-14 (4th Cir. 2018) 
(Traxler, J., concurring); id. (Wilkinson, J., dissenting).
Proposed Approach for Sec.  4B1.2
    Part A of the proposed amendment eliminates the categorical 
approach from the guidelines by defining ``crime of violence'' and 
``controlled substance offense'' based upon a list of guidelines, 
rather than offenses or elements of an offense. The list of Chapter Two 
guidelines included in the definition of ``crime of violence'' is 
informed by the guidelines that the Commission has identified as 
covering ``violent instant offenses'' for purposes of the study of 
recidivism of federal offenders. See Courtney R. Semisch, Cassandra 
Syckes & Landyn Rookard, U.S. Sent'g Comm'n, Recidivism of Federal 
Violent Offenders Released in 2010 (2022), https://www.ussc.gov/research/research-reports/recidivism-federal-violent-offenders-released-2010. The Chapter Two guidelines listed in the definition of 
``controlled substance offense'' are the guidelines that cover the 
offenses expressly referenced in the career offender directive at 28 
U.S.C. 994(h).
    The focus of inquiry set forth in the proposed approach is whether 
the defendant was convicted of a federal offense for which the 
``applicable Chapter Two guideline'' is listed in Sec.  4B1.2 or a 
state offense for which the ``most appropriate'' offense guideline 
would have been one of the Chapter Two guidelines listed in Sec.  4B1.2 
had the defendant been sentenced under the guideline in federal court. 
The court would make this determination based on: (1) the elements, and 
any means of committing such an element, that formed the basis of the 
defendant's conviction, and (2) the offense conduct cited in the count 
of conviction, or a fact admitted or confirmed by the defendant, that 
establishes any such elements or means.
    The proposed approach is intended to remove the complexity inherent 
in determining whether a statute of conviction is ``divisible'' or 
``indivisible'' based on a threshold ``elements-means'' inquiry. Thus, 
the court would not be required to determine whether an indivisible 
statute criminalizes conduct that does not meet the applicable 
definition; rather, the court would be required to determine only 
whether the Chapter Two guideline that covers the type of conduct most 
similar to the offense charged in the count of which the defendant was 
convicted is listed in Sec.  4B1.2. The proposed approach would also 
expand the use of additional sources of information by permitting 
courts to use the Shepard documents when necessary to make the career 
offender determination.
Conforming Changes to Other Guidelines
    Finally, Part A of the proposed amendment would make conforming 
changes to the guidelines that use the terms ``crime of violence'' and 
``controlled substance offense'' and define these terms by making 
specific reference to Sec.  4B1.2. Accordingly, the proposed amendment 
would amend the Commentary to Sec.  2K1.3 (Unlawful Receipt, 
Possession, or Transportation of Explosive Materials; Prohibited 
Transactions Involving Explosive Materials), Sec.  2K2.1 (Unlawful 
Receipt, Possession, or Transportation of Firearms or Ammunition; 
Prohibited Transactions Involving Firearms or Ammunition), Sec.  2S1.1 
(Laundering of Monetary Instruments; Engaging in Monetary Transactions 
in Property Derived from Unlawful Activity), Sec.  4A1.2 (Definitions 
and Instructions for Computing Criminal History), Sec.  4B1.4 (Armed 
Career Criminal), and Sec.  7B1.1 (Classification of Violations (Policy 
Statement)).
    Issues for comment are also provided.
Proposed Amendment
    Section 4B1.2(a) is amended by striking the following:
    ``The term `crime of violence' means any offense under federal or 
state law, punishable by imprisonment for a term exceeding one year, 
that--
    (1) has as an element the use, attempted use, or threatened use of 
physical force against the person of another, or
    (2) is murder, voluntary manslaughter, kidnapping, aggravated 
assault, a forcible sex offense, robbery, arson, extortion, or the use 
or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or 
explosive material as defined in 18 U.S.C. 841(c).'',
    and inserting the following:
    ``Crime of Violence.--
    (1) In General.--The term `crime of violence' means any of the 
following offenses:

[[Page 7211]]

    (A) Any offense under federal law, punishable by imprisonment for a 
term exceeding one year--
    (i) for which the applicable Chapter Two guideline (as determined 
under the provisions of Sec.  1B1.2 (Applicable Guidelines)); or
    (ii) to which Sec.  2X1.1 (Attempt, Solicitation, or Conspiracy) or 
Sec.  2X2.1 (Aiding and Abetting) applies and the appropriate guideline 
for the offense the defendant aided or abetted, or conspired, 
solicited, or attempted to commit;
    is one of the guidelines listed in paragraph (2).
    (B) Any offense under state law (or the offense of aiding or 
abetting, or conspiring, soliciting, or attempting to commit any such 
offense), punishable by imprisonment for a term exceeding one year, for 
which the most appropriate guideline would have been one of the Chapter 
Two guidelines listed in paragraph (2) had the defendant been sentenced 
under the guidelines in federal court (as determined under subsection 
(c)).
    (2) Guidelines Listed.--For purposes of the `crime of violence' 
definition, use the following Chapter Two guidelines:
     Homicide.--Sec. Sec.  2A1.1 (First Degree Murder), 2A1.2 
(Second Degree Murder), 2A1.3 (Voluntary Manslaughter), 2A1.5 
(Conspiracy or Solicitation to Commit Murder);
     Assault.--Sec. Sec.  2A2.1 (Attempted Murder), 2A2.2 
(Aggravated Assault), 2A2.4 (Obstructing or Impeding Officers);
     Criminal Sexual Abuse.--Sec. Sec.  2A3.1 (Sexual Abuse), 
2A3.3 (Sexual Abuse of a Ward), 2A3.4 (Abusive Sexual Contact);
     Kidnapping, Abduction, and Unlawful Restraint.--Sec.  
2A4.1 (Kidnapping, Abduction, Unlawful Restraint);
     Air Piracy and Offenses Against Mass Transportation 
Systems.--Sec. Sec.  2A5.1 (Aircraft Piracy), 2A5.2 (Interference with 
Flight or Cabin Crew, or Mass Transportation);
     Threatening or Harassing Communications, Hoaxes, Stalking, 
and Domestic Violence.--Sec. Sec.  2A6.1 (Threatening or Harassing 
Communications, Hoaxes, or False Liens) (only if the offense involve a 
threat to injure a person or property), 2A6.2 (Stalking or Domestic 
Violence);
     Robbery and Extortion.--Sec. Sec.  2B3.1 (Robbery), 2B3.2 
(Extortion by Force or Threat of Injury or Serious Damage);
     Racketeering.--Sec. Sec.  2E1.1 (Unlawful Conduct Relating 
to Racketeering), 2E1.2 (Travel or Transportation Aiding Racketeering), 
2E1.3 (Violent Crimes Aiding Racketeering), 2E1.4 (Using Certain 
Facilities to Commit Murder-For-Hire);
     Promoting a Commercial Sex Act or Prohibited Sexual 
Conduct with Minors.--Sec.  2G1.3 (Promoting Commercial Sex Acts or 
Prohibited Sexual Conduct with Minors; Using Certain Facilities to 
Transport Information about Minors);
     Sexual Exploitation of Minors.--Sec. Sec.  2G2.1 (Sexual 
Exploitation of Minors; Production of Child Pornography), 2G2.3 
(Selling or Buying Children for Pornography Production), 2G2.6 (Child 
Exploitation Enterprises);
     Peonage and Slavery.--Sec.  2H4.1 (Peonage, Slavery, Child 
Soldiers);
     Explosives and Arson.--Sec. Sec.  2K1.3 (Unlawful Receipt, 
Possession, or Transportation of Explosive Materials), 2K1.4 (Arson);
     Firearms.--Sec. Sec.  2K2.1 (Unlawful Receipt, Possession, 
or Transportation of Firearms or Ammunition) (only if the offense 
involved possession of a firearm that is described in 26 U.S.C. 
5845(a)), 2K2.4 (Using Certain Firearms, Ammunition, or Explosives 
During or in Relation to Certain Crimes);
     Material Support to Terrorists.--Sec.  2M5.3 (Providing 
Material Support to Certain Terrorists or for Terrorist Purposes);
     Nuclear, Biological, and Chemical Weapons and Materials.--
Sec.  2M6.1 (Unlawful Activity Involving Nuclear, Biological, or 
Chemical Weapons or Materials, or Other Weapons of Mass Destruction);
     Use of Minors in Crimes of Violence.--Sec.  2X6.1 (Using 
Minors in Crimes of Violence).
    (3) Exclusion.--For purposes of this guideline, a conviction under 
federal or state law based upon a finding of recklessness or negligence 
is not a `crime of violence.' ''.
    Section 4B1.2(b) is amended by striking the following:
    ``The term `controlled substance offense' means an offense under 
federal or state law, punishable by imprisonment for a term exceeding 
one year, that prohibits the manufacture, import, export, distribution, 
or dispensing of a controlled substance (or a counterfeit substance) or 
the possession of a controlled substance (or a counterfeit substance) 
with intent to manufacture, import, export, distribute, or dispense.'',
    and inserting the following:
    Controlled Substance Offense.--
    (1) In General.--The term `controlled substance offense' means any 
of the following offenses:
    (A) Any offense under federal law, punishable by imprisonment for a 
term exceeding one year--
    (i) for which the applicable Chapter Two guideline (as determined 
under the provisions of Sec.  1B1.2 (Applicable Guidelines)); or
    (ii) to which Sec.  2X1.1 (Attempt, Solicitation, or Conspiracy) or 
Sec.  2X2.1 (Aiding and Abetting) applies and the appropriate guideline 
for the offense the defendant aided or abetted, or conspired, 
solicited, or attempted to commit;
    is one of the guidelines listed in paragraph (2).
    (B) Any offense under state law (or the offense of aiding or 
abetting, or conspiring, soliciting, or attempting to commit any such 
offense), punishable by imprisonment for a term exceeding one year, for 
which the most appropriate guideline would have been one of the Chapter 
Two guidelines listed in paragraph (2) had the defendant been sentenced 
under the guidelines in federal court (as determined under subsection 
(c)).
    (C) Any offense described in chapter 705 of title 46, United States 
Code.
    (2) Guidelines Listed.--For purposes of the `controlled substance 
offense' definition, use the following Chapter Two guidelines:
     Sec. Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking); 2D1.9 (Placing or Maintaining Dangerous 
Devices on Federal Property to Protect Unlawful Production of Drugs); 
2D1.11 (Unlawfully Distributing, Importing, Exporting, or Possessing 
Listed Chemicals)[;]
    [ Sec. Sec.  2D1.2 (Drug Offenses Occurring Near Protected 
Locations or Involving Certain Individuals); 2D1.6 (Use of 
Communication Facility in Committing Drug Offense), if the appropriate 
guideline for the underlying offense is also listed in this paragraph; 
2D1.8 (Renting or Managing Drug Establishments); 2D1.10 (Life 
Endangerment While Manufacturing Drugs); 2D1.12 (Unlawful Possession, 
Manufacture, Distribution, Transportation, Exportation, or Importation 
of Prohibited Items)].
    (3) Exclusion.--For purposes of this guideline, a conviction under 
federal or state law based upon a finding of recklessness or negligence 
is not a `controlled substance offense.' ''.
    Section 4B1.2 is amended--
    by redesignating subsection (c) as subsection (d);
    by adding the following new subsection (c):
    ``(c) Determination of Whether a State Offense Is a `Crime of 
Violence' or a `Controlled Substance Offense'.--For purposes of 
determining whether a state offense is a `crime of violence' or a 
`controlled substance offense' under

[[Page 7212]]

subsection (a)(1)(B) or (b)(1)(B), the `most appropriate guideline' is 
the Chapter Two guideline that covers the type of conduct most similar 
to the offense charged in the count of which the defendant was 
convicted. The court shall make this determination based on: (1) the 
elements, and any means of committing such an element, that formed the 
basis of the defendant's conviction, and (2) the offense conduct cited 
in the count of conviction, or a fact admitted or confirmed by the 
defendant, that establishes any such elements or means.'';
    and in subsection (d) (as so redesignated) by inserting at the 
beginning the following new heading ``Two Prior Felony Convictions.--
''.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking the following:
    ``Definitions.--For purposes of this guideline--
    `Crime of violence' and `controlled substance offense, include the 
offenses of aiding and abetting, conspiring, and attempting to commit 
such offenses.
    `Forcible sex offense' includes where consent to the conduct is not 
given or is not legally valid, such as where consent to the conduct is 
involuntary, incompetent, or coerced. The offenses of sexual abuse of a 
minor and statutory rape are included only if the sexual abuse of a 
minor or statutory rape was (A) an offense described in 18 U.S.C. 
2241(c) or (B) an offense under state law that would have been an 
offense under section 2241(c) if the offense had occurred within the 
special maritime and territorial jurisdiction of the United States.
    `Extortion' is obtaining something of value from another by the 
wrongful use of (A) force, (B) fear of physical injury, or (C) threat 
of physical injury.
    Unlawfully possessing a listed chemical with intent to manufacture 
a controlled substance (21 U.S.C. 841(c)(1)) is a `controlled substance 
offense.'
    Unlawfully possessing a prohibited flask or equipment with intent 
to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a 
`controlled substance offense.'
    Maintaining any place for the purpose of facilitating a drug 
offense (21 U.S.C. 856) is a `controlled substance offense' if the 
offense of conviction established that the underlying offense (the 
offense facilitated) was a `controlled substance offense.'
    Using a communications facility in committing, causing, or 
facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled 
substance offense' if the offense of conviction established that the 
underlying offense (the offense committed, caused, or facilitated) was 
a `controlled substance offense.'
    A violation of 18 U.S.C. 924(c) or Sec.  929(a) is a `crime of 
violence' or a `controlled substance offense' if the offense of 
conviction established that the underlying offense was a `crime of 
violence' or a `controlled substance offense'. (Note that in the case 
of a prior 18 U.S.C. 924(c) or Sec.  929(a) conviction, if the 
defendant also was convicted of the underlying offense, the sentences 
for the two prior convictions will be treated as a single sentence 
under Sec.  4A1.2 (Definitions and Instructions for Computing Criminal 
History).)
    `Prior felony conviction' means a prior adult federal or state 
conviction for an offense punishable by death or imprisonment for a 
term exceeding one year, regardless of whether such offense is 
specifically designated as a felony and regardless of the actual 
sentence imposed. A conviction for an offense committed at age eighteen 
or older is an adult conviction. A conviction for an offense committed 
prior to age eighteen is an adult conviction if it is classified as an 
adult conviction under the laws of the jurisdiction in which the 
defendant was convicted (e.g., a federal conviction for an offense 
committed prior to the defendant's eighteenth birthday is an adult 
conviction if the defendant was expressly proceeded against as an 
adult).'',
    and inserting the following:
    `` `Prior Felony Conviction' Defined.--`Prior felony conviction,' 
for purposes of this guideline, means a prior adult federal or state 
conviction for an offense punishable by death or imprisonment for a 
term exceeding one year, regardless of whether such offense is 
specifically designated as a felony and regardless of the actual 
sentence imposed. A conviction for an offense committed at age eighteen 
or older is an adult conviction. A conviction for an offense committed 
prior to age eighteen is an adult conviction if it is classified as an 
adult conviction under the laws of the jurisdiction in which the 
defendant was convicted (e.g., a federal conviction for an offense 
committed prior to the defendant's eighteenth birthday is an adult 
conviction if the defendant was expressly proceeded against as an 
adult).'';
    in Note 2 by striking the following:
    ``Offense of Conviction as Focus of Inquiry.--Section 4B1.1 (Career 
Offender) expressly provides that the instant and prior offenses must 
be crimes of violence or controlled substance offenses of which the 
defendant was convicted. Therefore, in determining whether an offense 
is a crime of violence or controlled substance for the purposes of 
Sec.  4B1.1 (Career Offender), the offense of conviction (i.e., the 
conduct of which the defendant was convicted) is the focus of 
inquiry.'',
    and inserting the following:
    ``Determination of Whether a State Offense Is a `Crime of Violence' 
or a `Controlled Substance Offense.'--In determining whether a state 
offense is a `crime of violence' or a `controlled substance offense' 
under subsection (a)(1)(B) or (b)(1)(B), the court may only consider 
the statute of conviction and the following sources of information:
    (A) The judgment of conviction.
    (B) The charging document.
    (C) The jury instructions.
    (D) The judge's formal rulings of law or findings of fact.
    (E) The plea agreement or transcript of colloquy between judge and 
defendant in which the factual basis of the guilty plea was confirmed 
by the defendant.
    (F) Any explicit factual finding by the trial judge to which the 
defendant assented.
    (G) Any comparable judicial record of the sources described in 
paragraphs (A) through (F).
    The fact that the statute of conviction describes conduct that is 
broader than, or encompasses types of conduct in addition to, the type 
of conduct covered by any of the Chapter Two guidelines listed in 
subsection (a)(2) or (b)(2) is not determinative.'';
    in Note 3 by striking ``The provisions of Sec.  4A1.2 (Definitions 
and Instructions for Computing Criminal History) are applicable to the 
counting of convictions under Sec.  4B1.1.'' and inserting the 
following:
    ``The provisions of Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History) are applicable to the counting of 
convictions under Sec.  4B1.1. Note that in the case of a prior 18 
U.S.C. 924(c) or Sec.  929(a) conviction, if the defendant also was 
convicted of the underlying offense, the sentences for the two prior 
convictions will be treated as a single sentence under Sec.  
4A1.2(a)(2).'';
    and by striking Note 4 as follows:
    ``Upward Departure for Burglary Involving Violence.--There may be 
cases in which a burglary involves violence, but does not qualify as a 
`crime of violence' as defined in Sec.  4B1.2(a) and, as a result, the 
defendant does not receive a higher offense level or higher Criminal 
History Category that would have applied if the burglary qualified as a 
`crime of violence.' In such a case, an upward departure may be 
appropriate.''.

[[Page 7213]]

    The Commentary to Sec.  4B1.2 is amended by adding at the end the 
following:
    ``Background: Section 4B1.2 defines the terms `crime of violence,' 
`controlled substance offense,' and `two prior felony convictions' for 
purposes of Sec.  4B1.1 (Career Offender). Prior to [2023], to 
determine if an offense met the definition of `crime of violence' or 
`controlled substance offense' in Sec.  4B1.2, courts typically used 
the categorical approach and the modified categorical approach, as set 
forth in Supreme Court jurisprudence. See, e.g., Taylor v. United 
States, 495 U.S. 575 (1990); Shepard v. United States, 544 U.S. 13 
(2005); Descamps v. United States, 570 U.S. 254 (2013); Mathis v. 
United States, 579 U.S. 500 (2016). These Supreme Court cases, however, 
involved statutory provisions (e.g., 18 U.S.C. 924(e)) rather than 
guideline provisions.
    In [2023], the Commission amended Sec.  4B1.2 to set forth an 
approach for determining whether an offense is a `crime of violence' or 
a `controlled substance offense' that does not require the application 
of the categorical approach and modified categorical approach 
established by Supreme Court jurisprudence. See USSG App. C, Amendment 
[ ] (effective [Date]). The definitions of `crime of violence' and 
`controlled substance offense,' rather than describing offenses or 
elements of an offense, are based upon a list of guidelines. The focus 
of inquiry is whether the defendant was convicted of a federal offense 
for which the applicable Chapter Two guideline is one of the listed 
guidelines, or a state offense for which the `most appropriate' Chapter 
Two guideline would have been one of the listed guidelines had the 
defendant been sentenced in federal court under the guidelines. The 
approach set forth by this guideline requires the court to consider not 
only the statute of conviction, but also the offense conduct cited in 
the count of conviction, or a fact admitted or confirmed by the 
defendant, that establishes any of the elements, and any means of 
committing such an element, that formed the basis of the defendant's 
conviction. The court is also permitted to use certain additional 
sources of information, as appropriate, while conducting this 
inquiry.''.
    The Commentary to Sec.  2K1.3 captioned ``Application Notes'' is 
amended in Note 2--
    in the paragraph that begins '' `Controlled substance offense' has 
the meaning'' by striking ``has the meaning given that term in Sec.  
4B1.2(b) and Application Note 1 of the Commentary to Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1)'' and inserting ``means a 
`controlled substance offense' as defined and determined in accordance 
with Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1)'';
    and in the paragraph that begins '' `Crime of violence' has the 
meaning'' by striking ``has the meaning given that term in Sec.  
4B1.2(a) and Application Note 1 of the Commentary to Sec.  4B1.2'' and 
inserting ``means a `crime of violence' as defined and determined in 
accordance with Sec.  4B1.2 (Definitions of Terms Used in Section 
4B1.1)''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended--
    in Note 1--
    in the paragraph that begins '' `Controlled substance offense' has 
the meaning'' by striking ``has the meaning given that term in Sec.  
4B1.2(b) and Application Note 1 of the Commentary to Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1)'' and inserting ``means a 
`controlled substance offense' as defined and determined in accordance 
with Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1)'';
    and in the paragraph that begins '' `Crime of violence' has the 
meaning'' by striking ``has the meaning given that term in Sec.  
4B1.2(a) and Application Note 1 of the Commentary to Sec.  4B1.2'' and 
inserting ``means a `crime of violence' as defined and determined in 
accordance with Sec.  4B1.2 (Definitions of Terms Used in Section 
4B1.1)'';
    and in Note 13(B) by striking ``have the meaning given those terms 
in Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1)'' and 
inserting ``mean a `crime of violence' and a `controlled substance 
offense' as defined and determined in accordance with Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1)''.
    The Commentary to Sec.  2S1.1 captioned ``Application Notes'' is 
amended in Note 1, in the paragraph that begins '' `Crime of violence' 
has the meaning'' by striking ``has the meaning given that term in 
subsection (a)(1) of Sec.  4B1.2 (Definitions of Terms Used in Section 
4B1.1)'' and inserting ``means a `crime of violence' as defined and 
determined in accordance with Sec.  4B1.2 (Definitions of Terms Used in 
Section 4B1.1)''.
    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended in Note 5 by striking ``has the meaning given that term in 
Sec.  4B1.2(a)'' and inserting ``means a `crime of violence' as defined 
and determined in accordance with Sec.  4B1.2 (Definitions of Terms 
Used in Section 4B1.1)''.
    Section 4A1.2(p) is amended by striking ``the definition of `crime 
of violence' is that set forth in Sec.  4B1.2(a)'' and inserting '' 
`crime of violence' means a `crime of violence' as defined and 
determined in accordance with Sec.  4B1.2 (Definitions of Terms Used in 
Section 4B1.1)''.
    Section 4B1.4 is amended--
    in subsection (b)(3)(A) by striking ``in connection with either a 
crime of violence, as defined in Sec.  4B1.2(a), or a controlled 
substance offense, as defined in Sec.  4B1.2(b)'' and inserting ``in 
connection with either a crime of violence or a controlled substance 
offense, as defined and determined in accordance with Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1)'';
    and in subsection (c)(2) by striking ``in connection with either a 
crime of violence, as defined in Sec.  4B1.2(a), or a controlled 
substance offense, as defined in Sec.  4B1.2(b)'' and inserting ``in 
connection with either a crime of violence or a controlled substance 
offense, as defined and determined in accordance with Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1)''.
    The Commentary to Sec.  5K2.17 captioned ``Application Note'' is 
amended in Note 1 by striking ``are defined in Sec.  4B1.2 (Definitions 
of Terms Used in Section 4B1.1)'' and inserting ``mean a `crime of 
violence' and a `controlled substance offense' as defined and 
determined in accordance with Sec.  4B1.2 (Definitions of Terms Used in 
Section 4B1.1)''.
    The Commentary to Sec.  7B1.1 captioned ``Application Notes'' is 
amended--
    in Note 2 by striking ``is defined in Sec.  4B1.2 (Definitions of 
Terms Used in Section 4B1.1). See Sec.  4B1.2(a) and Application Note 1 
of the Commentary to Sec.  4B1.2'' and inserting ``means a `crime of 
violence' as defined and determined in accordance with Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1)'';
    and in Note 3 by striking ``is defined in Sec.  4B1.2 (Definitions 
of Terms Used in Section 4B1.1). See Sec.  4B1.2(b) and Application 
Note 1 of the Commentary to Sec.  4B1.2'' and inserting ``means a 
`controlled substance offense' as defined and determined in accordance 
with Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1)''.
Issues for Comment
    1. Part A of the proposed amendment would allow courts to look to 
the documents expressly approved in Taylor v. United States, 495 U.S. 
575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), in 
determining whether a conviction is a ``crime of violence'' or a 
``controlled substance offense.''
    The Commission seeks comment on whether additional or different 
guidance

[[Page 7214]]

should be provided. For example, should the Commission provide a 
specific set of factors to assess the reliability of a source of 
information, such as whether the document came out of the adversarial 
process, was accepted by both parties, or was made by an impartial 
third party? Should the Commission list specific sources or types of 
sources that courts may consider, in addition to the sources expressly 
approved in Taylor and Shepard (i.e., the Shepard documents)? Are there 
any documents or types of information that should be expressly 
excluded?
    2. The Commentary to Sec.  2L1.2 (Unlawfully Entering or Remaining 
in the United States) contains definitions for the terms ``crime of 
violence'' and ``drug trafficking offense'' that closely track the 
definitions of ``crime of violence'' and ``controlled substance 
offense,'' respectively, in Sec.  4B1.2(b). See USSG Sec.  2L1.2, 
comment. (n.2).
    If the Commission were to promulgate Part A of the proposed 
amendment, should the Commission also amend the Commentary to Sec.  
2L1.2 to mirror the proposed approach for Sec.  4B1.2?
(B) Meaning of ``Robbery''
    Synopsis of Proposed Amendment: In 2016, the Commission amended 
Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1) to, among 
other things, delete the ``residual clause'' and revise the 
``enumerated offenses clause'' by moving enumerated offenses that were 
previously listed in the commentary to the guideline itself. See USSG, 
App. C, Amendment 798 (effective Aug. 1, 2016). The ``enumerated 
offenses clause'' identifies specific offenses that qualify as crimes 
of violence. Although the guideline relies on existing case law for 
purposes of defining most enumerated offenses, the amendment added to 
the Commentary to Sec.  4B1.2 definitions for two of the enumerated 
offenses: ``forcible sex offense'' and ``extortion.''
    ``Extortion'' is defined as ``obtaining something of value from 
another by the wrongful use of (A) force, (B) fear of physical injury, 
or (C) threat of physical injury.'' USSG Sec.  4B1.2, comment. (n.1). 
Under case law existing at the time of the amendment, courts generally 
defined extortion as ``obtaining something of value from another with 
his consent induced by the wrongful use of force, fear, or threats,'' 
based on the Supreme Court's holding in United States v. Nardello, 393 
U.S. 286, 290 (1969) (defining ``extortion'' for purposes of 18 U.S.C. 
1952). However, consistent with the Commission's goal of focusing the 
career offender and related enhancements on the most dangerous 
offenders, the amendment narrowed the generic definition of extortion 
by limiting it to offenses having an element of force or an element of 
fear or threats ``of physical injury,'' as opposed to non-violent 
threats such as injury to reputation.
    The Department of Justice has expressed concern that courts have 
held that certain robbery offenses, such as Hobbs Act robbery, no 
longer constitute a ``crime of violence'' under the guideline, as 
amended in 2016, because the statute of conviction does not fit either 
the generic definition of ``robbery'' or the new guideline definition 
of ``extortion.'' See, e.g., Annual Letter from the Department of 
Justice to the Commission (Aug. 10, 2018), at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20180810/DOJ.pdf. The Hobbs Act defines the term ``robbery'' as ``the unlawful 
taking or obtaining of personal property from the person or in the 
presence of another, against his will, by means of actual or threatened 
force, or violence, or fear of injury, immediate or future, to his 
person or property . . . . '' 18 U.S.C. 1951(b)(1) (emphasis added). 
Following the 2016 amendment, every circuit court addressing the issue 
has concluded that Hobbs Act robbery does not fall within Sec.  4B1.2's 
narrow definition of ``crime of violence.'' See United States v. 
Chappelle, 41 F.4th 102 (2d Cir. 2022); United States v. Scott, 14 
F.4th 190 (3d Cir. 2021); United States v. Prigan, 8 F.4th 1115 (9th 
Cir. 2021); United States v. Green, 996 F.3d 176 (4th Cir. 2021); 
Bridges v. United States, 991 F.3d 793 (7th Cir. 2021); United States 
v. Eason, 953 F.3d 1184 (11th Cir. 2020); United States v. Camp, 903 
F.3d 594 (6th Cir. 2018); United States v. Edling, 895 F.3d 1153 (9th 
Cir. 2018); United States v. O'Connor, 874 F.3d 1147 (10th Cir. 2017). 
At least two circuits--the Ninth and Tenth Circuits--have found 
ambiguity as to whether the guideline definition of extortion includes 
injury to property, and (under the rule of lenity) both circuits have 
interpreted the new definition as excluding prior convictions where the 
statute encompasses injury to property offenses, such as Hobbs Act 
robbery. See, e.g., United States v. O'Connor, 874 F.3d 1147 (10th Cir. 
2017) (Hobbs Act robbery); United States v. Edling, 895 F.3d 1153 (9th 
Cir. 2018) (Nevada robbery).
    Part B of the proposed amendment would amend Sec.  4B1.2 to address 
this issue. First, it would move the definitions of enumerated offenses 
(i.e., ``forcible sex offense'' and ``extortion'') and ``prior felony 
conviction'' from the Commentary to Sec.  4B1.2 to a new subsection (d) 
in the guideline itself. Second, Part B of the proposed amendment would 
add to new subsection (d) a definition of ``robbery'' that mirrors the 
``robbery'' definition at 18 U.S.C. 1951(b)(1). Specifically, it would 
provide that ``robbery'' is ``the unlawful taking or obtaining of 
personal property from the person or in the presence of another, 
against his will, by means of actual or threatened force, or violence, 
or fear of injury, immediate or future, to his person or property, or 
property in his custody or possession, or the person or property of a 
relative or member of his family or of anyone in his company at the 
time of the taking or obtaining.'' Finally, Part B of the proposed 
amendment brackets the possibility of defining the phrase ``actual or 
threatened use of force,'' for purposes of the ``robbery'' definition, 
as ``force that is sufficient to overcome a victim's resistance.'' This 
definition is informed by the Supreme Court's holding in Stokeling v. 
United States, 139 S. Ct. 544 (2019).
    In addition, Part B of the proposed amendment sets forth conforming 
changes to the definition of ``crime of violence'' in the Commentary to 
Sec.  2L1.2 (Unlawfully Entering or Remaining in the United States), 
which includes robbery as an enumerated offense.
    Issues for comment are also provided.
Proposed Amendment
    Section 4B1.2(a) is amended by inserting at the beginning the 
following new heading ``Crime of Violence.--''.
    Section 4B1.2(b) is amended by inserting at the beginning the 
following new heading ``Controlled Substance Offense.--''.
    Section 4B1.2(c) is amended by inserting at the beginning the 
following new heading ``Two Prior Felony Convictions.--''.
    Section 4B1.2 is amended by adding at the end the following new 
subsection (d):
    ``(d) Additional Definitions.--
    (1) Forcible Sex Offense.--`Forcible sex offense' includes where 
consent to the conduct is not given or is not legally valid, such as 
where consent to the conduct is involuntary, incompetent, or coerced. 
The offenses of sexual abuse of a minor and statutory rape are included 
only if the sexual abuse of a minor or statutory rape was (A) an 
offense described in 18 U.S.C. 2241(c) or (B) an offense under state 
law that would have been an offense under section 2241(c) if the 
offense had occurred within the special maritime and territorial 
jurisdiction of the United States.

[[Page 7215]]

    (2) Extortion.--`Extortion' is obtaining something of value from 
another by the wrongful use of (A) force, (B) fear of physical injury, 
or (C) threat of physical injury.
    (3) Robbery.--`Robbery' is the unlawful taking or obtaining of 
personal property from the person or in the presence of another, 
against his will, by means of actual or threatened force, or violence, 
or fear of injury, immediate or future, to his person or property, or 
property in his custody or possession, or the person or property of a 
relative or member of his family or of anyone in his company at the 
time of the taking or obtaining. [The phrase `actual or threatened 
force' refers to force that is sufficient to overcome a victim's 
resistance.]
    (4) Prior Felony Conviction.-- `Prior felony conviction' means a 
prior adult federal or state conviction for an offense punishable by 
death or imprisonment for a term exceeding one year, regardless of 
whether such offense is specifically designated as a felony and 
regardless of the actual sentence imposed. A conviction for an offense 
committed at age eighteen or older is an adult conviction. A conviction 
for an offense committed prior to age eighteen is an adult conviction 
if it is classified as an adult conviction under the laws of the 
jurisdiction in which the defendant was convicted (e.g., a federal 
conviction for an offense committed prior to the defendant's eighteenth 
birthday is an adult conviction if the defendant was expressly 
proceeded against as an adult).''.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended in Note 1--
    in the heading by striking ``Definitions.--'' and inserting 
``Further Considerations Regarding `Crimes of Violence' and `Controlled 
Substance Offenses'.--'';
    by striking the following two paragraphs:
    `` `Forcible sex offense' includes where consent to the conduct is 
not given or is not legally valid, such as where consent to the conduct 
is involuntary, incompetent, or coerced. The offenses of sexual abuse 
of a minor and statutory rape are included only if the sexual abuse of 
a minor or statutory rape was (A) an offense described in 18 U.S.C. 
2241(c) or (B) an offense under state law that would have been an 
offense under section 2241(c) if the offense had occurred within the 
special maritime and territorial jurisdiction of the United States.
    `Extortion' is obtaining something of value from another by the 
wrongful use of (A) force, (B) fear of physical injury, or (C) threat 
of physical injury.'';
    and by striking the last paragraph as follows:
    `` `Prior felony conviction' means a prior adult federal or state 
conviction for an offense punishable by death or imprisonment for a 
term exceeding one year, regardless of whether such offense is 
specifically designated as a felony and regardless of the actual 
sentence imposed. A conviction for an offense committed at age eighteen 
or older is an adult conviction. A conviction for an offense committed 
prior to age eighteen is an adult conviction if it is classified as an 
adult conviction under the laws of the jurisdiction in which the 
defendant was convicted (e.g., a federal conviction for an offense 
committed prior to the defendant's eighteenth birthday is an adult 
conviction if the defendant was expressly proceeded against as an 
adult).''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 2, in the paragraph that begins `` `Crime of violence' 
means'' by inserting after ``territorial jurisdiction of the United 
States.'' the following: `` `Robbery' is the unlawful taking or 
obtaining of personal property from the person or in the presence of 
another, against his will, by means of actual or threatened force, or 
violence, or fear of injury, immediate or future, to his person or 
property, or property in his custody or possession, or the person or 
property of a relative or member of his family or of anyone in his 
company at the time of the taking or obtaining. [The phrase `actual or 
threatened force' refers to force that is sufficient to overcome a 
victim's resistance.]''.
Issues for Comment
    1. Part B of the proposed amendment would provide a definition of 
``robbery'' for purposes of Sec.  4B1.2 (Definitions of Terms Used in 
Section 4B1.1) and Sec.  2L1.2 (Unlawfully Entering or Remaining in the 
United States) that mirrors the Hobbs Act definition of ``robbery'' at 
18 U.S.C. 1951(b)(1). The Commission seeks comment on whether the 
proposed definition of ``robbery'' is appropriate. Are there robbery 
offenses that are covered by the proposed definition but should not be? 
Are there robbery offenses that are not covered by the proposed 
definition but should be?
    2. Part B of the proposed amendment brackets the possibility of 
defining the phrase ``actual or threatened force,'' for purposes of the 
proposed ``robbery'' definition, as ``force that is sufficient to 
overcome a victim's resistance,'' which is consistent with the Supreme 
Court's holding in Stokeling v. United States, 139 S. Ct. 544, 550 
(2019). The Commission seeks comment regarding whether the definition 
of ``actual or threatened force'' is necessary after the Stokeling 
decision. If so, is the proposed definition of the phrase appropriate? 
Are there robbery offenses that would be covered by defining ``actual 
or threatened force'' in such a way but should not be? Are there 
robbery offenses that would not be covered but should be?

(C) Inchoate Offenses

    Synopsis of Proposed Amendment: The career offender guideline 
includes convictions for inchoate offenses and offenses arising from 
accomplice liability, such as aiding and abetting, conspiring to 
commit, and attempting to commit a ``crime of violence'' and a 
``controlled substance offense.'' See USSG Sec.  4B1.2, comment. (n.1). 
In the original 1987 Guidelines Manual, these offenses were included 
only in the definition of ``controlled substance offense.'' See USSG 
Sec.  4B1.2, comment. (n.2) (effective Nov. 1, 1987). In 1989, the 
Commission amended the guideline to provide that both definitions--
``crime of violence'' and ``controlled substance offense''--include the 
offenses of aiding and abetting, conspiracy, and attempt to commit such 
crimes. See USSG App. C, Amendment 268 (effective Nov. 1, 1989). Two 
circuit conflicts have now arisen relating to the definitions of 
``crime of violence'' and ``controlled substance offense'' in Sec.  
4B1.2 (Definitions of Terms Used in Section 4B1.1) and their inclusion 
of inchoate offenses.
    The first circuit conflict concerns whether the definition of 
controlled substance offense in Sec.  4B1.2(b) includes the inchoate 
offenses listed in Application Note 1 to Sec.  4B1.2. Although courts 
had previously held that Sec.  4B1.2's definitions include inchoate 
offenses based on the Commentary to Sec.  4B1.2 and the Supreme Court's 
decision in Stinson v. United States, 508 U.S. 36 (1993), four circuits 
have now held that Sec.  4B1.2(b)'s definition of a ``controlled 
substance offense'' does not include inchoate offenses because such 
offenses are not expressly included in the guideline text, while five 
have continued with their long-standing holding that such offenses are 
included.
    The Third, Fourth, Sixth, and D.C. Circuits have held that inchoate 
offenses are not included in the definition of a ``controlled substance 
offense'' because the commentary is inconsistent with the text of the 
guideline and, thus, does not control. These courts have concluded that 
that the Commission exceeded its authority under Stinson when it

[[Page 7216]]

attempted to incorporate inchoate offenses to Sec.  4B1.2(b)'s 
definition through the commentary, because the commentary can only 
interpret or explain the guideline, it cannot expand its scope by 
adding qualifying offenses. See United States v. Winstead, 890 F.3d 
1082, 1090-92 (D.C. Cir. 2018) (Where the guideline ``present[ed] a 
very detailed `definition' of controlled substance offense that clearly 
excludes inchoate offenses,'' the Commentary's inclusion of such 
offenses had ``no grounding in the guidelines themselves.''); United 
States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (``To make 
attempt crimes a part of Sec.  4B1.2(b), the Commission did not 
interpret a term in the guideline itself--no term in Sec.  4B1.2(b) 
would bear that construction. Rather, the Commission used Application 
Note 1 to add an offense not listed in the guideline.''); United States 
v. Nasir, 982 F.3d 144, 156-60 (3d Cir. 2020) (en banc), vacated and 
remanded on other grounds, 142 S. Ct. 56, 211 L.Ed.2d 1 (2021), aff'd 
on remand, 17 F.4th 459, 467-72 (3d Cir. 2021) (en banc); United States 
v. Campbell, 22 F.4th 438, 444-47 (4th Cir. 2022).
    The First, Second, Seventh, Eighth, Ninth, and Eleventh Circuits 
continue to hold that inchoate offenses like attempt and conspiracy 
qualify as controlled substance offenses, reasoning that the commentary 
is consistent with the text of Sec.  4B1.2(b) because it does not 
include any offense that is explicitly excluded by the text of the 
guideline. See United States v. Smith, 989 F.3d 575, 583-85 (7th Cir. 
2021) (citing United States v. Adams, 934 F.3d 720, 727-29 (7th Cir. 
2019) (``conclud[ing] that Sec.  4B1.2's Application Note 1 is 
authoritative and that `controlled substance offense' includes inchoate 
offenses'' (citation omitted)), cert. denied, 142 S.Ct. 488 (2021); 
accord United States v. Lewis, 963 F.3d 16, 21-23 (1st Cir. 2020); 
United States v. Richardson, 958 F.3d 151, 154-55 (2d Cir. 2020) 
(citing United States v. Tabb, 949 F.3d 81, 87-89 (2d Cir. 2020)); 
United States v. Garcia, 946 F.3d 413, 417 (8th Cir. 2019); United 
States v. Crum, 934 F.3d 963, 966 (9th Cir. 2019); United States v. 
Lange, 862 F.3d 1290, 1295 (11th Cir. 2017). See also United States v. 
Goodin, 835 F. App'x 771, 782 n.1 (5th Cir. 2021) (unpublished) (noting 
that circuit precedent provides that Application Note 1 in the career 
offender guideline is binding).
    The second circuit conflict concerns whether certain conspiracy 
offenses qualify as crimes of violence or controlled substance 
offenses. Some courts have employed a two-step analysis in determining 
whether a prior conviction for conspiracy to commit a crime of violence 
or controlled substance offense is itself a crime of violence or 
controlled substance offense, by first comparing the substantive 
offense to its generic definition and then separately comparing the 
inchoate offense to its generic definition. See, e.g., United States v. 
McCollum, 885 F.3d 300, 303 (4th Cir. 2018) (Employing a two-step 
categorical approach and concluding that conspiracy to commit murder in 
aid of racketeering is not categorically a crime of violence because 
generic conspiracy requires an overt act while the conspiracy at issue 
does not). In doing so, these courts have held that because the generic 
definition of conspiracy requires proof of an overt act, certain 
conspiracy offenses that do not contain an ``overt act'' element are 
categorically excluded as crimes of violence or controlled substance 
offenses, even though the substantive crime is a crime of violence or a 
controlled substance offense. See, e.g., United States v. Norman, 935 
F.3d 232, 237-39 (4th Cir. 2019) (finding that prior federal 
convictions for conspiracy to distribute and possess with intent to 
distribute crack cocaine under 21 U.S.C. 846 do not qualify as 
controlled substance offenses, even though there is no dispute that the 
underlying drug trafficking crimes qualify as controlled substance 
offenses); United States v. Martinez-Cruz, 836 F.3d 1305, 1314 (10th 
Cir. 2016) (holding that there is ``no evidence [of the intent of the 
Sentencing Commission] regarding whether a conspiracy conviction 
requires an overt act--except for the plain language of the guideline, 
which uses a generic, undefined term, ripe for the categorical 
approach.'')
    In contrast, the First and Second Circuits have declined to follow 
this reasoning, holding instead that ``[t]he text and structure of 
Application Note 1 demonstrate that it was intended to include Section 
846 narcotics conspiracy. Application Note 1 clarifies that `controlled 
substance offenses' include `the offense[ ] of . . . conspiring . . . 
to commit such offenses,' language that on its face encompasses federal 
narcotics conspiracy.'' United States v. Tabb, 949 F.3d 81, 88 (2d Cir. 
2020), cert. denied, 141 S. Ct. 2793 (2021) (``To us, it is patently 
evident that Application Note 1 was intended to and does encompass 
Section 846 narcotics conspiracy.''); see also United States v. Lewis, 
963 F.3d 16, 26-27 (1st Cir. 2020).
    Part C of the proposed amendment would address these circuit 
conflicts by amending Sec.  4B1.2 and its commentary. First, it would 
move the inchoate offenses provision from the Commentary to Sec.  4B1.2 
to the guideline itself as a new subsection (c). Second, Part C of the 
proposed amendment would revise the provision to provide that the terms 
``crime of violence'' and ``controlled substance offense'' include 
aiding and abetting, attempting to commit, or conspiring to commit any 
such offense, or any other inchoate offense or offense arising from 
accomplice liability involving a ``crime of violence'' or a 
``controlled substance offense.''
    Third, Part C of the proposed amendment addresses the circuit 
conflict regarding whether certain conspiracy offenses qualify as 
crimes of violence or controlled substance offenses. Two options are 
provided.
    Option 1 would address the conspiracy issue in a comprehensive 
manner that would be applicable to all other inchoate offenses and 
offenses arising from accomplice liability. It would eliminate the need 
for the two-step analysis discussed above by adding the following to 
new subsection (c): ``To determine whether any offense described above 
qualifies as a `crime of violence' or `controlled substance offense,' 
the court shall only determine whether the underlying substantive 
offense is a `crime of violence' or a `controlled substance offense,' 
and shall not consider the elements of the inchoate offense or offense 
arising from accomplice liability.''
    Option 2 would take a narrower approach, addressing only conspiracy 
offenses without addressing whether a court must perform the two-step 
analysis described above with regard to other inchoate offenses. Option 
2 would instead add a provision to new subsection (c) that brackets two 
alternatives addressing conspiracy to commit a ``crime of violence'' or 
a ``controlled substance offense.'' The first bracketed alternative 
provides that an offense of conspiring to commit a ``crime of 
violence'' or a ``controlled substance offense'' qualifies as a ``crime 
of violence'' or a ``controlled substance offense,'' regardless of 
whether an overt act must be proved as an element of the conspiracy 
offense. The second bracketed alternative provides that an offense of 
conspiring to commit a ``crime of violence'' or a ``controlled 
substance offense'' qualifies as a ``crime of violence'' or a 
``controlled substance offense,'' only if an overt act must be proved 
as an element of the conspiracy offense.
    Issues for comment are also provided.

[[Page 7217]]

Proposed Amendment
    Section 4B1.2 is amended by redesignating subsection (c) as 
subsection (d), and by adding the following new subsection (c):
    [Option 1 (includes changes to the commentary):
    (c) The terms `crime of violence' and `controlled substance 
offense' include the offenses of aiding and abetting, attempting to 
commit, or conspiring to commit any such offense, or any other inchoate 
offense or offense arising from accomplice liability involving a `crime 
of violence' or a `controlled substance offense.' To determine whether 
any offense described above qualifies as a `crime of violence' or 
`controlled substance offense,' the court shall only determine whether 
the underlying substantive offense is a `crime of violence' or a 
`controlled substance offense,' and shall not consider the elements of 
the inchoate offense or offense arising from accomplice liability.''.]
    [Option 2 (includes changes to the commentary):
    (c) The terms `crime of violence' and `controlled substance 
offense' include the offenses of aiding and abetting, attempting to 
commit, or conspiring to commit any such offense, or any other inchoate 
offense or offense arising from accomplice liability involving a `crime 
of violence' or a `controlled substance offense.' [An offense of 
conspiring to commit a `crime of violence' or a `controlled substance 
offense' qualifies as a `crime of violence' or a `controlled substance 
offense,' regardless of whether an overt act must be proved as an 
element of the conspiracy offense][However, an offense of conspiring to 
commit a `crime of violence' or a `controlled substance offense' 
qualifies as a `crime of violence' or a `controlled substance offense,' 
only if an overt act must be proved as an element of the conspiracy 
offense].''.]
    [Options 1 and 2 (continued):
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking the following paragraph:
    `` `Crime of violence' and `controlled substance offense' include 
the offenses of aiding and abetting, conspiring, and attempting to 
commit such offenses.''.]
Issues for Comment
    1. In determining whether an inchoate offense is a ``crime of 
violence'' or a ``controlled substance offense,'' some courts have 
employed a two-step analysis. First, courts compare the substantive 
offense to its generic definition to determine whether it is a ``crime 
of violence'' or a ``controlled substance offense.'' Then, these courts 
make a second and separate analysis comparing the inchoate offense 
involving that substantive offense to the generic definition of the 
specific inchoate offense. Option 1 of Part C of the proposed amendment 
would amend Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1) to 
clarify that the offenses of aiding and abetting, attempting to commit, 
[soliciting to commit,] or conspiring to commit a ``crime of violence'' 
or a ``controlled substance offense,'' or any other inchoate offense or 
offense arising from accomplice liability involving a ``crime of 
violence'' or a ``controlled substance offense'' are a ``crime of 
violence'' or a ``controlled substance offense'' if the substantive 
offense is a ``crime of violence'' or a ``controlled substance 
offense.''
    The Commission seeks comment on whether the guidelines should be 
amended to make this clarification by eliminating the two-step analysis 
some courts use in determining whether an inchoate offense is a ``crime 
of violence'' or a ``controlled substance offense.'' Should the 
guidelines adopt a different approach?
    2. The Commission also seeks comment more broadly on how the 
guidelines definitions of ``crime of violence'' and ``controlled 
substance offense'' should address aiding and abetting, attempting to 
commit, soliciting to commit, or conspiring to commit a ``crime of 
violence'' or a ``controlled substance offense,'' or any other inchoate 
offense or offense arising from accomplice liability involving a 
``crime of violence'' or a ``controlled substance offense.'' 
Specifically, should the Commission promulgate any of the options 
provided above? Should the Commission provide additional requirements 
or guidance to address these types of offenses? What additional 
requirements or guidance, if any, should the Commission provide? Should 
the Commission differentiate between ``crimes of violence'' and 
``controlled substance offenses''? For example, should the guidelines 
require proof of an overt act for purposes of a conspiracy to commit a 
controlled substance offense, but not include such a requirement for 
conspiracy to commit a crime of violence?
    Alternatively, should the Commission exclude inchoate offenses and 
offenses arising from accomplice liability altogether as predicate 
offenses for purposes of the ``crime of violence'' and ``controlled 
substance offenses'' definitions?

(D) Definition of ``Controlled Substance Offense''

    Synopsis of Proposed Amendment: Subsection (b) of Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1) defines a ``controlled 
substance offense'' as an offense that prohibits ``the manufacture, 
import, export, distribution, or dispensing of a controlled substance 
(or counterfeit substance) or the possession of a controlled substance 
(or a counterfeit substance) with intent to manufacture, import, 
export, distribute, or dispense.'' USSG Sec.  4B1.2(b).
    The Department of Justice has raised a concern that courts have 
held that state drug statutes that include an offense involving an 
``offer to sell'' a controlled substance do not qualify as a 
``controlled substance offense'' under Sec.  4B1.2(b) because such 
statutes encompass conduct that is broader than Sec.  4B1.2(b)'s 
definition of a ``controlled substance offense.'' See, e.g., Annual 
Letter from the Department of Justice to the Commission (Aug. 10, 
2018), at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20180810/DOJ.pdf. The Commission previously 
addressed a similar issue regarding the definition of a ``drug 
trafficking offense'' in the illegal reentry guideline at Sec.  2L1.2 
(Unlawfully Entering or Remaining in the United States). In 2008, the 
Commission amended the Commentary to Sec.  2L1.2 to clarify that an 
offer to sell a controlled substance is a ``drug trafficking offense'' 
for purposes of that guideline, by adding ``offer to sell'' to the 
conduct listed in the definition of ``drug trafficking offense.'' See 
USSG App. C, Amendment 722 (effective Nov. 1, 2008). In 2016, the 
Commission comprehensively revised Sec.  2L1.2. Among the changes made, 
the Commission amended the definition of ``crime of violence'' in the 
Commentary to Sec.  2L1.2 to conform it to the definition in Sec.  
4B1.2, but the Commission did not make changes to the ``drug 
trafficking offense'' definition in the Commentary to Sec.  2L1.2.
    In addition, a separate issue has arisen as a result of statutory 
changes to chapter 705 of title 46 (``Maritime Drug Law Enforcement 
Act''). The career offender directive at 28 U.S.C. 994(h) directed the 
Commission to assure that ``the guidelines specify a term of 
imprisonment at or near the maximum term authorized'' for offenders who 
are 18 years or older and have been convicted of a felony that is, and 
also have previously been convicted of two or more felonies that are, a 
``crime of violence'' or ``an offense described in section 401 of the 
Controlled Substances

[[Page 7218]]

Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled 
Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and 
chapter 705 of title 46.'' 28 U.S.C. 994(h) (emphasis added). Until 
2016, the only substantive criminal offense included in ``chapter 705 
of title 46'' was codified in section 70503(a) and read as follows:
    An individual may not knowingly or intentionally manufacture or 
distribute, or possess with intent to manufacture or distribute, a 
controlled substance on board--
    (1) a vessel of the United States or a vessel subject to the 
jurisdiction of the United States; or
    (2) any vessel if the individual is a citizen of the United States 
or a resident alien of the United States.

46 U.S.C. 70503(a) (2012). Section 70506(b) provided that a person 
attempting or conspiring to violate section 70503 was subject to the 
same penalties as provided for violating section 70503.
    In 2016, Congress enacted the Coast Guard Authorization Act of 
2015, Public Law 114-120 (2016), amending, among other things, Chapter 
705 of Title 46. Specifically, Congress revised section 70503(a) as 
follows:
    While on board a covered vessel, an individual may not knowingly or 
intentionally--
    (1) manufacture or distribute, or possess with intent to 
manufacture or distribute, a controlled substance;
    (2) destroy (including jettisoning any item or scuttling, burning, 
or hastily cleaning a vessel), or attempt or conspire to destroy, 
property that is subject to forfeiture under section 511(a) of the 
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 
881(a)); or
    (3) conceal, or attempt or conspire to conceal, more than $100,000 
in currency or other monetary instruments on the person of such 
individual or in any conveyance, article of luggage, merchandise, or 
other container, or compartment of or aboard the covered vessel if that 
vessel is outfitted for smuggling.

46 U.S.C. 70503(a). Section 70506(b) remained unchanged. The Act added 
two new offenses to section 70503(a), in subparagraphs (2) and (3). 
Following this statutory change, these two new offenses may not be 
covered by the current definition of ``controlled substance offense'' 
in Sec.  4B1.2.
    Part D of the proposed amendment would amend the definition of 
``controlled substance offense'' in Sec.  4B1.2(b) to address these 
issues. First, it would amend the definition to include offenses 
involving an offer to sell a controlled substance, which would align it 
with the current definition of ``drug trafficking offense'' in the 
Commentary to Sec.  2L1.2. Second, it would revise the ``controlled 
substance offense'' definition to also include ``an offense described 
in 46 U.S.C. 70503(a) or 70506(b).''
    An issue for comment is also provided.
Proposed Amendment
    Section 4B1.2(b) is amended by striking the following:
    ``The term `controlled substance offense' means an offense under 
federal or state law, punishable by imprisonment for a term exceeding 
one year, that prohibits the manufacture, import, export, distribution, 
or dispensing of a controlled substance (or a counterfeit substance) or 
the possession of a controlled substance (or a counterfeit substance) 
with intent to manufacture, import, export, distribute, or dispense.'',
    and inserting the following:
    ``The term `controlled substance offense' means an offense under 
federal or state law, punishable by imprisonment for a term exceeding 
one year, that--
    (1) prohibits the manufacture, import, export, distribution, or 
dispensing of, or offer to sell a controlled substance (or a 
counterfeit substance) or the possession of a controlled substance (or 
a counterfeit substance) with intent to manufacture, import, export, 
distribute, or dispense; or
    (2) is an offense described in 46 U.S.C. 70503(a) or 70506(b).''.
Issue for Comment
    1. Part D of the proposed amendment would amend the definition of 
``controlled substance offense'' in subsection (b) of Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1) to include offenses 
involving an offer to sell a controlled substance. The Commission seeks 
comment on the extent to which such offenses should be included as 
``controlled substance offenses'' for purposes of the career offender 
guideline. Are there other drug offenses that are not included under 
this definition, but should be?
    If the Commission were to amend the definition of ``controlled 
substance offense'' in Sec.  4B1.2(b) to include other drug offenses, 
in addition to offenses involving an offer to sell a controlled 
substance, should the Commission revise the definition of ``controlled 
substance offense'' at Sec.  2L1.2 (Unlawfully Entering or Remaining in 
the United States) to conform it to the revised definition set forth in 
Sec.  4B1.2(b)?

7. Criminal History

    Synopsis of Proposed Amendment: The proposed amendment contains 
three parts (Parts A through C). The Commission is considering whether 
to promulgate any or all of these parts, as they are not mutually 
exclusive. Parts A through C of the proposed amendment all address the 
Commission's priority on criminal history. See U.S. Sent'g Comm'n, 
``Notice of Final Priorities,'' 87 FR 67756 (Nov. 9, 2022) (``In light 
of Commission studies, consideration of possible amendments to the 
Guidelines Manual relating to criminal history to address (A) the 
impact of `status' points under subsection (d) of section 4A1.1 
(Criminal History Category); (B) the treatment of defendants with zero 
criminal history points; and (C) the impact of simple possession of 
marihuana offenses.''). Part B of the proposed amendment also addresses 
the Commission's priority on 28 U.S.C. 994(j). Id. (``Consideration of 
possible amendments to the Guidelines Manual addressing 28 U.S.C. 
994(j).'').
    A defendant's criminal history score is calculated pursuant to 
Chapter Four, Part A (Criminal History). To calculate a criminal 
history score, courts are instructed to assign one, two, or three 
points to qualifying prior sentences under subsections (a) through (c) 
of Sec.  4A1.1 (Criminal History Category). One point is also added 
under Sec.  4A1.1(e) for any prior sentence resulting from a crime of 
violence that was not otherwise already assigned points. Finally, two 
criminal history points are added under Sec.  4A1.1(d) if the defendant 
committed the instant offense ``while under any criminal justice 
sentence, including probation, parole, supervised release, 
imprisonment, work release, or escape status.'' USSG Sec.  4A1.1(e). A 
``criminal justice sentence'' refers to a ``sentence countable under 
Sec.  4A1.2 (Definitions and Instructions for Computing Criminal 
History) having a custodial or supervisory component, although active 
supervision is not required.'' USSG Sec.  4A1.1, comment. (n.4).

(A) Status Points Under Sec.  4A1.1

    ``Status points'' are relatively common in cases with at least one 
criminal history point, having been applied in 37.5 percent of cases 
with criminal history points over the last five fiscal years. Of the 
offenders who received ``status points'', 61.5 percent had a higher CHC 
as a result of the status points. Like other provisions in Chapter 
Four, ``status points'' are included in the

[[Page 7219]]

calculation of a defendant's criminal history as a reflection of 
several statutory purposes of sentencing. As described in the 
Introductory Commentary to Chapter Four, accounting for a defendant's 
criminal history in the guidelines, including status points, addresses 
the need for the sentence ``(A) to reflect the seriousness of the 
offense, to promote respect for the law, and to provide just punishment 
for the offense; (B) to afford adequate deterrence to criminal conduct; 
[and] (C) to protect the public from further crimes of the defendant.'' 
18 U.S.C. 3553(a)(2)(A)-(C). A series of recent Commission publications 
has focused on just one of these purposes of sentencing--specific 
deterrence--through detailed analyses regarding the recidivism rates of 
federal offenders. See, e.g., U.S. Sent'g Comm'n, Recidivism of 
Offenders Released in 2010 (2021), available at https://www.ussc.gov/research/research-reports/recidivism-federal-offenders-released-2010. 
These reports again concluded that a defendant's criminal history 
calculation under the guidelines is strongly associated with the 
likelihood of future recidivism by the defendant. In a related 
publication, the Commission also found, however, that status points add 
little to the overall predictive value associated with the criminal 
history score. U.S. Sent'g Comm'n, Revisiting Status Points (2022), 
available at https://www.ussc.gov/research/research-reports/revisiting-status-points.
    Part A of the proposed amendment addresses the impact of ``status 
points'' under the guidelines. Three options are provided.
    Option 1 would add a downward departure provision in Application 
Note 4 of the Commentary to Sec.  4A1.1 for cases in which ``status 
points'' are applied.
    Option 2 would reduce the impact of ``status points'' overall, by 
decreasing the criminal history points added under Sec.  4A1.1(d) from 
two points to one point. It would also add a departure provision in 
Application Note 4 of the Commentary to Sec.  4A1.1 that could result 
in either an upward departure or a downward departure, depending on the 
circumstances.
    Option 3 would eliminate the ``status points'' provided in Sec.  
4A1.1(d). It would also make conforming changes to Sec.  2P1.1 (Escape, 
Instigating or Assisting Escape) and Sec.  4A1.2 to reflect the removal 
of ``status points'' from the Guidelines Manual. In addition, Option 3 
would amend 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 an upward departure from the 
defendant's criminal history may be warranted.
    Issues for comment are also provided.

(B) Zero Point Offenders

    The Sentencing Table in Chapter Five, Part A of the Guidelines 
Manual comprises two components: offense level and criminal history 
category. Criminal history forms the horizontal axis of the table and 
is divided into six categories, from I (lowest) to VI (highest). 
Chapter Four, Part A of the Guidelines Manual provides instructions on 
how to calculate a defendant's criminal history category by assigning 
points for certain prior convictions. Criminal History Category I 
includes offenders with zero criminal history points and those with one 
criminal history point. Accordingly, the following types of offenders 
are classified under the same category: (1) 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 
subsection (d) and (e) of Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History); (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. In fiscal year 2021, there were 
approximately 17,500 offenders who received zero criminal history 
points, of whom approximately 13,200 had no prior convictions.
    Chapter Five also address what types of sentences a court may 
impose (e.g., probation or imprisonment), according to the location of 
the defendant's applicable sentencing range in one of the four Zones 
(A-D) of the Sentencing Table. Specifically, Sec.  5C1.1 (Imposition of 
a Term of Imprisonment) provides that defendants in Zones A and B may 
receive, in the court's discretion, a probationary sentence or a 
sentence of incarceration; defendants in Zone C may receive a ``split'' 
sentence of incarceration followed by community confinement or a 
sentence of incarceration only at the court's discretion; and 
defendants in Zone D may only receive a sentence of imprisonment absent 
a downward departure or variance from that zone. The Commentary to 
Sec.  5C1.1 contains an application note that provides that ``[i]f the 
defendant is a nonviolent first offender and the applicable guideline 
range is in Zone A or B of the Sentencing Table, the court should 
consider imposing a sentence other than a sentence of imprisonment.'' 
USSG Sec.  5C1.1, comment. (n.4).
    Recidivism data analyzed by the Commission suggest that offenders 
with zero criminal history points (``zero-point'' offenders) have 
considerably lower recidivism rates than other offenders, including 
lower recidivism rates than the offenders in Criminal History Category 
I with one criminal history point. See U.S. Sent'g Comm'n, Recidivism 
of Federal Offenders Released in 2010 (2021), available at https://www.ussc.gov/research/research-reports/recidivism-federal-offenders-released-2010. Among other findings, the report concluded that ``zero-
point'' offenders were less likely to be rearrested than ``one point'' 
offenders (26.8% compared to 42.3%), the largest variation of any 
comparison of offenders within the same Criminal History Category. 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.
    Part B of the proposed amendment sets forth a new Chapter Four 
guideline, at Sec.  4C1.1 (Adjustment for Certain Zero-Point 
Offenders). New Sec.  4C1.1 would provide a decrease of [1 level][2 
levels] from the offense level determined under Chapters Two and Three 
for zero-point offenders who meet certain criteria. It provides two 
options for establishing the criteria.
    Option 1 would make the adjustment applicable to zero-point 
offenders with no prior convictions. It would provide a [1][2]-level 
decrease if the defendant meets all of the following criteria: (1) the 
defendant did not receive any criminal history points from Chapter 
Four, Part A, and had no prior convictions or other comparable judicial 
dispositions of any kind; (2) the defendant did not use violence or 
credible threats of violence or possess a firearm or other dangerous 
weapon (or induce another participant to do so) in connection with the 
offense; (3) the offense did not result in death or serious bodily 
injury; (4) the defendant's acts or omissions did not result in 
substantial financial hardship to [one or more victims][five or more 
victims][25 or more victims]; (5) the defendant was not an organizer, 
leader, manager, or supervisor of others in the offense, as determined 
under Sec.  3B1.1 (Aggravating Role), and was not engaged in a 
continuing criminal enterprise, as defined in 21 U.S.C. 848; and (6) 
[the defendant is not determined to be a

[[Page 7220]]

repeat and dangerous sex offender against minors under Sec.  4B1.5 
(Repeat and Dangerous Sex Offender Against Minors)][the instant offense 
of conviction is not a covered sex crime]. Under Option 1, 
approximately 10,500 offenders sentenced in fiscal year 2021 would have 
been eligible under Sec.  4C1.1 depending on the exclusionary criteria.
    Option 2 would make the adjustment applicable to all offenders who 
had no countable convictions (i.e., offenders who received zero 
criminal history points based upon the criminal history rules in 
Chapter Four). It would provide a [1 level][2 levels] decrease if the 
defendant meets all of the following criteria: (1) the defendant did 
not receive any criminal history points from Chapter Four, Part A; (2) 
the defendant did not use violence or credible threats of violence or 
possess a firearm or other dangerous weapon (or induce another 
participant to do so) in connection with the offense; (3) the offense 
did not result in death or serious bodily injury; (4) the defendant's 
acts or omissions did not result in substantial financial hardship to 
[one or more victims][five or more victims][25 or more victims]; (5) 
the defendant was not an organizer, leader, manager, or supervisor of 
others in the offense, as determined under Sec.  3B1.1 (Aggravating 
Role), and was not engaged in a continuing criminal enterprise, as 
defined in 21 U.S.C. 848; and (6) [the defendant is not determined to 
be a repeat and dangerous sex offender against minors under Sec.  4B1.5 
(Repeat and Dangerous Sex Offender Against Minors)][the instant offense 
of conviction is not a covered sex crime]. Option 2 also provides for 
an upward departure that would be applicable if the adjustment under 
new Sec.  4C1.1 substantially underrepresents the seriousness of the 
defendant's criminal history. Under Option 2, approximately 13,500 
offenders sentenced in fiscal year 2021 would have been eligible under 
Sec.  4C1.1 depending on the exclusionary criteria.
    Both options include a subsection (c) that provides definitions and 
additional considerations for purposes of applying the guideline.
    Part B of the proposed amendment would also amend the Commentary to 
Sec.  5C1.1 (Imposition of a Term of Imprisonment) as part of the 
Commission's implementation of 28 U.S.C. 994(j). Section 994(j) 
directed the Commission to ensure that the guidelines reflect the 
general appropriateness of imposing a sentence other than imprisonment 
in cases in which the defendant is a first offender who has not been 
convicted of a crime of violence or an otherwise serious offense. Part 
B of the proposed amendment would address the alternatives to 
incarceration available to ``zero-point'' offenders by revising the 
application note in Sec.  5C1.1 that addresses ``nonviolent first 
offenders'' to focus on ``zero-point'' offenders. Two new provisions 
would be added. New Application Note 4(A) would provide that if the 
defendant received an adjustment under new Sec.  4C1.1 and the 
defendant's applicable guideline range is in Zone A or B of the 
Sentencing Table, a sentence other than a sentence of imprisonment, in 
accordance with subsection (b) or (c)(3), is generally appropriate. New 
Application Note 4(B) would provide that if the defendant received an 
adjustment under new Sec.  4C1.1, the defendant's applicable guideline 
range is in Zone C or D of the Sentencing Table, and the defendant's 
instant offense of conviction is not an otherwise serious offense, a 
departure to a sentence other than a sentence of imprisonment [may be 
appropriate][is generally appropriate]. Of the approximately 10,500 
offenders who received zero criminal history points and had no prior 
convictions in fiscal year 2021 who would be eligible under Sec.  4C1.1 
under Option 1, about one-quarter were in Zones A and B, about ten 
percent were in Zone C, and over 60 percent were in Zone D. Of the 
approximately 13,500 offenders who received zero criminal history 
points in fiscal year 2021 who would be eligible under Sec.  4C1.1 
under Option 2, about 30 percent were in Zones A and B, ten percent 
were in Zone C, and about 60 percent were in Zone D.
    In addition, Part B of the proposed amendment would amend 
subsection (b)(2)(A) of Sec.  4A1.3 (Departures Based on Inadequacy of 
Criminal History Category (Policy Statement)) to provide that a 
departure below the lower limit of the applicable guideline range for 
Criminal History Category I is prohibited, ``unless otherwise 
specified.'' Part B of the proposed amendment would also amend Chapter 
One, Part A, Subpart 1(4)(d) (Probation and Split Sentences) to provide 
an explanatory note addressing amendments to the Guidelines Manual 
related to the implementation of 28 U.S.C. 994(j), first offenders, and 
``zero-point'' offenders.
    Finally, Part B of the proposed amendment provides issues for 
comment.

(C) Impact of Simple Possession of Marihuana Offenses

    While marihuana remains a Schedule I controlled substance under the 
federal Controlled Substances Act (CSA), subjecting offenders to up to 
one year in prison (and up to two or three years in prison for repeat 
offenders), many states and territories have reduced or eliminated the 
penalties for possessing small quantities of marihuana for personal 
use. Twenty-one states and territories have removed legal prohibitions, 
including criminal and civil penalties, for the possession of small 
quantities for recreational use. An additional 14 states and 
territories have lowered the punishment for possession of small 
quantities for recreational use from criminal penalties (such as 
imprisonment) to solely civil penalties (such as a fine). At the end of 
fiscal year 2021, possession of marihuana remained illegal for all 
purposes only in 12 states and territories.
    The Commission recently published a report on the impact of simple 
possession of marihuana offenses on sentencing. See U.S. Sent'g Comm'n, 
Weighing the Impact of Simple Possession of Marijuana: Trends and 
Sentencing in the Federal System (2023), available at https://www.ussc.gov/research/research-reports/weighing-impact-simple-possession-marijuana.
    The key findings from the report include--
     In fiscal year 2021, 4,405 federal offenders (8.0%) 
received criminal history points under the federal sentencing 
guidelines for prior marihuana possession sentences. Most (79.3%) of 
the prior sentences were for less than 60 days in prison, including 
non-custodial sentences. Furthermore, ten percent (10.2%) of these 
4,405 offenders had no other criminal history points.
     The criminal history points for prior marihuana possession 
sentences resulted in a higher Criminal History Category for 40 percent 
(40.1%) of the 4,405 offenders (1,765).
    Part C of the proposed amendment would amend the Commentary to 
Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)) to include sentences resulting from 
possession of marihuana offenses as an example of when a downward 
departure from the defendant's criminal history may be warranted. 
Specifically, Part C of the proposed amendment would provide that a 
downward departure may be warranted if the defendant received criminal 
history points from a sentence for possession of marihuana for personal 
use, without an intent to sell or distribute it to another person.
    Issues for comment are provided.

[[Page 7221]]

(A) Status Points Under Sec.  4A1.1

Proposed Amendment
    [Option 1 (Departure Provision for Status Points):
    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended in Note 4 by adding at the end the following new paragraph:
    ``There may be cases in which adding points under Sec.  4A1.1(d) 
results in a Criminal History Category that substantially 
overrepresents the seriousness of the defendant's criminal history. In 
such a case, a downward departure may be warranted in accordance with 
Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category).''.]
    [Option 2 (Reducing Status Points):
    Section 4A1.1(d) is amended by striking ``2 points'' and inserting 
``1 point''.
    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended in Note 4 by striking ``Two points are added'' and inserting 
``One point is added'', and by adding at the end the following new 
paragraph:
    ``There may be cases in which adding a point under Sec.  4A1.1(d) 
results in a Criminal History Category that substantially 
overrepresents or underrepresents the seriousness of the defendant's 
criminal history. In such a case, a departure may be warranted in 
accordance with Sec.  4A1.3 (Departures Based on Inadequacy of Criminal 
History Category).''.
    The Commentary to Sec.  4A1.1 captioned ``Background'' is amended 
by striking ``Section 4A1.1(d) adds two points'' and inserting 
``Section 4A1.1(d) adds one point''.]
    [Option 3 (Eliminating Status Points):
    Section 4A.1.1 is amended--
    by striking subsection (d) as follows:
    ``(d) Add 2 points if the defendant committed the instant offense 
while under any criminal justice sentence, including probation, parole, 
supervised release, imprisonment, work release, or escape status.'';
    and by redesignating subsection (e) as subsection (d).
    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. Sec.  4A1.1(d). Two points are added if the defendant 
committed any part of the instant offense (i.e., any relevant conduct) 
while under any criminal justice sentence, including probation, parole, 
supervised release, imprisonment, work release, or escape status. 
Failure to report for service of a sentence of imprisonment is to be 
treated as an escape from such sentence. See Sec.  4A1.2(n). For the 
purposes of this subsection, a ``criminal justice sentence'' means a 
sentence countable under Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History) having a custodial or supervisory 
component, although active supervision is not required for this 
subsection to apply. For example, a term of unsupervised probation 
would be included; but a sentence to pay a fine, by itself, would not 
be included. A defendant who commits the instant offense while a 
violation warrant from a prior sentence is outstanding (e.g., a 
probation, parole, or supervised release violation warrant) shall be 
deemed to be under a criminal justice sentence for the purposes of this 
provision if that sentence is otherwise countable, even if that 
sentence would have expired absent such warrant. See Sec.  4A1.2(m).'';
    by redesignating Note 5 as Note 4;
    and in Note 4 (as so redesignated) by striking ``Sec.  4A1.1(e)'' 
each place such term appears and inserting ``Sec.  4A.1.1(d)'', and by 
striking ``Sec.  4A1.2(p)'' and inserting ``Sec.  4A1.2(n)''.
    The Commentary to Sec.  4A1.1 captioned ``Background'' is amended 
by striking the last paragraph as follows:
    ``Section 4A1.1(d) adds two points if the defendant was under a 
criminal justice sentence during any part of the instant offense.''.
    The Commentary to Sec.  2P1.1 captioned ``Application Notes'' is 
amended in Note 5 by striking ``and Sec.  4A1.1(d) (custody status)''.
    Section 4A1.2 is amended--
    in subsection (a)(2) by striking ``Sec.  4A1.1(e)'' and inserting 
``Sec.  4A1.1(d)'';
    in subsection (l) by striking ``Sec.  4A1.1(a), (b), (c), (d), and 
(e)'' and inserting ``Sec.  4A1.1(a), (b), (c), and (d)'';
    by striking subsections (m) and (n) as follows:
    ``(m) Effect of a Violation Warrant
    For the purposes of Sec.  4A1.1(d), a defendant who commits the 
instant offense while a violation warrant from a prior sentence is 
outstanding (e.g., a probation, parole, or supervised release violation 
warrant) shall be deemed to be under a criminal justice sentence if 
that sentence is otherwise countable, even if that sentence would have 
expired absent such warrant.
    (n) Failure to Report for Service of Sentence of Imprisonment
    For the purposes of Sec.  4A1.1(d), failure to report for service 
of a sentence of imprisonment shall be treated as an escape from such 
sentence.'';
    by redesignation subsections (o) and (p) as subsections (m) and 
(n), respectively;
    and in subsection (n) (as so redesignated) by striking ``Sec.  
4A1.1(e)'' and inserting ``Sec.  4A1.1(d)''.
    The Commentary to Sec.  4A1.3 captioned ``Application Notes'' is 
amended in Note 2(A) by adding at the end the following new 
subparagraph:
    ``(v) The defendant committed the instant offense (i.e., any 
relevant conduct to the instant offense under Sec.  1B1.3 (Relevant 
Conduct)) while under any criminal justice sentence having a custodial 
or supervisory component (including probation, parole, supervised 
release, imprisonment, work release, or escape status).''.
Issues for Comment
    1. Option 3 of Part A of the proposed amendment would eliminate the 
``status points'' provided in subsection (d) of Sec.  4A1.1 (Criminal 
History Category). Instead of eliminating ``status points'' altogether, 
should the Commission eliminate ``status points'' related to certain 
categories of prior offenses, but not others? For example, should 
``status points'' continue to apply if the defendant was under a 
criminal justice sentence resulting from a violent prior offense? 
Should ``status points'' continue to apply if the defendant was 
recently placed under a criminal justice sentence involving a custodial 
or supervisory component?
    2. Option 3 of Part A of the proposed amendment would amend 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 an upward departure from the defendant's criminal 
history may be warranted. Instead of a departure provision, should the 
Commission account in some other way for the ``custody status'' of the 
defendant during the commission of the instant offense? If so, how 
should the Commission account for such ``status''?

(B) Zero Point Offenders

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

``PART C--ADJUSTMENT FOR CERTAIN ZERO-POINT OFFENDERS
    Sec.  4C1.1. Adjustment for Certain Zero-Point Offenders

    [Option 1 (Zero-Point Offenders with No Prior Convictions):
    (a) Adjustment.--If the defendant meets all of the following 
criteria:
    (1) the defendant did not receive any criminal history points from 
Chapter Four, Part A, and had no prior convictions or other comparable 
judicial dispositions of any kind;

[[Page 7222]]

    (2) the defendant did not use violence or credible threats of 
violence or possess a firearm or other dangerous weapon (or induce 
another participant to do so) in connection with the offense;
    (3) the offense did not result in death or serious bodily injury;
    (4) the defendant's acts or omissions did not result in substantial 
financial hardship to [one or more victims][five or more victims][25 or 
more victims];
    (5) the defendant was not an organizer, leader, manager, or 
supervisor of others in the offense, as determined under Sec.  3B1.1 
(Aggravating Role), and was not engaged in a continuing criminal 
enterprise, as defined in 21 U.S.C. 848; and
    (6) [the defendant is not determined to be a repeat and dangerous 
sex offender against minors under Sec.  4B1.5 (Repeat and Dangerous Sex 
Offender Against Minors)][the instant offense of conviction is not a 
covered sex crime];
    decrease the offense level determined under Chapters Two and Three 
by [1 level][2 levels].
    (b) Definitions And Additional Considerations.--
    (1) The phrase `comparable judicial dispositions of any kind' 
includes diversionary or deferred dispositions resulting from a finding 
or admission of guilt or a plea of nolo contendere and juvenile 
adjudications.
    (2) `Dangerous weapon,' `firearm,' `offense,' and `serious bodily 
injury' have the meaning given those terms in the Commentary to Sec.  
1B1.1 (Application Instructions).
    (3) Consistent with Sec.  1B1.3 (Relevant Conduct), the term 
`defendant' limits the accountability of the defendant to the 
defendant's own conduct and conduct that the defendant aided or 
abetted, counseled, commanded, induced, procured, or willfully caused.
    (4) In determining whether the defendant's acts or omissions 
resulted in `substantial financial hardship' to a victim, the court 
shall consider, among other things, the non-exhaustive list of factors 
provided in Application Note 4(F) of the Commentary to Sec.  2B1.1 
(Theft, Property Destruction, and Fraud).
    [(5) ``Covered sex crime'' means (A) an offense, perpetrated 
against a minor, under (i) chapter 109A of title 18, United States 
Code; (ii) chapter 110 of title 18, not including trafficking in, 
receipt of, or possession of, child pornography, or a recordkeeping 
offense; (iii) chapter 117 of title 18, not including transmitting 
information about a minor or filing a factual statement about an alien 
individual; or (iv) 18 U.S.C. 1591; or (B) an attempt or a conspiracy 
to commit any offense described in subdivisions (A)(i) through (iv) of 
this definition.]''.]
    [Option 2 (Zero-Point Offenders with No Countable Convictions):
    (a) Adjustment.--If the defendant meets all of the following 
criteria:
    (1) the defendant did not receive any criminal history points from 
Chapter Four, Part A;
    (2) the defendant did not use violence or credible threats of 
violence or possess a firearm or other dangerous weapon (or induce 
another participant to do so) in connection with the offense;
    (3) the offense did not result in death or serious bodily injury;
    (4) the defendant's acts or omissions did not result in substantial 
financial hardship to [one or more victims][five or more victims][25 or 
more victims];
    (5) the defendant was not an organizer, leader, manager, or 
supervisor of others in the offense, as determined under Sec.  3B1.1 
(Aggravating Role), and was not engaged in a continuing criminal 
enterprise, as defined in 21 U.S.C. 848; and
    (6) [the defendant is not determined to be a repeat and dangerous 
sex offender against minors under Sec.  4B1.5 (Repeat and Dangerous Sex 
Offender Against Minors)][the instant offense of conviction is not a 
covered sex crime];
    decrease the offense level determined under Chapters Two and Three 
by [1 level][2 levels].
    (b) Definitions And Additional Considerations.--
    (1) `Dangerous weapon,' `firearm,' `offense,' and `serious bodily 
injury' have the meaning given those terms in the Commentary to Sec.  
1B1.1 (Application Instructions).
    (2) Consistent with Sec.  1B1.3 (Relevant Conduct), the term 
`defendant' limits the accountability of the defendant to the 
defendant's own conduct and conduct that the defendant aided or 
abetted, counseled, commanded, induced, procured, or willfully caused.
    (3) In determining whether the defendant's acts or omissions 
resulted in `substantial financial hardship' to a victim, the court 
shall consider, among other things, the non-exhaustive list of factors 
provided in Application Note 4(F) of the Commentary to Sec.  2B1.1 
(Theft, Property Destruction, and Fraud).
    [(4) `Covered sex crime' means (A) an offense, perpetrated against 
a minor, under (i) chapter 109A of title 18, United States Code; (ii) 
chapter 110 of title 18, not including trafficking in, receipt of, or 
possession of, child pornography, or a recordkeeping offense; (iii) 
chapter 117 of title 18, not including transmitting information about a 
minor or filing a factual statement about an alien individual; or (iv) 
18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any offense 
described in subdivisions (A)(i) through (iv) of this definition.]
Commentary
    Application Notes:
    1. Upward Departure.--An upward departure may be warranted if an 
adjustment under this guideline substantially underrepresents the 
seriousness of the defendant's criminal history. For example, an upward 
departure may be warranted if the defendant has a prior conviction or 
other comparable judicial disposition for an offense that involved 
violence or credible threats of violence.''.]
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended--
    by inserting at the beginning of Note 1 the following new heading: 
``Application of Subsection (a).--'';
    by inserting at the beginning of Note 2 the following new heading: 
``Application of Subsection (b).--'';
    by inserting at the beginning of Note 3 the following new heading: 
``Application of Subsection (c).--'';
    in Note 4 by striking the following:
    ``If the defendant is a nonviolent first offender and the 
applicable guideline range is in Zone A or B of the Sentencing Table, 
the court should consider imposing a sentence other than a sentence of 
imprisonment, in accordance with subsection (b) or (c)(3). See 28 
U.S.C. 994(j). For purposes of this application note, a `nonviolent 
first offender' is a defendant who has no prior convictions or other 
comparable judicial dispositions of any kind and who did not use 
violence or credible threats of violence or possess a firearm or other 
dangerous weapon in connection with the offense of conviction. The 
phrase ``comparable judicial dispositions of any kind'' includes 
diversionary or deferred dispositions resulting from a finding or 
admission of guilt or a plea of nolo contendere and juvenile 
adjudications.'',
    and inserting the following:
    ``Zero-Point Offenders.--
    (A) Zero-Point Offenders in Zones A and B of the Sentencing 
Table.--If the defendant received an adjustment under Sec.  4C1.1 
(Adjustment for Certain Zero-Point Offenders) and the defendant's 
applicable guideline range is in Zone A or B of the Sentencing Table, a 
sentence other than a sentence of imprisonment, in accordance with 
subsection (b) or (c)(3), is generally appropriate. See 28 U.S.C. 
994(j).
    (B) Zero-Point Offenders in Zones C and D of the Sentencing 
Table.--If the

[[Page 7223]]

defendant received an adjustment under Sec.  4C1.1 (Adjustment for 
Certain Zero-Point Offenders), the defendant's applicable guideline 
range is in Zone C or D of the Sentencing Table, and the defendant's 
instant offense of conviction is not an otherwise serious offense, a 
departure to a sentence other than a sentence of imprisonment [may be 
appropriate][is generally appropriate]. See 28 U.S.C. 994(j).'';
    by inserting at the beginning of Note 5 the following new heading: 
``Application of Subsection (d).--'';
    by inserting at the beginning of Note 6 the following new heading: 
``Application of Subsection (e).--'';
    by inserting at the beginning of Note 7 the following new heading: 
``Departures Based on Specific Treatment Purpose.--'';
    by inserting at the beginning of Note 8 the following new heading: 
``Use of Substitutes for Imprisonment.--'';
    by inserting at the beginning of Note 9 the following new heading: 
``Residential Treatment Program.--'';
    and by inserting at the beginning of Note 10 the following new 
heading: ``Application of Subsection (f).--''.
    Section 4A1.3(b)(2)(A) is amended by striking ``A departure'' and 
inserting ``Unless otherwise specified, a departure''.
    The Commentary to Sec.  4A1.3 captioned ``Application Notes'' is 
amended in Note 3 by striking ``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 ``unless 
otherwise specified''.
    Chapter One, Part A is amended in Subpart 1(4)(d) (Probation and 
Split Sentences)--
    by adding an asterisk after ``community confinement or home 
detention.'';
    by adding a second asterisk after ``through departures.*'';
    and by striking the following:
    ``*Note: Although the Commission had not addressed ``single acts of 
aberrant behavior'' at the time the Introduction to the Guidelines 
Manual originally was written, it subsequently addressed the issue in 
Amendment 603, effective November 1, 2000. (See USSG App. C, amendment 
603.)'',
    and inserting the following:
    ``*Note: The Commission expanded Zones B and C of the Sentencing 
Table in 2010 to provide a greater range of sentencing options to 
courts with respect to certain offenders. (See USSG App. C, amendment 
738.) In 2018, the Commission added a new application note to the 
Commentary to Sec.  5C1.1 (Imposition of a Term of Imprisonment), 
stating that if a defendant is a `nonviolent first offender and the 
applicable guideline range is in Zone A or B of the Sentencing Table, 
the court should consider imposing a sentence other than a sentence of 
imprisonment.' (See USSG App. C, amendment 801.) In [2023], the 
Commission added a new Chapter Four guideline, at Sec.  4C1.1 
(Adjustment for Certain Zero-Point Offenders), providing a decrease of 
[1 level][2 levels] from the offense level determined under Chapters 
Two and Three for `zero-point' offenders who meet certain criteria. In 
addition, the Commission further amended the Commentary to Sec.  5C1.1 
to address the alternatives to incarceration available to `zero-point' 
offenders by revising the application note in Sec.  5C1.1 that 
addressed `nonviolent first offenders' to focus on `zero-point' 
offenders. (See USSG App. C, amendment [__].)
    ** Note: Although the Commission had not addressed `single acts of 
aberrant behavior' at the time the Introduction to the Guidelines 
Manual originally was written, it subsequently addressed the issue in 
Amendment 603, effective November 1, 2000. (See USSG App. C, amendment 
603.)''.
Issues for Comment
    1. Part B of the proposed amendment would set forth a new Chapter 
Four guideline, at Sec.  4C1.1 (Adjustment for Certain Zero-Point 
Offenders), that provides a decrease of [1 level][2 levels] from the 
offense level determined under Chapters Two and Three if the defendant 
meets certain criteria. It provides two options: one option for zero-
point offenders with no prior convictions and another option for zero-
point offenders with no countable convictions. The Commission seeks 
comment on which option is preferable, or whether there is an 
alternative approach that the Commission should consider. For example, 
if the Commission decides to exclude offenders with prior convictions, 
should the Commission consider a third option that nevertheless makes 
the new adjustment available to offenders with prior convictions that 
were not counted under a specific provision of Sec.  4A1.2 (Definitions 
and Instructions for Computing Criminal History)? If so, what type of 
prior convictions that did not receive criminal history points should 
not be excluded? For example, should the Commission allow the new 
adjustment to apply to offenders with prior convictions for 
misdemeanors and petty offenses that were not counted under Sec.  
4A1.2(c)? Should the Commission instead exclude offenders with certain 
prior convictions that were not otherwise counted under Sec.  4A1.2? 
For example, should the Commission exclude offenders with prior 
convictions for sex offenses or violent offenses that were not counted 
for criminal history purposes?
    If the Commission were to promulgate an option of Sec.  4C1.1 that 
excludes offenders with prior convictions not countable under Chapter 
Four, Part A (Criminal History), are there any practical issues or 
challenges that such an approach would present due to the availability 
of records documenting such convictions? If so, what are these 
practical issues or challenges?
    2. Part B of the proposed amendment provides that the [1 level][2 
levels] decrease under the new guideline applies if the defendant meets 
all of the criteria set forth in the two options. Should the Commission 
incorporate additional or different exclusionary criteria into either 
of the options set forth in Part B of the proposed amendment? Should 
the Commission change or remove any of the exclusionary criteria set 
forth in either of the options thereby making the adjustment available 
to a broader group of defendants?
    3. If the Commission were to promulgate one of the proposed 
options, what conforming changes, if any, should the Commission make to 
other provisions of the Guidelines Manual?
    4. Part B of the proposed amendment would also amend the Commentary 
to Sec.  5C1.1 (Imposition of a Term of Imprisonment) to address the 
alternatives to incarceration available to ``zero-point'' offenders. 
The Commission seeks comment on whether it should provide additional 
guidance about how to apply this new departure provision. If so, what 
additional guidance should the Commission provide? For example, should 
the Commission provide guidance on how courts should determine whether 
the instant offense of conviction is ``not an otherwise serious 
offense''?

(C) Impact of Simple Possession of Marihuana Offenses

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

[[Page 7224]]

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.'',
    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 received criminal history points from a sentence 
for possession of marihuana for personal use, without an intent to sell 
or distribute it to another person.
    (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. Part C of the proposed amendment provides for a possible 
downward departure if the defendant received criminal history points 
from a sentence for possession of marihuana for personal use, without 
an intent to sell or distribute it to another person. The Commission 
seeks comment on whether it should provide additional guidance for 
purposes of determining whether a downward departure is warranted in 
such cases. If so, what additional guidance should the Commission 
provide?
    2. The Commission also seeks comment on whether there is an 
alternative approach it should consider for addressing sentences for 
possession of marihuana. For example, instead of a departure, should 
the Commission exclude such sentences from the criminal history score 
calculation if the offense is no longer subject to criminal penalties 
in the jurisdiction in which the defendant was convicted at the time of 
sentencing for the instant offense? Alternatively, should the 
Commission exclude all sentences for possession of marihuana offenses 
from the criminal history score calculation, regardless of whether such 
offenses are punishable by a term of imprisonment or subject to 
criminal penalties in the jurisdiction in which the defendant was 
convicted at the time of sentencing for the instant offense?

8. Acquitted Conduct

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's consideration of possible amendments to the 
Guidelines Manual to prohibit the use of acquitted conduct in applying 
the guidelines. See U.S. Sent'g Comm'n, ``Notice of Final Priorities,'' 
87 FR 67756 (Nov. 9, 2022).
    Acquitted conduct is not expressly addressed in the Guidelines 
Manual, except for a reference in the parenthetical summary of the 
holding in United States v. Watts, 519 U.S. 148 (1997). See USSG Sec.  
6A1.3, Comment. However, consistent with the Supreme Court's holding in 
Watts, consideration of acquitted conduct is permitted under the 
guidelines through the operation of Sec.  1B1.3 (Relevant Conduct 
(Factors that Determine the Guideline Range)), in conjunction with 
Sec.  1B1.4 (Information to be Used in Imposing Sentence) and Sec.  
6A1.3 (Resolution of Disputed Factors (Policy Statement)).
    Section 1B1.3 sets forth the principles and limits of sentencing 
accountability for purposes of determining a defendant's guideline 
range, a concept referred to as ``relevant conduct.'' Relevant conduct 
impacts nearly every aspect of guidelines application, including the 
determination of: base offense levels where more than one level is 
provided, specific offense characteristics, and any cross references in 
Chapter Two (Offense Conduct); any adjustments in Chapter Three 
(Adjustment); the criminal history calculations in Chapter Four, Part A 
(Criminal History); and departures and adjustments in Chapter Five 
(Determining the Sentence).
    Specifically, Sec.  1B1.3(a)(1) provides that relevant conduct 
comprises ``all acts and omissions . . . that occurred during the 
commission of the offense of conviction, in preparation for that 
offense, or in the course of attempting to avoid detection or 
responsibility for that offense.'' Relevant conduct includes, in 
subsection (a)(1)(A), ``all acts and omissions committed, aided, 
abetted, counseled, commanded, induced, procured, or willfully caused 
by the defendant,'' and, in subsection (a)(1)(B), all acts and 
omissions of others ``in the case of a jointly undertaken criminal 
activity,'' that ``occurred during the commission of the offense of 
conviction, in preparation for that offense, or in the course of 
attempting to avoid detection or responsibility for that offense.'' See 
USSG Sec.  1B1.3(a)(1).
    Relevant conduct also includes, for some offense types, ``all acts 
and omissions described in subdivisions (1)(A) and (1)(B) above that 
were part of the same course of conduct or common scheme or plan as the 
offense of conviction,'' ``all harm that resulted from the acts and 
omissions specified in subsections (a)(1) and (a)(2) above, and all 
harm that was the object of such acts and omissions,'' and ``any other 
information specified in the applicable guideline.'' See USSG Sec.  
1B1.3(a)(2)-(a)(4). The background commentary to Sec.  1B1.3 explains 
that ``[c]onduct that is not formally charged or is not an element of 
the offense of conviction may enter into the determination of the 
applicable guideline sentencing range.''
    The Guidelines Manual also includes Chapter Six, Part A (Sentencing 
Procedures) addressing sentencing procedures that are applicable in all 
cases. Specifically, Sec.  6A1.3 provides for resolution of any 
reasonably disputed factors important to the sentencing determination. 
Consistent with 18 U.S.C. 3661, Sec.  6A1.3(a) provides, in pertinent 
part, that ``[i]n resolving any dispute concerning a factor important 
to sentencing determination, the court may consider relevant 
information without regard to its admissibility under the rules of 
evidence applicable at trial, provided that the information has 
sufficient indicia of reliability to support its probable accuracy.'' 
The Commentary to Sec.  6A1.3 instructs that ``[i]n determining the 
relevant facts, sentencing judges are not restricted to information 
that would be admissible at trial'' and that ``[a]ny information may be 
considered'' so long as it has sufficient indicia of reliability to 
support its probable accuracy. The Commentary cites to 18 U.S.C. 3661 
and Supreme Court case law upholding the sentencing court's 
unrestricted discretion in considering any information at sentencing, 
so long as it is proved by a preponderance of the evidence. Consistent 
with the Supreme Court case law, the Commentary also provides that 
``[t]he Commission believes that use of a preponderance of the evidence 
standard is appropriate to meet due process requirements and policy 
concerns in resolving disputes regarding application of the guidelines 
to the facts of a case.''
    In fiscal year 2021, nearly all offenders (56,324; 98.3%) were 
convicted through a guilty plea. The remaining 963 offenders (1.7% of 
all offenders) were convicted and sentenced after a trial, and of those 
offenders, 157 offenders (0.3% of all offenders) were acquitted of at 
least one offense.

[[Page 7225]]

    The proposed amendment would amend Sec.  1B1.3 to add a new 
subsection (c) providing that acquitted conduct shall not be considered 
relevant conduct for purposes of determining the guideline range unless 
the conduct was admitted by the defendant during a guilty plea colloquy 
or was found by the trier of fact beyond a reasonable doubt to 
establish, in whole or in part, the instant offense of conviction. The 
new provision would define ``acquitted conduct'' as conduct underlying 
a charge of which the defendant has been acquitted by the trier of fact 
or upon a motion of acquittal pursuant to Rule 29 of the Federal Rules 
of Criminal Procedure or an analogous motion under the applicable law 
of a state, local, or tribal jurisdiction.
    The proposed amendment would also amend the Commentary to Sec.  
6A1.3 (Resolution of Disputed Factors (Policy Statement)) to make 
conforming revisions addressing the use of acquitted conduct for 
purposes of determining the guideline range.
    Two issues for comment are also provided.
Proposed Amendment
    Section 1B1.3 is amended by adding at the end the following new 
subsection (c):
    ``(c) Acquitted Conduct.--
    (1) Limitation.--Acquitted conduct shall not be considered relevant 
conduct for purposes of determining the guideline range unless such 
conduct--
    (A) was admitted by the defendant during a guilty plea colloquy; or
    (B) was found by the trier of fact beyond a reasonable doubt;
    to establish, in whole or in part, the instant offense of 
conviction.
    (2) Definition of Acquitted Conduct.--For purposes of this 
guideline, `acquitted conduct' means conduct (i.e., any acts or 
omission) underlying a charge of which the defendant has been acquitted 
by the trier of fact or upon a motion of acquittal pursuant to Rule 29 
of the Federal Rules of Criminal Procedure or an analogous motion under 
the applicable law of a state, local, or tribal jurisdiction.''.
    The Commentary to Sec.  6A1.3 is amended--
    by striking ``see also United States v. Watts, 519 U.S. 148, 154 
(1997) (holding that lower evidentiary standard at sentencing permits 
sentencing court's consideration of acquitted conduct); Witte v. United 
States, 515 U.S. 389, 399-401 (1995) (noting that sentencing courts 
have traditionally considered wide range of information without the 
procedural protections of a criminal trial, including information 
concerning criminal conduct that may be the subject of a subsequent 
prosecution);'' and inserting ``Witte v. United States, 515 U.S. 389, 
397-401 (1995) (noting that sentencing courts have traditionally 
considered a wide range of information without the procedural 
protections of a criminal trial, including information concerning 
uncharged criminal conduct, in sentencing a defendant within the range 
authorized by statute);''
    by striking ``Watts, 519 U.S. at 157'' and inserting ``Witte, 515 
U.S. at 399-401''
    and by inserting at the end of the paragraph that begins ``The 
Commission believes that use of a preponderance of the evidence 
standard'' the following: ``Acquitted conduct, however, generally shall 
not be considered relevant conduct for purposes of determining the 
guideline range. See subsection (c) of Sec.  1B1.3 (Relevant Conduct). 
Acquitted conduct may be considered in determining the sentence to 
impose within the guideline range, or whether a departure from the 
guidelines is warranted. See Sec.  1B1.4 (Information to be Used in 
Imposing a Sentence (Selecting a Point Within the Guideline Range or 
Departing from the Guidelines)).''.
Issues for Comment
    1. The proposed amendment is intended to generally prohibit the use 
of acquitted conduct for purposes of determining the guideline range, 
except when such conduct was admitted by the defendant during a guilty 
plea colloquy or was found by the trier of fact beyond a reasonable 
doubt to establish the instant offense of conviction. However, conduct 
underlying an acquitted charge may overlap with conduct found by the 
trier of fact beyond a reasonable doubt to establish the instant 
offense of conviction. Does this proposed amendment allow a court to 
consider such ``overlapping'' conduct for purposes of determining the 
guideline range? Should the Commission provide additional guidance to 
address this conduct?
    2. The Commission seeks comment on whether the limitation on the 
use of acquitted conduct is too broad or too narrow. If so, how? For 
example, should the Commission account for acquittals for reasons such 
as jurisdiction, venue, or statute of limitations, that are otherwise 
unrelated to the substantive evidence?

9. Sexual Abuse Offenses

    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 mutually 
exclusive. Part A of the proposed amendment responds to recently 
enacted legislation. See U.S. Sent'g Comm'n, ``Notice of Final 
Priorities,'' 87 FR 67756 (Nov. 9, 2022) (identifying as a priority 
``[i]mplementation of any legislation warranting Commission action''). 
Part B of the proposed amendment is a result of the Commission's 
``[c]onsideration of possible amendments to the Guidelines Manual to 
address sexual abuse or contact offenses against a victim in the 
custody, care, or supervision of, and committed by law enforcement or 
correctional personnel.'' Id.

(A) Violence Against Women Act Reauthorization Act of 2022

    Part A of the proposed amendment responds to title XII of the 
Violence Against Women Act Reauthorization Act of 2022 (``the Act''). 
The Act is part of the Consolidated Appropriations Act, 2022, Public 
Law 117-103 (2022). It created two new offenses concerning sexual 
misconduct while committing civil rights offenses and sexual abuse of 
an individual in federal custody.
    First, the Act created a new offense at 18 U.S.C. 250 (Penalties 
for civil rights offenses involving sexual misconduct). New section 
250(a) prohibits any person from engaging in, or causing another to 
engage in, sexual misconduct while committing a civil rights offense 
under chapter 13 (Civil Rights) of part I (Crimes) of title 18, United 
States Code, or an offense under section 901 of the Fair Housing Act 
(42 U.S.C. 3631). The statute does not define ``sexual misconduct,'' 
but new section 250(b) delineates different maximum statutory terms of 
imprisonment for different degrees of sexual misconduct, ranging from 
two years to any term of years or life. The maximum penalties are: (1) 
any term of years or life if the offense involved aggravated sexual 
abuse, as defined in 18 U.S.C. 2241, or sexual abuse, as defined in 18 
U.S.C. 2242, or any attempts to commit such conduct; (2) any term of 
years or life if the offense involved abusive sexual contact of a child 
who has not attained the age of 16, of the type prohibited by 18 U.S.C. 
2244(a)(5); (3) 40 years if the offense involved a sexual act, as 
defined in 18 U.S.C. 2246, without the other person's permission and 
the sexual act does not amount to sexual abuse or aggravated sexual 
abuse; (4) 10 years if the offense involved abusive sexual contact of 
the type prohibited by 18 U.S.C. 2244(a)(1) or (b) (excluding abusive 
sexual contact through the clothing), with an enhanced maximum penalty 
of 30 years if such abusive sexual contact involved a child

[[Page 7226]]

under the age of 12; (5) 3 years if the offense involved abusive sexual 
contact of the type prohibited by 18 U.S.C. 2244(a)(2), with an 
enhanced maximum penalty of 20 years if such abusive sexual contact 
involved a child under the age of 12; (6) 2 years if the offense 
involved abusive sexual contact through the clothing of the type 
prohibited by 18 U.S.C. 2244(a)(3), (a)(4), or (b), with an enhanced 
maximum penalty of 10 years if such abusive sexual conduct through the 
clothing involved a child under the age of 12.
    Second, the Act amended 18 U.S.C. 2243 and created a new offense at 
subsection (c). The new section 2243(c) prohibits an individual, while 
acting in their capacity as a federal law enforcement officer, from 
knowingly engaging in a sexual act with an individual who is under 
arrest, under supervision, in detention, or in federal custody. The 
statutory maximum term of imprisonment for the offense is 15 years, 
which is the same maximum penalty for offenses under sections 2243(a) 
(prohibiting knowingly engaging in a sexual act with a minor who had 
attained the age of twelve but not the age of sixteen and is at least 
four years younger than the person so engaging) and 2243(b) 
(prohibiting knowingly engaging in a sexual act with a ward in official 
detention (including in a federal prison or any prison, institution, or 
facility where people are held in custody by the direction of, or 
pursuant to a contract or agreement with, any federal department or 
agency) and under the custodial, supervisory, or disciplinary authority 
of the person so engaging).
    The Act also included a provision defining ``federal law 
enforcement officer'' at 18 U.S.C. 2246(7) as having the meaning given 
the term in 18 U.S.C. 115 (i.e., ``any officer, agent, or employee of 
the United States authorized by law or by a Government agency to engage 
in or supervise the prevention, detection, investigation, or 
prosecution of any violation of Federal criminal law.''). In addition, 
the Act amended 18 U.S.C. 2244 (Abusive sexual contact) to add a new 
penalty provision at subsection (a)(6) stating any person that 
knowingly engages in or causes sexual contact with or by another 
person, if doing so would violate new section 2243(c), would face a 
maximum statutory term of imprisonment of two years.
    Part A of the proposed amendment would amend Appendix A (Statutory 
Index) to reference offenses under 18 U.S.C. 250 to Sec.  2H1.1 
(Offenses Involving Individual Rights), and offenses under 18 U.S.C. 
2243(c) to Sec.  2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to 
Commit Such Acts). Part A of the proposed amendment would also amend 
the Commentary to Sec. Sec.  2A3.3 and 2H1.1 to reflect that these 
statutes are referenced to these guidelines. In addition, it would 
amend the title of Sec.  2A3.3 to add ``Criminal Sexual Abuse of an 
Individual in Federal Custody.''
    Issues for comment are also provided.

(B) Sexual Abuse Offenses Committed by Law Enforcement and Correctional 
Personnel

    Part B of the proposed amendment addresses concerns regarding the 
increasing number of cases involving sexual abuse committed by law 
enforcement or correctional personnel against victims in their custody, 
care, or supervision. In its annual letter to the Commission, the 
Department of Justice urged the Commission to consider amending the 
Guidelines Manual to better account for such sexual abuse offenses, 
including offenses under 18 U.S.C. 2243(b) and the offense conduct 
covered by the new statute at 18 U.S.C. 2243(c) (discussed in Part A of 
the proposed amendment). According to the Department of Justice, the 
provisions of the guideline applicable to such offenses, Sec.  2A3.3 
(Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts), do 
not sufficiently account for the severity of the conduct in such 
offenses, nor provide adequate penalties in accordance with the 
statutory maximum terms of imprisonment provided for these offenses.
    Part B of the proposed amendment would amend Sec.  2A3.3 in several 
ways to address these concerns. First, it would increase the base 
offense level of the guideline from 14 to [22]. Second, Part B of the 
proposed amendment would address the presence of aggravating factors in 
sexual abuse offenses, such as causing serious bodily injury and the 
use or threat of force, in the same way Sec.  2A3.2 (Criminal Sexual 
Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or 
Attempt to Commit Such Acts) currently does, by providing a cross 
reference to Sec.  2A3.1 (Criminal Sexual Abuse; Attempt to Commit 
Criminal Sexual Abuse) for cases where the offense involved criminal 
sexual abuse or attempt to commit criminal sexual abuse (as defined in 
18 U.S.C. 2241 or Sec.  2242).
    Issues for comment are also provided.

(A) Violence Against Women Act Reauthorization Act of 2022

Proposed Amendment
    Appendix A (Statutory Index) is amended--
    by inserting before the line referenced to 18 U.S.C. 281 the 
following new line reference:

``18 U.S.C. 250 2H1.1'';

    and by inserting before the line referenced to 18 U.S.C. 2244 the 
following new line reference:

``18 U.S.C. 2243(c) 2A3.3''.

    Section 2A3.3 is amended in the heading by inserting after ``Acts'' 
the following: ``; Criminal Sexual Abuse of an Individual in Federal 
Custody''.
    The Commentary to Sec.  2A3.3 captioned ``Statutory Provision'' is 
amended by inserting after ``Sec.  2243(b)'' the following: ``, 
2243(c)''.
    The Commentary to Sec.  2H1.1 captioned ``Statutory Provisions'' is 
amended by striking ``246, 247, 248, 249'' and inserting ``246-250''.
Issues for Comment
    1. In response to the Violence Against Women Act Reauthorization 
Act of 2022, Part A of the proposed amendment would reference 18 U.S.C. 
250 to Sec.  2H1.1 (Offenses Involving Individual Rights). The 
Commission seeks comment on whether the proposed reference is 
appropriate and whether any additional changes to the guidelines are 
required to account for section 250's offense conduct. Specifically, 
should the Commission amend Sec.  2H1.1 to provide a higher or lower 
base offense level if 18 U.S.C. 250 is the offense of conviction? If 
so, what should that base offense level be and why? Should the 
Commission add specific offense characteristics to Sec.  2H1.1 in 
response to section 250? If so, what should any such specific offense 
characteristic provide and why?
    The new statute at 18 U.S.C. 250 provides different maximum 
statutory terms of imprisonment, ranging from two years to any term of 
years or life, depending on the sexual misconduct involved in the 
offense. Should the Commission amend Sec.  2H1.1 to address this range 
of penalties? If so, how should the Commission address these different 
penalties and why?
    2. In response to the Violence Against Women Act Reauthorization 
Act of 2022, Part A of the proposed amendment would reference 18 U.S.C. 
2243(c) to Sec.  2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to 
Commit Such Acts). The Commission seeks comment on whether the proposed 
reference is appropriate and whether

[[Page 7227]]

any additional changes to the guidelines are required to account for 
section 2243(c)'s offense conduct. Specifically, should the Commission 
amend Sec.  2A3.3 to provide a higher or lower base offense level if 18 
U.S.C. 2243(c) is the offense of conviction? If so, what should that 
base offense level be and why? Should the Commission add a specific 
offense characteristic to Sec.  2A3.3 in response to section 2243(c)? 
If so, what should that specific offense characteristic provide and 
why?

(B) Sexual Abuse Offenses Committed by Law Enforcement and Correctional 
Personnel

Proposed Amendment
    Section 2A3.3 is amended--
    in subsection (a) by striking ``14'' and inserting ``[22]'';
    and by inserting at the end the following new subsection (c):
    ``(c) Cross Reference
    (1) If the offense involved criminal sexual abuse or attempt to 
commit criminal sexual abuse (as defined in 18 U.S.C. 2241 or Sec.  
2242), apply Sec.  2A3.1 (Criminal Sexual Abuse; Attempt to Commit 
Criminal Sexual Abuse). If the victim had not attained the age of 12 
years, Sec.  2A3.1 shall apply, regardless of the `consent' of the 
victim.''.
Issues for Comment
    1. Part B of the proposed amendment would amend Sec.  2A3.3 
(Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts) to 
increase the base offense level of the guideline from 14 to [22]. The 
proposed base offense level of [22] for Sec.  2A3.3 would result in 
proportionate penalties with offenses sentenced under Sec.  2A3.2 
(Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years 
(Statutory Rape) or Attempt to Commit Such Acts), where, like Sec.  
2A3.3, the victim is incapable of granting consent. Specifically, Sec.  
2A3.2 provides a base offense level of 18 and a 4-level increase at 
Sec.  2A3.2(b)(1) that applies in cases where the victim was in the 
custody, care, or supervisory control of the defendant. The Commission 
seeks comment on whether the proposed base offense level for Sec.  
2A3.3 is appropriate and, if not, what should the base offense level be 
and why. Are there distinctions between sexual offenses against minors 
and sexual offenses against wards that may warrant different base 
offense levels? If so, what are those distinctions and how should they 
be accounted for in Sec.  2A3.3?
    2. Part B of the proposed amendment would also amend Sec.  2A3.3 to 
provide a cross reference to Sec.  2A3.1 (Criminal Sexual Abuse; 
Attempt to Commit Criminal Sexual Abuse) for cases where the offense 
involved criminal sexual abuse or attempt to commit criminal sexual 
abuse (as defined in 18 U.S.C. 2241 or Sec.  2242). This cross 
reference is the same as the one currently provided for in Sec.  2A3.2 
(Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years 
(Statutory Rape) or Attempt to Commit Such Acts). The Commission seeks 
comment on whether adding a cross reference to Sec.  2A3.1 in Sec.  
2A3.3 is appropriate to address the presence of aggravating factors in 
the offenses referenced to this guideline, such as causing serious 
bodily injury and the use or threat of force. If not, how should the 
Commission take into account such aggravating factors? For example, 
should the Commission add specific offense characteristics to address 
these aggravating factors?

10. Alternative-to-Incarceration Programs

    In November 2022, the Commission identified as one of its policy 
priorities a ``[m]ultiyear study of court-sponsored diversion and 
alternatives-to-incarceration programs (e.g., Pretrial Opportunity 
Program, Conviction And Sentence Alternatives (CASA) Program, Special 
Options Services (SOS) Program), including consideration of possible 
amendments to the Guidelines Manual that might be appropriate.'' U.S. 
Sent'g Comm'n, ``Notice of Final Priorities,'' 87 FR 67756 (Nov. 9, 
2022). As part of its work on this priority, the Commission is 
publishing these issues for comment on alternative-to-incarceration 
programs to inform the Commission's consideration of this policy 
priority.
Issues for Comment
    1. The Commission invites general comment on how it should approach 
any study related to this policy priority. What should be the scope, 
duration, and sources of information of such a study, and what specific 
questions should be addressed?
    The Commission further seeks comment on any relevant developments 
in recent legal or social science literature on court-sponsored 
diversion and alternatives-to-incarceration programs.
    2. The Commission invites general comment on whether the Guidelines 
Manual should be amended to address court-sponsored diversion and 
alternatives-to-incarceration programs. The Commission also seeks 
comment on whether it should consider amending the guidelines for such 
purposes during this amendment cycle, or whether it should first 
undertake further study of court-sponsored diversion and alternatives-
to-incarceration programs. In either case, how should the Commission 
amend the Guidelines Manual to address court-sponsored diversion and 
alternatives-to-incarceration programs?
    For example, should the Commission add to Chapter Five, Part K, 
Subpart 2 (Other Grounds for Departure) a new policy statement 
permitting a downward departure if the defendant successfully completed 
the necessary requirements of an alternative-to-incarceration court 
program? If so, what type of programs should be addressed by such 
departure provision? Should the Commission provide criteria for 
purposes of applying a departure provision related to alternative-to-
incarceration court programs? If so, what criteria should the 
Commission use? For example, should such a downward departure only 
apply to defendants who successfully completed the necessary 
requirements of an alternative-to-incarceration court program? In the 
alternative, should the Commission allow the departure to apply also to 
defendants who productively participated in any such program without 
fulfilling all requirements because they were administratively 
discharged from the program due to reasons beyond the defendant's 
control (e.g., health reasons, scheduling issues)?

11. Fake Pills

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's consideration of miscellaneous guidelines 
application issues. See U.S. Sent'g Comm'n, ``Notice of Final 
Priorities,'' 87 FR 67756 (Nov. 9, 2022) (identifying as a priority 
``[c]onsideration of other miscellaneous issues, including possible 
amendments to (A) section 2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) to address offenses involving 
misrepresentation or marketing of a controlled substance as another 
substance . . . .'').
    The proposed amendment responds to concerns expressed by the Drug 
Enforcement Administration (DEA) about the proliferation of ``fake 
pills'' (i.e., illicitly manufactured pills represented or marketed as 
legitimate pharmaceutical pills) containing fentanyl or fentanyl 
analogue.
    According to the DEA, these fake pills resemble legitimately 
manufactured pharmaceutical pills (such as OxyContin, Xanax, and 
Adderall) but can result in sudden death or poisoning

[[Page 7228]]

due to the unknown presence and quantities of dangerous substances, 
such as fentanyl and fentanyl analogues.
    The DEA reported that it seized over 50.6 million fentanyl-laced, 
fake prescription pills in calendar year 2022. See Drug Enforcement 
Administration, Press Release: Drug Enforcement Administration 
Announces the Seizure of Over 379 million Deadly Doses of Fentanyl in 
2022 (Dec. 20, 2022), https://www.dea.gov/press-releases/2022/12/20/drug-enforcement-administration-announces-seizure-over-379-million-deadly. DEA laboratory testing indicates that the number of fake pills 
laced with fentanyl have sharply increased in recent years and that six 
out of ten fentanyl-laced faked pills have been found to contain a 
potentially fatal dose of fentanyl. See Drug Enforcement 
Administration, Public Safety Alert: DEA Laboratory Testing Reveals 
that 6 out of 10 Fentanyl-Laced Fake Prescription Pills Now Contain a 
Potentially Lethal Dose of Fentanyl (2022), https://www.dea.gov/alert/dea-laboratory-testing-reveals-6-out-10-fentanyl-laced-fake-prescription-pills-now-contain.
    According to the Centers for Disease Control and Prevention (CDC), 
overdose deaths from synthetic opioids containing fentanyl, including 
pills purporting to be legitimate pharmaceuticals, have sharply 
increased in recent years. See Christine L. Mattson et al., Trends and 
Geographic Patterns in Drug and Synthetic Opioid Overdose Deaths--
United States, 2013-2019, 70 Morb Mortal Wkly Rep 6 (Feb. 12, 2021), 
https://www.cdc.gov/mmwr/volumes/70/wr/mm7006a4.htm.
    In order to address this issue, the DEA recommended that the 
Commission review the 4-level enhancement for knowingly distributing or 
marketing as another substance a mixture or substance containing 
fentanyl or fentanyl analogue as a different substance at subsection 
(b)(13) of Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, 
or Trafficking). Specifically, the DEA suggested that the Commission 
consider changing the mens rea requirement to expand the application of 
the enhancement to offenders who may not have known fentanyl or 
fentanyl analogue was in the substance but distributed or marketed a 
substance without regard to whether such dangerous substances could 
have been present.
    The proposed amendment would amend Sec.  2D1.1(b)(13) to add a new 
subparagraph with an alternative 2-level enhancement for cases where 
the defendant represented or marketed as a legitimately manufactured 
drug another mixture or substance containing fentanyl (N-phenyl-N-[1-
(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue, 
with reason to believe that such mixture or substance was not the 
legitimately manufactured drug. The new provision would refer to 21 
U.S.C. 321(g)(1) for purposes of defining the term ``drug.''
    An issue for comment is provided.
Proposed Amendment
    Section 2D1.1(b)(13) is amended--
    by inserting after ``defendant'' the following: ``(A)'';
    and by inserting after ``4 levels'' the following: ``; or (B) 
represented or marketed as a legitimately manufactured drug another 
mixture or substance containing fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue, with 
reason to believe that such mixture or substance was not the 
legitimately manufactured drug, increase by [2] levels. For purposes of 
subsection (b)(13)(B), the term `drug' has the meaning given that term 
in 21 U.S.C. 321(g)(1)''.
Issue for Comment
    1. The proposed amendment would amend subsection (b)(13) of Sec.  
2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to add an alternative 2-level enhancement applicable if the 
defendant represented or marketed as a legitimately manufactured drug 
another mixture or substance containing fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue, with 
reason to believe that such mixture or substance was not the 
legitimately manufactured drug. The Commission seeks comment on whether 
the proposed alternative enhancement at Sec.  2D1.1(b)(13)(B) is 
appropriate to address the concerns raised by the Drug Enforcement 
Administration. If not, is there an alternative approach that the 
Commission should consider? Should the Commission expand the scope of 
Sec.  2D1.1(b)(13)(B) to include other synthetic opioids? If so, what 
other synthetic opioids should be included?
    The Commission also seeks comment on whether the mens rea 
requirement proposed for Sec.  2D1.1(b)(13)(B) is appropriate. Should 
the Commission provide a different mens rea requirement for the new 
provision? If so, what mens rea requirement should the Commission 
provide? Should the Commission instead make Sec.  2D1.1(b)(13)(B) an 
offense-based enhancement as opposed to exclusively defendant-based?

12. Miscellaneous

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's consideration of miscellaneous guidelines 
application issues. See U.S. Sent'g Comm'n, ``Notice of Final 
Priorities,'' 87 FR 67756 (Nov. 9, 2022) (identifying as a priority 
``[c]onsideration of other miscellaneous issues, including possible 
amendments to . . . (B) section 3D1.2 (Grouping of Closely Related 
Counts) to address the interaction between 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) 
and section 3D1.2(d); and (C) section 5F1.7 (Shock Incarceration 
Program (Policy Statement)) to reflect that the Bureau of Prisons no 
longer operates a shock incarceration program.''). 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 mutually exclusive.
    Part A responds to a guideline application issue concerning the 
interaction of Sec.  2G1.3 and Sec.  3D1.2 (Grouping of Closely Related 
Counts). Although subsection (d) of Sec.  3D1.2 specifies that offenses 
covered by Sec.  2G1.1 are not grouped under the subsection, it does 
not specify whether or not offenses covered by Sec.  2G1.3 are so 
grouped. Part A would amend Sec.  3D1.2(d) to provide that offenses 
covered by Sec.  2G1.3, like offenses covered by Sec.  2G1.1, are not 
grouped under subsection (d).
    Part B revises the guidelines to address the fact that the Bureau 
of Prisons (``BOP'') no longer operates a shock incarceration program 
as described in Sec.  5F1.7 (Shock Incarceration Program (Policy 
Statement)). Part B would amend the Commentary to Sec.  5F1.7 to 
reflect the fact that BOP no longer operates the program.

(A) Grouping of Offenses Covered by Sec.  2G1.3

    Synopsis of Proposed Amendment: Part A of the proposed amendment 
revises Sec.  3D1.2 (Grouping of Closely Related Counts) to provide 
that offenses covered by Sec.  2G1.3 (Promoting a Commercial Sex Act or 
Prohibited

[[Page 7229]]

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) are not grouped under Sec.  3D1.2(d).
    Section 3D1.2 addresses the grouping of closely related counts for 
purposes of determining the offense level when a defendant has been 
convicted on multiple counts. Subsection (d) states that counts are 
grouped together ``[w]hen the offense level is determined largely on 
the basis of the total amount of harm or loss, the quantity of a 
substance involved, or some other measure of aggregate harm, or if the 
offense behavior is ongoing or continuous in nature and the offense 
guideline is written to cover such behavior.'' Subsection (d) also 
contains lists of (1) guidelines for which the offenses covered by the 
guideline are to be grouped under the subsection and (2) guidelines for 
which the covered offenses are specifically excluded from grouping 
under the subsection.
    Section 2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual 
Conduct with an Individual Other than a Minor) is included in the list 
of guidelines for which the covered offenses are excluded from grouping 
under Sec.  3D1.2(d). Section 2G1.3 is, however, not included on that 
list, even though several offenses that are referenced to Sec.  2G1.3 
when the offense involves a minor are referenced to Sec.  2G1.1 when 
the offense involves an individual other than a minor. In addition, 
several offenses that were referenced to Sec.  2G1.1 before Sec.  2G1.3 
was promulgated are now referenced to Sec.  2G1.3. See USSG App. C, 
Amendment 664 (effective Nov. 1, 2004). Furthermore, Application Note 6 
of the Commentary to Sec.  2G1.3 states that multiple counts under 
Sec.  2G1.3 are not to be grouped.
    Section 2G1.3 is also not included on the list of guidelines for 
which the covered offenses are to be grouped under Sec.  3D1.2(d). 
Because Sec.  2G1.3 is included on neither list, Sec.  3D.1(d) provides 
that ``grouping under [the] subsection may or may not be appropriate 
and a ``case-by-case determination must be made based upon the facts of 
the case and the applicable guideline (including specific offense 
characteristics and other adjustments) used to determine the offense 
level.''
    Part A of the proposed amendment would amend Sec.  3D1.2(d) to add 
Sec.  2G1.3 to the list of guidelines for which the covered offenses 
are specifically excluded from grouping.
Proposed Amendment
    Section 3D1.2(d) is amended by striking ``Sec. Sec.  2G1.1, 2G2.1'' 
and inserting ``Sec. Sec.  2G1.1, 2G1.3, 2G2.1''.

(B) Policy Statement on Shock Incarceration Programs

    Synopsis of Proposed Amendment: Part B of the proposed amendment 
revises the guidelines to address the fact that the Bureau of Prisons 
(``BOP'') no longer operates a shock incarceration program as described 
in Sec.  5F1.7 (Shock Incarceration Program (Policy Statement)) and the 
corresponding commentary.
    Section 4046 of title 18, United States Code, authorizes BOP to 
place any person who has been sentenced to a term of imprisonment of 
more than 12 but not more than 30 months in a shock incarceration 
program if the person consents to that placement. Sections 3582(a) and 
3621(b)(4) of title 18 authorize a court, in imposing sentence, to make 
a recommendation regarding the type of prison facility that would be 
appropriate for the defendant. In making such a recommendation, the 
court ``shall consider any pertinent policy statements issued by the 
Sentencing Commission.'' 18 U.S.C. 3582(a).
    Section 5F1.7 provides that, pursuant to sections 3582(a) and 
3621(b)(4), a sentencing court may recommend that a defendant who meets 
the criteria set forth in section 4046 participate in a shock 
incarceration program. The Commentary to Sec.  5F1.7 describes the 
authority for BOP to operate a shock incarceration program and the 
procedures that the BOP established in 1990 regarding operation of such 
a program.
    In 2008, BOP terminated its shock incarceration program and removed 
the rules governing its operation. Part B of the proposed amendment 
would amend the Commentary to Sec.  5F1.7 to reflect those 
developments. It would also correct two typographical errors in the 
commentary.
Proposed Amendment
    The Commentary to Sec.  5F1.7 captioned ``Background'' is amended--
    by striking ``six months'' and inserting ``6 months'';
    by striking ``as the Bureau deems appropriate. 18 U.S.C. 4046.' '' 
and inserting ``as the Bureau deems appropriate.' 18 U.S.C. 4046.'';
    and by striking the final paragraph as follows:
    ``The Bureau of Prisons has issued an operations memorandum (174-90 
(5390), November 20, 1990) that outlines eligibility criteria and 
procedures for the implementation of this program (which the Bureau of 
Prisons has titled `intensive confinement program'). Under these 
procedures, the Bureau will not place a defendant in an intensive 
confinement program unless the sentencing court has approved, either at 
the time of sentencing or upon consultation after the Bureau has 
determined that the defendant is otherwise eligible. In return for the 
successful completion of the `intensive confinement' portion of the 
program, the defendant is eligible to serve the remainder of his term 
of imprisonment in a graduated release program comprised of community 
corrections center and home confinement phases.'',
    and inserting the following:
    ``In 1990, the Bureau of Prisons issued an operations memorandum 
(174-90 (5390), November 20, 1990) that outlined eligibility criteria 
and procedures for the implementation of a shock incarceration program 
(which the Bureau of Prisons titled the `intensive confinement 
program'). In 2008, however, the Bureau of Prisons terminated the 
program and removed the rules governing its operation. See 73 FR 39863 
(July 11, 2008).''.

13. Technical

    Synopsis of Proposed Amendment: This proposed amendment would make 
technical and other non-substantive changes to the Guidelines Manual.
    Part A of the proposed amendment would make technical changes to 
provide updated references to certain sections in the United States 
Code that were redesignated in legislation. The Frank LoBiondo Coast 
Guard Authorization Act of 2018, Public Law 115-282 (Dec. 4, 2018) 
(hereinafter ``the Act''), among other things, established a new 
chapter 700 (Ports and Waterway Safety) in subtitle VII (Security and 
Drug Enforcement) of title 46 (Shipping) of the United States Code. 
Section 401 of the Act repealed the Ports and Waterways Safety Act of 
1972, previously codified in 33 U.S.C. 1221-1232b, and restated its 
provisions with some revisions in the new chapter 700 of title 46, 
specifically at 46 U.S.C. 70001-70036. Appendix A (Statutory Index) 
includes references to Chapter Two guidelines for both former 33 U.S.C. 
1227(b) and 1232(b). Specifically, former section 1227(b) is referenced 
to Sec. Sec.  2J1.1 (Contempt) and 2J1.5 (Failure to Appear by 
Defendant), while former section 1232(b) is referenced to Sec.  2A2.4

[[Page 7230]]

(Obstructing or Impeding Officers). Part A of the proposed amendment 
would amend Appendix A to delete the references to 33 U.S.C. 1227(b) 
and 1232(b) and replace them with updated references to 46 U.S.C. 
70035(b) and 70036(b). The Act did not make substantive revisions to 
either of these provisions.
    Part B of the proposed amendment would make technical changes to 
reflect the editorial reclassification of certain sections in the 
United States Code. Effective December 1, 2015, the Office of Law 
Revision Counsel eliminated the Appendix to title 50 of the United 
States Code and transferred the non-obsolete provisions to new chapters 
49 to 57 of title 50 and to other titles of the United States Code. To 
reflect the new section numbers of the reclassified provisions, Part B 
of the proposed amendment would make changes to Sec.  2M4.1 (Failure to 
Register and Evasion of Military Service), Sec.  2M5.1 (Evasion of 
Export Controls; Financial Transactions with Countries Supporting 
International Terrorism), and Appendix A. Similarly, effective 
September 1, 2016, the Office of Law Revision Counsel also transferred 
certain provisions from Chapter 14 of title 25 to four new chapters in 
title 25 in order to improve the organization of the title. To reflect 
these changes, Part B of the proposed amendment would make further 
changes to Appendix A.
    Part C of the proposed amendment would make certain technical 
changes to the Commentary to Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy). First, Part C of the 
proposed amendment would amend the Drug Conversion Tables at 
Application Note 8(D) and the Typical Weight Per Unit Table at 
Application Note 9 to reorganize the controlled substances contained 
therein in alphabetical order to make the tables more user-friendly. It 
would also make minor changes to the controlled substance references to 
promote consistency in the use of capitalization, commas, 
parentheticals, and slash symbols throughout the Drug Conversion 
Tables. For example, the proposed amendment would change the reference 
to ``Phencyclidine (actual)/PCP (actual)'' to ``Phencyclidine (PCP) 
(actual).'' Second, Part C of the proposed amendment would make 
clerical changes throughout the Commentary to correct some 
typographical errors. Finally, Part C of the proposed amendment would 
amend the Background Commentary to add a specific reference to 
Amendment 808, which replaced the term ``marihuana equivalency'' with 
the new term ``converted drug weight'' and changed the title of the 
``Drug Equivalency Tables'' to ``Drug Conversion Tables.'' See USSG 
App. C, amend. 808 (effective Nov. 1, 2018).
    Part D of the proposed amendment would make technical changes to 
the Commentary to Sec. Sec.  2A4.2 (Demanding or Receiving Ransom 
Money), 2A6.1 (Threatening or Harassing Communications; Hoaxes; False 
Liens), and 2B3.2 (Extortion by Force or Threat of Injury or Serious 
Damage), and to Appendix A, to provide references to the specific 
applicable provisions of 18 U.S.C. 876.
    Part E of the proposed amendment would make technical changes to 
the commentary of several guidelines in Chapter Eight (Sentencing of 
Organizations). First, the proposed amendment would replace the term 
``prior criminal adjudication,'' as found and defined in Application 
Note 3(G) of Sec.  8A1.2 (Application Instructions--Organizations), 
with ``criminal adjudication'' to better reflect how that term is used 
throughout Chapter Eight. In addition, the proposed amendment would 
make conforming changes to the Commentary to Sec.  8C2.5 (Culpability 
Score) to account for the new term. Part E of the proposed amendment 
would also make changes to the Commentary to Sec.  8C3.2 (Payment of 
the Fine--Organizations). Section 207 of the Mandatory Victims 
Restitution Act of 1996, Public Law 104-132 (Apr. 24, 1996), amended 18 
U.S.C. 3572(d) to eliminate the requirement that if the court permits 
something other than the immediate payment of a fine or other monetary 
payment, the period for payment shall not exceed five years. Part E of 
the proposed amendment would revise Application Note 1 of Sec.  8C3.2 
to reflect the current language of 18 U.S.C. 3572(d) by providing that 
if the court permits other than immediate payment of a fine or other 
monetary payment, the period provided for payment shall be the shortest 
time in which full payment can reasonably be made.
    Part F of the proposed amendment would make clerical changes to 
correct typographical errors in: Sec.  1B1.1 (Application 
Instructions); Sec.  1B1.3 (Relevant Conduct (Factors that Determine 
the Guideline Range)); Sec.  1B1.4 (Information to be Used in Imposing 
Sentence (Selecting a Point Within the Guideline Range or Departing 
from the Guidelines)); Sec.  1B1.10 (Reduction in Term of Imprisonment 
as a Result of Amended Guideline Range (Policy Statement)); Sec.  2D2.3 
(Operating or Directing the Operation of a Common Carrier Under the 
Influence of Alcohol or Drugs); Sec.  2G2.1 (Sexually Exploiting a 
Minor by Production of Sexually Explicit Visual or Printed Material; 
Custodian Permitting Minor to Engage in Sexually Explicit Conduct; 
Advertisement for Minors to Engage in Production); Sec.  2H3.1 
(Interception of Communications; Eavesdropping; Disclosure of Certain 
Private or Protected Information); Sec.  2K2.1 (Unlawful Receipt, 
Possession, or Transportation of Firearms or Ammunition; Prohibited 
Transactions Involving Firearms or Ammunition); Sec.  2M1.1 (Treason); 
Sec.  2T1.1 (Tax Evasion; Willful Failure to File Return, Supply 
Information, or Pay Tax; Fraudulent or False Returns, Statements, or 
Other Documents); the Introductory Commentary to Chapter Two, Part T, 
Subpart 2 (Alcohol and Tobacco Taxes); the Introductory Commentary to 
Chapter Two, Part T, Subpart 3 (Customs Taxes); the Introductory 
Commentary to Chapter Three, Part A (Victim-Related Adjustments); Sec.  
3A1.1 (Hate Crime Motivation or Vulnerable Victim); the Introductory 
Commentary to Chapter Three, Part B (Role in the Offense); Sec.  3C1.1 
(Obstructing or Impeding the Administration of Justice); the 
Introductory Commentary to Chapter Three, Part D (Multiple Counts); 
Sec.  3D1.1 (Procedure for Determining Offense Level on Multiple 
Counts); Sec.  3D1.2 (Groups of Closely Related Counts); Sec.  3D1.3 
(Offense Level Applicable to Each Group of Closely Related Counts); 
Sec.  3D1.4 (Determining the Combined Offense Level); Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category (Policy 
Statement)); Sec.  4B1.1 (Career Offender); Sec.  5C1.1 (Imposition of 
a Term of Imprisonment); Sec.  5E1.1 (Restitution); Sec.  5E1.3 
(Special Assessments); Sec.  5E1.4 (Forfeiture); the Introductory 
Commentary to Chapter Five, Part H (Specific Offender Characteristics); 
the Introductory Commentary to Chapter Six, Part A (Sentencing 
Procedures); Chapter Seven, Part A (Introduction to Chapter Seven); 
Sec.  8B1.1 (Restitution--Organizations); Sec.  8B2.1 (Effective 
Compliance and Ethics Program); Sec.  8C3.3 (Reduction of Fine Based on 
Inability to Pay); and Sec.  8E1.1 (Special Assessments--
Organizations).
    Part G of the proposed amendments would also make clerical changes 
to the Commentary to Sec. Sec.  1B1.11 (Use of Guidelines Manual in 
Effect on Date of Sentencing (Policy Statement)) and 5G1.3 (Imposition 
of a Sentence on a Defendant Subject to an Undischarged

[[Page 7231]]

Term of Imprisonment or Anticipated State Term of Imprisonment), to 
update the citation of Supreme Court cases. In addition, Part G of the 
proposed amendment would amend (1) the Commentary to Sec.  2K2.4 (Use 
of Firearm, Armor-Piercing Ammunition, or Explosive During or in 
Relation to Certain Crimes) to add a missing reference to 18 U.S.C. 
844(o); (2) the Commentary to Sec.  2M6.1 (Unlawful Activity Involving 
Nuclear Material, Weapons, or Facilities, Biological Agents, Toxins, or 
Delivery Systems, Chemical Weapons, or Other Weapons Of Mass 
Destruction; Attempt or Conspiracy), to delete the definitions of two 
terms that are not currently used in the guideline; (3) the Commentary 
to Sec. Sec.  2M5.3 (Providing Material Support or Resources to 
Designated Foreign Terrorist Organizations or Specially Designated 
Global Terrorists, or For a Terrorist Purpose) and 2T1.1 (Tax Evasion; 
Willful Failure to File Return, Supply Information, or Pay Tax; 
Fraudulent or False Returns, Statements, or Other Documents), to 
correct references to the Code of Federal Regulations; and (4) the 
Commentary to Sec.  3A1.2 (Official Victim), to add missing content in 
Application Note 3.
Proposed Amendment

(A) Frank LoBiondo Coast Guard Authorization Act of 2018

    Appendix A (Statutory Index) is amended--
    by striking the following line references:

``33 U.S.C. 1227(b) 2J1.1, 2J1.5
33 U.S.C. 1232(b)(2) 2A2.4'';

    and by inserting before the line referenced to 46 U.S.C. App. Sec.  
1707a(f)(2) the following new line references:

``46 U.S.C. 70035(b) 2J1.1, 2J1.5
46 U.S.C. 70036(b) 2A2.4''.

(B) Reclassification of Sections of United States Code

    The Commentary to Sec.  2M4.1 captioned ``Statutory Provisions'' is 
amended by striking ``50 U.S.C. App. Sec.  462'' and inserting ``50 
U.S.C. Sec.  3811''.
    The Commentary to Sec.  2M5.1 captioned ``Statutory Provisions'' is 
amended by striking ``50 U.S.C. App. Sec. Sec.  2401-2420'' and 
inserting ``50 U.S.C. Sec. Sec.  4601-4623. For additional statutory 
provision(s), see Appendix A (Statutory Index)''.
    The Commentary to Sec.  2M5.1 captioned ``Application Notes'' is 
amended--
    in Note 3 by striking ``50 U.S.C. App. Sec.  2410'' and inserting 
``50 U.S.C. Sec.  4610'';
    and in Note 4 by striking ``50 U.S.C. App. 2405'' and inserting 
``50 U.S.C. Sec.  4605''.
    Appendix A (Statutory Index) is amended--
    in the line referenced to 25 U.S.C. Sec. Sec.  450d by striking 
``Sec.  450d'' and inserting ``Sec.  5306'';
    by striking the following line references:

``50 U.S.C. App. Sec.  462 2M4.1
50 U.S.C. App. Sec.  527(e) 2X5.2
50 U.S.C. App. Sec.  2410 2M5.1'';

    and inserting before the line referenced to 52 U.S.C. Sec. Sec.  
10307(c) the following new line references:

``50 U.S.C. Sec.  3811 2M4.1
50 U.S.C. Sec.  3937(e) 2X5.2
50 U.S.C. Sec.  4610 2M5.1''.

(C) Technical Changes to Commentary to Sec.  2D1.1

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended--
    in Note 8(A) by striking ``the statute (21 U.S.C. Sec.  841(b)(1)), 
as the primary basis'' and inserting ``the statute (21 U.S.C. Sec.  
841(b)(1)) as the primary basis'', and by striking ``fentanyl, LSD and 
marihuana'' and inserting ``fentanyl, LSD, and marihuana'';
    in Note 8(D)--
    under the heading relating to Schedule I or II Opiates, by striking 
the following:

``1 gm of Heroin = 1 kg
1 gm of Dextromoramide = 670 gm
1 gm of Dipipanone = 250 gm
1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine/MPPP = 700 gm
1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine/PEPAP = 700 gm
1 gm of Alphaprodine = 100 gm
1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] 
Propanamide) = 2.5 kg
1 gm of a Fentanyl Analogue = 10 kg
1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg
1 gm of Levorphanol = 2.5 kg
1 gm of Meperidine/Pethidine = 50 gm
1 gm of Methadone = 500 gm
1 gm of 6-Monoacetylmorphine = 1 kg
1 gm of Morphine = 500 gm
1 gm of Oxycodone (actual) = 6700 gm
1 gm of Oxymorphone = 5 kg
1 gm of Racemorphan = 800 gm
1 gm of Codeine = 80 gm
1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm
1 gm of Ethylmorphine = 165 gm
1 gm of Hydrocodone (actual) = 6700 gm
1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm
1 gm of Opium = 50 gm
1 gm of Levo-alpha-acetylmethadol (LAAM) = 3 kg'',
    and inserting the following:

``1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine (PEPAP) = 
700 gm
1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine (MPPP) = 700 gm
1 gm of 6-Monoacetylmorphine = 1 kg
1 gm of Alphaprodine = 100 gm
1 gm of Codeine = 80 gm
1 gm of Dextromoramide = 670 gm
1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm
1 gm of Dipipanone = 250 gm
1 gm of Ethylmorphine = 165 gm
1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] 
Propanamide) = 2.5 kg
1 gm of a Fentanyl Analogue = 10 kg
1 gm of Heroin = 1 kg
1 gm of Hydrocodone (actual) = 6,700 gm
1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg
1 gm of Levo-alpha-acetylmethadol (LAAM) = 3 kg
1 gm of Levorphanol = 2.5 kg
1 gm of Meperidine/Pethidine = 50 gm
1 gm of Methadone = 500 gm
1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm
1 gm of Morphine = 500 gm
1 gm of Opium = 50 gm
1 gm of Oxycodone (actual) = 6,700 gm
1 gm of Oxymorphone = 5 kg
1 gm of Racemorphan = 800 gm'';

    under the heading relating to Cocaine and Other Schedule I and II 
Stimulants (and their immediate precursors), by striking the following:

``1 gm of Cocaine = 200 gm
1 gm of N-Ethylamphetamine = 80 gm
1 gm of Fenethylline = 40 gm
1 gm of Amphetamine = 2 kg
1 gm of Amphetamine (Actual) = 20 kg
1 gm of Methamphetamine = 2 kg
1 gm of Methamphetamine (Actual) = 20 kg
1 gm of ``Ice'' = 20 kg
1 gm of Khat = .01 gm
1 gm of 4-Methylaminorex (`Euphoria') = 100 gm
1 gm of Methylphenidate (Ritalin) = 100 gm
1 gm of Phenmetrazine = 80 gm
1 gm Phenylacetone/P2P (when possessed for the purpose of 
manufacturing methamphetamine) = 416 gm
1 gm Phenylacetone/P2P (in any other case) = 75 gm
1 gm Cocaine Base (`Crack') = 3,571 gm
1 gm of Aminorex = 100 gm
1 gm of N-N-Dimethylamphetamine = 40 gm
1 gm of N-Benzylpiperazine = 100 gm'',

    and inserting the following:

``1 gm of 4-Methylaminorex (`Euphoria') = 100 gm

[[Page 7232]]

1 gm of Aminorex = 100 gm
1 gm of Amphetamine = 2 kg
1 gm of Amphetamine (actual) = 20 kg
1 gm of Cocaine = 200 gm
1 gm of Cocaine Base (`Crack') = 3,571 gm
1 gm of Fenethylline = 40 gm
1 gm of `Ice' = 20 kg
1 gm of Khat = .01 gm
1 gm of Methamphetamine = 2 kg
1 gm of Methamphetamine (actual) = 20 kg
1 gm of Methylphenidate (Ritalin) = 100 gm
1 gm of N-Benzylpiperazine = 100 gm
1 gm of N-Ethylamphetamine = 80 gm
1 gm of N-N-Dimethylamphetamine = 40 gm
1 gm of Phenmetrazine = 80 gm
1 gm of Phenylacetone (P2P) (when possessed for the purpose 
of manufacturing methamphetamine) = 416 gm
1 gm of Phenylacetone (P2P) (in any other case) = 75 gm'';

    under the heading relating to Synthetic Cathinones (except Schedule 
III, IV, and V Substances), by striking ``a synthetic cathinone'' and 
inserting ``a Synthetic Cathinone'';
    under the heading relating to LSD, PCP, and Other Schedule I and II 
Hallucinogens (and their immediate precursors), by striking the 
following:

``1 gm of Bufotenine = 70 gm
1 gm of D-Lysergic Acid Diethylamide/Lysergide/LSD = 100 kg
1 gm of Diethyltryptamine/DET = 80 gm
1 gm of Dimethyltryptamine/DM = 100 gm
1 gm of Mescaline = 10 gm
1 gm of Mushrooms containing Psilocin and/or Psilocybin (Dry) = 1 gm
1 gm of Mushrooms containing Psilocin and/or Psilocybin (Wet) = 0.1 gm
1 gm of Peyote (Dry) = 0.5 gm
1 gm of Peyote (Wet) = 0.05 gm
1 gm of Phencyclidine/PCP = 1 kg
1 gm of Phencyclidine (actual)/PCP (actual) = 10 kg
1 gm of Psilocin = 500 gm
1 gm of Psilocybin = 500 gm
1 gm of Pyrrolidine Analog of Phencyclidine/PHP = 1 kg
1 gm of Thiophene Analog of Phencyclidine/TCP = 1 kg
1 gm of 4-Bromo-2,5-Dimethoxyamphetamine/DOB = 2.5 kg
1 gm of 2,5-Dimethoxy-4-methylamphetamine/DOM = 1.67 kg
1 gm of 3,4-Methylenedioxyamphetamine/MDA = 500 gm
1 gm of 3,4-Methylenedioxymethamphetamine/MDMA = 500 gm
1 gm of 3,4-Methylenedioxy-N-ethylamphetamine/MDEA = 500 gm
1 gm of Paramethoxymethamphetamine/PMA = 500 gm
1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC = 680 gm
1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 1 kg'',

    and inserting the following:

``1 gm of 1-Piperidinocyclohexanecarbonitrile (PCC) = 680 gm
1 gm of 4-Bromo-2,5-Dimethoxyamphetamine (DOB) = 2.5 kg
1 gm of 2,5-Dimethoxy-4-methylamphetamine (DOM) = 1.67 kg
1 gm of 3,4-Methylenedioxyamphetamine (MDA) = 500 gm
1 gm of 3,4-Methylenedioxymethamphetamine (MDMA) = 500 gm
1 gm of 3,4-Methylenedioxy-N-ethylamphetamine (MDEA) = 500 gm
1 gm of Bufotenine = 70 gm
1 gm of D-Lysergic Acid Diethylamide/Lysergide (LSD) = 100 kg
1 gm of Diethyltryptamine (DET) = 80 gm
1 gm of Dimethyltryptamine (DM) = 100 gm
1 gm of Mescaline = 10 gm
1 gm of Mushrooms containing Psilocin and/or Psilocybin (dry) = 1 gm
1 gm of Mushrooms containing Psilocin and/or Psilocybin (wet) = 0.1 gm
1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 1 kg
1 gm of Paramethoxymethamphetamine (PMA) = 500 gm
1 gm of Peyote (dry) = 0.5 gm
1 gm of Peyote (wet) = 0.05 gm
1 gm of Phencyclidine (PCP) = 1 kg
1 gm of Phencyclidine (PCP) (actual) = 10 kg
1 gm of Psilocin = 500 gm
1 gm of Psilocybin = 500 gm
1 gm of Pyrrolidine Analog of Phencyclidine (PHP) = 1 kg
1 gm of Thiophene Analog of Phencyclidine (TCP) = 1 kg'';

    under the heading relating to Schedule I Marihuana, by striking the 
following:

``1 gm of Marihuana/Cannabis, granulated, powdered, etc. = 1 gm
1 gm of Hashish Oil = 50 gm
1 gm of Cannabis Resin or Hashish = 5 gm
1 gm of Tetrahydrocannabinol, Organic = 167 gm
1 gm of Tetrahydrocannabinol, Synthetic = 167 gm'',

    and inserting the following:

``1 gm of Cannabis Resin or Hashish = 5 gm
1 gm of Hashish Oil = 50 gm
1 gm of Marihuana/Cannabis (granulated, powdered, etc.) = 1 gm
1 gm of Tetrahydrocannabinol (organic) = 167 gm
1 gm of Tetrahydrocannabinol (synthetic) = 167 gm'';

    under the heading relating to Synthetic Cannabinoids (except 
Schedule III, IV, and V Substances), by striking ``a synthetic 
cannabinoid'' and inserting ``a Synthetic Cannabinoid'', and by 
striking `` `Synthetic cannabinoid,' for purposes of this guideline'' 
and inserting `` `Synthetic Cannabinoid,' for purposes of this 
guideline'';
    under the heading relating to Schedule I or II Depressants (except 
gamma-hydroxybutyric acid), by striking ``except gamma-hydroxybutyric 
acid'' both places such term appears and inserting ``except Gamma-
hydroxybutyric Acid'';
    under the heading relating to Gamma-hydroxybutyric Acid, by 
striking ``of gamma-hydroxybutyric acid'' and inserting ``of Gamma-
hydroxybutyric Acid'';
    under the heading relating to Schedule III Substances (except 
ketamine), by striking ``except ketamine'' in the heading and inserting 
``except Ketamine'';
    under the heading relating to Ketamine, by striking ``of ketamine'' 
and inserting ``of Ketamine'';
    under the heading relating to Schedule IV (except flunitrazepam), 
by striking ``except flunitrazepam'' in the heading and inserting 
``except Flunitrazepam'';
    under the heading relating to List I Chemicals (relating to the 
manufacture of amphetamine or methamphetamine), by striking ``of 
amphetamine or methamphetamine'' in the heading and inserting ``of 
Amphetamine or Methamphetamine'';
    under the heading relating to Date Rape Drugs (except 
flunitrazepam, GHB, or ketamine), by striking ``except flunitrazepam, 
GHB, or ketamine'' in the heading and inserting ``except Flunitrazepam, 
GHB, or Ketamine'', by striking ``of 1,4-butanediol'' and inserting 
``of 1,4-Butanediol'', and by striking ``of gamma butyrolactone'' and 
inserting ``of Gamma Butyrolactone'';
    in Note 9, under the heading relating to Hallucinogens, by striking 
the following:

``MDA 250 mg
MDMA 250 mg
Mescaline 500 mg
PCP* 5 mg
Peyote (dry) 12 gm
Peyote (wet) 120 gm

[[Page 7233]]

Psilocin* 10 mg
Psilocybe mushrooms (dry) 5 gm
Psilocybe mushrooms (wet) 50 gm
Psilocybin* 10 mg
2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg'',

    and inserting the following:

``2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg
MDA 250 mg
MDMA 250 mg
Mescaline 500 mg
PCP* 5 mg
Peyote (dry) 12 gm
Peyote (wet) 120 gm
Psilocin* 10 mg
Psilocybe mushrooms (dry) 5 gm
Psilocybe mushrooms (wet) 50 gm
Psilocybin* 10 mg'';

    and in Note 21, by striking ``Section Sec.  5C1.2(b)'' and 
inserting ``Section 5C1.2(b)''.
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
by striking ``Public Law 103-237'' and inserting ``Public Law 104-
237'', and by inserting after ``to change the title of the Drug 
Equivalency Tables to the `Drug Conversion Tables.' '' the following: 
``See USSG App. C, Amendment 808 (effective November 1, 2018).''.

(D) References to 18 U.S.C. 876

    The Commentary to Sec.  2A4.2 captioned ``Statutory Provisions'' is 
amended by striking ``Sec. Sec.  876,'' and inserting ``Sec. Sec.  
876(a),''.
    The Commentary to Sec.  2A6.1 captioned ``Statutory Provisions'' is 
amended by striking ``876,'' and inserting ``876(c),''.
    The Commentary to Sec.  2B3.2 captioned ``Statutory Provisions'' is 
amended by striking ``Sec. Sec.  875(b), 876,'' and inserting 
``Sec. Sec.  875(b), (d), 876(b), (d),''.
    Appendix A (Statutory Index) is amended--
    by striking the following line reference:

``18 U.S.C. 876 2A4.2,2A6.1, 2B3.2, 2B3.3''

    and by inserting before the line referenced to 18 U.S.C. 877 the 
following new line references:

``18 U.S.C. 876(a) 2A4.2, 2B3.2
18 U.S.C. 876(b) 2B3.2
18 U.S.C. 876(c) 2A6.1
18 U.S.C. 876(d) 2B3.2, 2B3.3''.

(E) Technical Changes to Commentary in Chapter Eight

    The Commentary to Sec.  8A1.2 captioned ``Application Notes'' is 
amended in Note 3(G) by striking '' `Prior criminal adjudication' '' 
and inserting '' `Criminal Adjudication' ''.
    The Commentary to Sec.  8C2.5 captioned ``Application Notes'' is 
amended in Note 1 by striking '' `prior criminal adjudication' '' and 
inserting '' `criminal adjudication' ''.
    The Commentary to Sec.  8C3.2 captioned ``Application Note'' is 
amended in Note 1 by striking ``the period provided for payment shall 
in no event exceed five years'' and inserting ``the period provided for 
payment shall be the shortest time in which full payment can reasonably 
be made''.

(F) Clerical Changes to Correct Typographical Errors

    The Commentary to Sec.  1B1.1 captioned ``Application Notes'' is 
amended in Note 1(E) by striking ``(e.g. a defendant'' and inserting 
``(e.g., a defendant''.
    The Commentary to Sec.  1B1.3 captioned ``Background'' is amended 
by striking ``the guidelines in those Chapters'' and inserting ``the 
guidelines in those chapters''.
    The Commentary to Sec.  1B1.4 captioned ``Background'' is amended 
by striking ``in imposing sentence within that range'' and inserting 
``in imposing a sentence within that range''.
    The Commentary to Sec.  1B1.10 captioned ``Background'' is amended 
by striking ``Title 18'' and inserting ``title 18''.
    The Commentary to Sec.  2D2.3 captioned ``Background'' is amended 
by striking ``Section 6482'' and inserting ``section 6482''.
    Section 2G2.1(b)(6)(A) is amended by striking ``engage sexually 
explicit conduct'' and inserting ``engage in sexually explicit 
conduct''.
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended in Note 5(B) by striking ``(e.g. physical harm'' and inserting 
``(e.g., physical harm''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 8(A) by striking ``However, it the offense involved a 
stolen firearm'' and inserting ``However, if the offense involved a 
stolen firearm''.
    The Commentary to Sec.  2M1.1 captioned ``Application Notes'' is 
amended by striking ``this Part'' and inserting ``this part''.
    The Commentary to Sec.  2T1.1 captioned ``Application Notes'' is 
amended in Note 7 by striking ``Subchapter C corporation'' and 
inserting ``subchapter C corporation''.
    The Commentary to Sec.  2T1.1 captioned ``Background'' is amended 
by striking ``the treasury'' and inserting ``the Treasury''.
    Chapter Two, Part T, Subpart 2 is amended in the introductory 
commentary by striking ``Parts I-IV of Subchapter J of Chapter 51 of 
Subtitle E of Title 26'' and inserting ``parts I-IV of subchapter J of 
chapter 51 of subtitle E of title 26, United States Code''.
    Chapter Two, Part T, Subpart 3 is amended in the introductory 
commentary by striking ``Subpart'' both places such term appears and 
inserting ``subpart''.
    Chapter Three, Part A is amended in the introductory commentary by 
striking ``Part'' and inserting ``part''.
    The Commentary to Sec.  3A1.1 captioned ``Background'' is amended 
by striking ``Section 280003'' and inserting ``section 280003''.
    Chapter Three, Part B is amended in the introductory commentary by 
striking ``Part'' and inserting ``part''.
    The Commentary to Sec.  3C1.1 captioned ``Application Notes'' is 
amended in Note 4(I) by striking ``Title 18'' and inserting ``title 
18''.
    Chapter Three, Part D is amended in the introductory commentary by 
striking ``Part'' each place such term appears and inserting ``part''.
    The Commentary to Sec.  3D1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``Part'' both places such term appears 
and inserting ``part''.
    The Commentary to Sec.  3D1.1 captioned ``Background'' is amended 
by striking ``Chapter 3'' and inserting ``Chapter Three'', and by 
striking ``Chapter Four'' and inserting ``Chapter Four''.
    The Commentary to Sec.  3D1.2 captioned ``Background'' is amended 
by striking ``Part'' both places such term appears and inserting 
``part''.
    The Commentary to Sec.  3D1.3 captioned ``Background'' is amended 
by striking ``Part'' and inserting ``part''.
    The Commentary to Sec.  3D1.4 captioned ``Background'' is amended 
by striking ``Part'' and inserting ``part''.
    The Commentary to Sec.  4A1.3 captioned ``Application Notes'' is 
amended in Note 2(C)(v) by striking ``this Chapter'' and inserting 
``this chapter''.
    The Commentary to Sec.  4B1.1 captioned ``Background'' is amended 
by striking ``Title 28'' and inserting ``title 28''.
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended in Note 1 by striking ``this Chapter'' and inserting ``this 
chapter''.
    The Commentary to Sec.  5E1.1 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Chapter'' both places such term appears 
and inserting ``chapter''; by striking ``Title 18'' both places such 
term appears and inserting ``title 18''; and by striking ``Subchapter 
C'' and inserting ``subchapter C''.
    The Commentary to Sec.  5E1.1 captioned ``Background'' is amended 
by striking ``Title 18'' and inserting ``title 18''.
    The Commentary to Sec.  5E1.3 captioned ``Background'' is amended 
by striking ``Title 18'' and inserting ``title 18'', and

[[Page 7234]]

by striking ``The Victims'' and inserting ``the Victims''.
    The Commentary to Sec.  5E1.4 captioned ``Background'' is amended 
by striking ``Titles'' and inserting ``titles''.
    Chapter Five, Part H is amended in the introductory commentary by 
striking ``Part'' each place such term appears and inserting ``part''.
    Chapter Six, Part A is amended in the introductory commentary by 
striking ``Part'' and inserting ``part''.
    Chapter Seven, Part A, Subpart 3(b) (Choice between Theories) is 
amended by striking ``Title 21'' and inserting ``title 21''.
    The Commentary to Sec.  8B1.1 captioned ``Background'' is amended 
by striking ``Title 18'' and inserting ``title 18''.
    The Commentary to Sec.  8B2.1 captioned ``Application Notes'' is 
amended in Note 1, in the paragraph that begins '' `Governing 
authority' means'' by striking ``means the (A) the Board'' and 
inserting ``means (A) the Board''.
    Section 8C3.3(a) is amended by striking ``its ability'' and 
inserting ``the ability of the organization''.
    The Commentary to Sec.  8E1.1 captioned ``Background'' is amended 
by striking ``Title 18'' and inserting ``title 18''.

(G) Additional Clerical Changes to Guideline Commentary

    The Commentary to Sec.  1B1.11 captioned ``Background'' is amended 
by striking ``133 S. Ct. 2072, 2078'' and inserting ``569 U.S. 530, 
533''.
    The Commentary to Sec.  2K2.4 captioned ``Statutory Provisions'' is 
amended by striking ``Sec. Sec.  844(h)'' and inserting ``Sec. Sec.  
844(h), (o)''.
    The Commentary to Sec.  2M5.3 captioned ``Application Notes'' is 
amended in Note 1, in the paragraph that begins '' `Specially 
designated global terrorist' has'' by striking ``Sec.  594.513'' and 
inserting ``Sec.  594.310''.
    The Commentary to Sec.  2M6.1 captioned ``Application Notes'' is 
amended in Note 1--
    by striking the following paragraph:
    `` `Restricted person' has the meaning given that term in 18 U.S.C. 
175b(d)(2).'',
    and by striking the following paragraph:
    `` `Vector' has the meaning given that term in 18 U.S.C. 178(4).''.
    The Commentary to Sec.  2T1.1 captioned ``Application Notes'' is 
amended in Note 6, in the paragraph that begins '' `Gross income' has'' 
by striking ``Sec.  1.61'' and inserting ``Sec.  1.61-1''.
    The Commentary to Sec.  3A1.2 captioned ``Application Notes'' is 
amended in Note 3 by striking ``the victim was a government officer or 
employee, or a member of the immediate family thereof'' and inserting 
``the victim was a government officer or employee, a former government 
officer or employee, or a member of the immediate family thereof''.
    The Commentary to Sec.  5G1.3 captioned ``Background'' is amended 
by striking ``132 S. Ct. 1463, 1468'' and inserting ``566 U.S. 231, 
236'', and by striking ``132 S. Ct. at 1468'' and inserting ``566 U.S. 
at 236''.

[FR Doc. 2023-01346 Filed 2-1-23; 8:45 am]
BILLING CODE 2210-40-P